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BARTON E. SCHLEGEL AND LUCILLE J. SCHLEGEL v. ZONING HEARING BOARD BOROUGH NORTHAMPTON AND MARKET OPERATORS (03/31/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 31, 1976.

BARTON E. SCHLEGEL AND LUCILLE J. SCHLEGEL, HIS WIFE, AND JOHN C. YASTRZAB AND CAROLINE YASTRZAB, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF NORTHAMPTON AND MARKET OPERATORS, INC., APPELLEES. (2 CASES)

Appeals from the Order of the Court of Common Pleas of Northampton County in case of Barton E. Schlegel and Lucille J. Schlegel, his wife, and John C. Yastrzab and Caroline Yastrzab his wife v. Zoning Hearing Board of the Borough of Northampton and Market Operators, Inc., No. 348 August Term, 1974.

COUNSEL

Martin Cohen, with him Robert M. Davison, for appellants.

Robert C. McFadden, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., and Blatt. Judges Mencer and Rogers did not participate. Opinion by Judge Wilkinson. Concurring Opinion by Judge Blatt.

Author: Wilkinson

[ 24 Pa. Commw. Page 185]

On September 26, 1974, the appellee zoning hearing board granted appellee corporation a variance to permit a change from one nonconforming use to another, thereby allowing the construction and operation of a retail food supermarket. Appellants, neighboring landowners, appealed that decision to the Court of Common Pleas of Northampton County on October 16, 1974. However, pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11008(4), appellee corporation petitioned the court to enter an order directing appellants to post a bond as a condition to proceeding with the appeal. A hearing was held on April 25, 1975, at which the only evidence presented was that by appellee corporation regarding the damages it would incur as a result of the litigation. The same day the court entered an order directing appellants to post a bond in the amount of $100,000.00 within 15 days of service of the order or else suffer dismissal of the appeal. On May 7, 1975, appellants, alleging that a $100,000.00 bond was without their financial means, petitioned the court to

[ 24 Pa. Commw. Page 186]

    take additional testimony regarding the availability of the bond to appellants and to amend the bond order of April 25, 1975, accordingly. The court entered an order the same day denying the petition.

Appellants have now appealed to this Court from both the order of April 25, 1975, and the order of May 7, 1975, challenging the constitutionality of Section 1008(4) and the discretion of the lower court in ordering the posting of the bond. The two appeals have been consolidated here for our determination.

As their first line of argument, appellants constitutionally attack Section 1008(4) on three grounds. Section 1008(4) provides:

"The filing of an appeal in court under this section, shall not stay the action appealed from but the appellants may petition the court having jurisdiction of zoning appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court."

First, appellants assert that the bond provisions of Section 1008(4) violate equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States by separating prospective appellants into those who can and those who cannot afford to post bond, i.e., discrimination on the basis of wealth. Second, appellants assert that the provisions violate due process of the law as guaranteed by the Fourteenth Amendment by denying to would-be appellants who cannot afford to post bond a right to be heard on appeal. We cannot agree.

[ 24 Pa. Commw. Page 187]

In a prior case, Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974),*fn1 we passed upon the constitutionality of similar bond provisions in Section 916 of the Code, 53 P.S. § 10916.*fn2 We there found that "the right of an individual to appeal from the issuance of a building permit to the owner of a neighboring property is not an exclusive precondition to the adjustment of a fundamental human relationship . . ." which is constitutionally protected, 13 Pa. Commonwealth Ct. at 410, 320 A.2d at 447-48; that the "bond requirement serves the purpose of providing financial protection for the victorious landowner who might sustain pecuniary loss as a result of lengthy litigation while at the same time screening frivolous appeals . . .", 13 Pa. Commonwealth Ct. at 410-11, 320 A.2d at 448; that "the State has an interest in pursuing both of the above objectives," 13 Pa. Commonwealth Ct. at 411, 320 A.2d at 448; and that the bond provisions are "rational means to effectuate the above interests. . . ." Id. Accordingly, we held that the bond requirement in Section 916 did not violate the equal protection or due process clauses of the Fourteenth Amendment. Since the provisions in Section 1008(4) are for all essential purposes identical to those in Section

[ 24 Pa. Commw. Page 188916]

,*fn3 our conclusions in Driscoll are equally applicable here and adequately dispose of appellants' first and second constitutional attacks without the need for further discussion.*fn4

Third, appellants assert that Section 1008(4) is unconstitutionally vague in that it fails to set forth any guidelines or standards by which the court can decide whether a bond should be granted. This assertion is without merit. The purpose of Section 1008(4), as stated above and as admitted by appellants, is to provide financial protection to a landowner successful in prior proceedings from pecuniary loss occasioned by delay attendant the appeal. Given this purpose, the court is furnished a sufficient standard, i.e., whether the landowner will sustain damages which can be reasonably anticipated as a result of the delay.

Even if Section 1008(4) is constitutionally sound, appellants, as their second line of argument, raise two challenges to the lower court's exercise of its discretion in ordering the posting of the bond. First, appellants contend that the court below abused its discretion in failing to consider (a) the financial ability of appellants to

[ 24 Pa. Commw. Page 189]

    obtain a bond, and (b) the merits of the appeal. We are not so persuaded.

Since the purpose of the bond is the financial protection of the landowner from delay damages caused by the appeal, the financial ability of appellants to obtain a bond is not a relevant consideration. We so held in Driscoll, supra, and adopt that conclusion here. We also held in Driscoll that the merits of the appeal are similarly irrelevant. However, we need not reach that conclusion presently since appellants did not attempt to introduce any evidence whatsoever concerning the merits at the bond hearing or to petition the court for a rehearing to consider such evidence. Therefore, that issue is not properly before this Court and need not be decided.

Second, appellants contend that the lower court abused its discretion in setting the bond in an amount not supported by the evidence. We disagree. Through the testimony of the vice-president of appellee corporation, evidence was presented at the bond hearing covering a variety of loss items, including $140,000.00 in anticipated annual net profits from the operation of the new food store. That figure was based upon projected gross revenues of $7,000,000.00 at a current return rate of 2% enjoyed by appellee corporation's other stores. We find that this evidence alone is sufficient to support the amount of the bond.*fn5

Accordingly, the order of April 25, 1975, and the order of May 7, 1975, are hereby affirmed and this matter is remanded to the Court of Common Pleas of Northampton County to afford appellants a reasonable opportunity

[ 24 Pa. Commw. Page 190]

    to post bond in accordance with the order of April 25, 1975.

Disposition

Order affirmed. Case remanded.

Concurring Opinion by Judge Blatt:

While I concur in the result reached by the majority in this case, I reiterate my position, which was previously expressed by Judge Rogers' dissent in Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974), that the merits of a zoning appeal should be considered by the court below in a proceeding to fix the amount of the bond which the court may in its discretion order an aggrieved citizen to post before he may further proceed with the appeal. Because the appellants did not attempt to introduce such evidence here, however, the issue need not be reached. Orleans v. The Melrose Park Improvement Association, 18 Pa. Commonwealth Ct. 185, 335 A.2d 851 (1975).


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