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CITIZENS FOR A CLEAN ENVIRONMENT v. ZONING HEARING BOARD HANOVER TOWNSHIP V. ALLAN J. ALLAN. ALLAN J. ALLAN (01/15/76)

decided: January 15, 1976.

CITIZENS FOR A CLEAN ENVIRONMENT, BY ITS TRUSTEE AD LITEM, STANLEY WOJTOWICZ
v.
THE ZONING HEARING BOARD OF HANOVER TOWNSHIP V. ALLAN J. ALLAN. ALLAN J. ALLAN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Citizens for a Clean Environment, by its Trustee Ad Litem, Stanley Wojtowicz, v. Allan J. Allan, No. 3735 of 1974.

COUNSEL

Sherill T. Moyer, with him Gerald K. Morrison, Frank A. Sinon, Rhoads, Sinon & Reader, and, of counsel, Charles P. Gelso, for appellant.

Jerome L. Cohen, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 23 Pa. Commw. Page 14]

On February 20, 1974, Allan J. Allan applied to the Zoning Office of Hanover Township for a permit to erect a scrap metal processing plant within an S-1 zoning district of the township. Junk yards are permitted as special uses within S-1 districts but the ordinance does not indicate whether or not scrap metal processing facilities constitute junk yards or are separate uses. The Zoning Hearing Board of Hanover Township (Board) held a hearing on the application on March 14, 1974 at which numerous citizens and landowners appeared in opposition, including Stanley Wojtowicz. The Board, however, concluded that Allan's scrap metal processing plant was included within the concept of junk yard and granted his application on April 18, 1974. Some time after the hearing of March 14, 1974, Stanley Wojtowicz and other persons who opposed Allan's application, some of whom attended the hearing while others did not formed an association called Citizens For A Clean Environment (Citizens), for the purpose of appealing the Board's decision. Citizens by its trustee, Stanley Wojtowicz, then did appeal the Board's decision to the Court of Common Pleas of Luzerne County where Allan intervened and filed a motion to quash. After taking additional evidence that court denied Allan's motion and reversed the decision of the Board. Allan, therefore, was denied permits to erect his scrap metal processing plant, and he has now appealed to this Court.

In a zoning case where the court below took additional evidence, our scope of review is to determine whether or not the lower court abused its discretion or committed an error of law. Swift v. Zoning Hearing Board of Abington Township, 16 Pa. Commonwealth Ct. 356, 328 A.2d 901 (1974).

At the outset we must consider Allan's contention that the court below erred in failing to quash the appeal of Citizens from the Board decision to that court. It is well

[ 23 Pa. Commw. Page 15]

    established under the Pennsylvania Municipalities Planning Code*fn1 (MPC) that appeals to court from the decision of the zoning hearing board may be taken by any party aggrieved. Section 1007 of the MPC, 53 P.S. § 11007. Section 908(3) of the MPC, 53 P.S. § 10908(3) defines a party:

"The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board. The board shall have the power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the Board for that purpose." (Emphasis added.)

The record here indicates and the lower court found that Citizens was not a party before the Board, that its name had not been mentioned at the hearings and that it had not been formed until after the hearings when it was organized for the specific purpose of taking the appeal. It is clear, therefore, that Citizens had no standing to appeal the Board's decision. Northampton Residents Association v. Northampton Township Board of Supervisors, 14 Pa. Commonwealth Ct. 515, 322 A.2d 787 (1974).

It may be true, of course, that certain members of Citizens appeared before the Board. Such appearances, however, would not enable the organization to appeal an adverse decision in its own name. Cf. Northampton, supra. Moreover, the fact that Allan petitioned the lower court to require Citizens to post bond in their zoning appeal pursuant to Section 1008(4) of the MPC, 53 P.S. § 11008(4), did not amount to a waiver of his right to ...


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