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ACORN DEVELOPMENT CORPORATION v. ZONING HEARING BOARD UPPER MERION TOWNSHIP. UPPER MERION CONCERNED CITIZENS COMMITTEE (04/02/87)

decided: April 2, 1987.

ACORN DEVELOPMENT CORPORATION
v.
ZONING HEARING BOARD OF UPPER MERION TOWNSHIP. UPPER MERION CONCERNED CITIZENS COMMITTEE, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Acorn Development Corporation v. Zoning Hearing Board of Upper Merion Township, No. 85-14409.

COUNSEL

Gregory Dean, with him, Fred B. Fromhold, Haws & Burke, for appellant.

Parker H. Wilson, Wilson, Drayer, Morrow & Furber, for appellee.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Colins dissents.

Author: Kalish

[ 105 Pa. Commw. Page 139]

Upper Merion Concerned Citizens Committee, Inc. (Committee) appeals from an order of the Court of Common Pleas of Montgomery County which denied its petition to intervene.*fn1 We affirm.

[ 105 Pa. Commw. Page 140]

The Committee is a community organization whose members are residents of Upper Merion Township (Township), and whose purpose is to preserve and enhance the quality of life in the Township. On September 5, 1985, the Zoning Hearing Board of Upper Merion Township (Board) rejected a challenge by Acorn Development Corporation (Acorn) to the Upper Merion Township Zoning Ordinance with respect to the Valley Forge Golf Course. Acorn sought to rezone the property from AG Agriculture to A-R Administrative and Research, in order to develop the property into office and hotel space. The Committee was represented by counsel and participated in the Board hearings on Acorn's challenge.

On September 16, 1985, Acorn filed an appeal from the Board's decision in the trial court. The Township successfully intervened in the appeal. The Committee filed a petition to intervene. The trial court denied the Committee's petition, determining that the Committee's interests would be represented and protected by the parties to the action, namely the Township and the Board. The Committee argues that it has a legally enforceable interest in the determination of Acorn's appeal, pursuant to section 908(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(3), and Pa. R.C.P. No. 2327(4).

Questions of intervention are within the discretion of the trial court. Our scope of review is to determine whether the trial court abused its discretion or committed an error of law in denying the Committee's petition to intervene. Wilson v. State Farm Mutual Automobile Insurance Co., 512 Pa. 486, 517 A.2d 944 (1986).

[ 105 Pa. Commw. Page 141]

Section 908(3) of the MPC, 53 P.S. § 10908(3), does not create a legally enforceable interest in the outcome of an appeal from a zoning hearing board decision. This section simply sets forth one of the requirements for hearings before a zoning hearing board. Section 908(3) of the MPC provides that "[t]he 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." Neither a municipality nor a neighboring landowner is granted automatic party status in an appeal from a zoning hearing board decision, despite the fact that both participated as parties before the zoning hearing board. In order to participate at the common pleas court level, they must intervene pursuant to section 1009 of the MPC, 53 P.S. § 11009. Gilchrist v. Zoning Hearing Board of Old Forge Borough, 83 Pa. Commonwealth Ct. 27, 475 A.2d 1366 (1984).

Section 1009 of the MPC, 53 P.S. § 11009, provides that the municipality and any owner or tenant of property directly involved in the action may intervene as of course, but further provides that all other intervention is governed by the Pennsylvania Rules of Civil Procedure. Rule 2327(4), Pa. R.C.P. No. 2327(4), states that a person who is not a party to the action shall be permitted to intervene if "the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action." This right to intervene is not absolute. In Wilson, our Supreme Court stated that "even assuming the truth of this allegation [of a legally enforceable interest], a mere prima facie basis for ...


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