Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Blair A. Gilbert v. Montgomery Township Zoning Hearing Board, No. 79-15053.
Emory W. Buck, with him William R. Cooper, and Stewart J. Greenleaf, Cooper & Greenleaf, for appellant.
Marc D. Jonas, Hamburg, Rubin, Mullin & Maxwell, for appellee.
President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached before the expiration of the term of office of Judge Wilkinson, Jr.
[ 58 Pa. Commw. Page 297]
This is an appeal by Montgomery Township from the order of the Court of Common Pleas of Montgomery County which reversed the Montgomery Township Zoning Hearing Board's denial of applicant Blair Gilbert's request for a special exception.
Applicant sought a special exception permitting storage of tires in two truck trailers on his commercially zoned lot. After a hearing, in which the township did not participate, the board denied the special exception and applicant appealed to the common pleas court; the township did not appear or intervene in that appeal. Without taking evidence, the common pleas court reversed the board's decision on December 19, 1979.
[ 58 Pa. Commw. Page 298]
On January 10, 1980, Attorney Cooper filed a notice of appeal to this court as attorney for the board; on January 17, Mr. Cooper filed a second notice of appeal, this time as attorney for the township. Applicant has moved to quash this appeal on the ground that the township has no standing because it was not a party to the common pleas court proceedings. That the zoning hearing board has no standing to appeal is beyond question.*fn1
Thus the first issue is: Does a municipality have standing to invoke this court's review of the common pleas court's reversal of its zoning hearing board, when it did not participate in the proceedings before its zoning hearing board or intervene in the aggrieved applicant's appeal to the common pleas court?
The cases the township cites as supporting an affirmative answer are distinguishable on their facts or inapplicable because they were not decided under the Pennsylvania Municipalities Planning Code (MPC).*fn2
In Norate v. Zoning Board of Adjustment, 417 Pa. 397, 207 A.2d 890 (1965), the challenge was to the municipality's standing as an appellee and not as appellant. The Supreme Court there cited Schechter v. Zoning Board of Adjustment, 395 Pa. 310, 149 A.2d 28 (1959), holding that the appellant municipality should not have been denied intervention in the lower court, and Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958), where the court treated the municipality as substituted for the board as appellant. In Edwards, however, the municipality was represented in the common pleas court, albeit by the same attorney who represented the board, and that attorney, although instructed to appeal by township officials,
[ 58 Pa. Commw. Page 299]
purported to obtain review in the name of the board. Those circumstances do not exist here; the township took no part in the board or common pleas court proceedings.*fn3
Springfield Township Zoning Case, 399 Pa. 53, 159 A.2d 684 (1960), is inapposite because there the objector-appellee did not challenge the municipality's standing in any way; further, the township had been a party in the lower court. The court's reference to Edwards, supra, served only to emphasize that the board had no standing as an appellant and that, in circumstances like those in Edwards, the municipality ...