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APPEAL FARMLAND INDUSTRIES (09/14/87)

decided: September 14, 1987.

IN RE: THE APPEAL OF FARMLAND INDUSTRIES, INC. FROM THE DECISION OF THE ZONING HEARING BOARD OF THE CITY OF WILKES-BARRE, LUZERNE COUNTY, PENNSYLVANIA. FARMLAND INDUSTRIES, INC., APPELLANT


Appeals in cases of In Re: The Appeal of Farmland Industries, Inc. from the decision of the Zoning Hearing Board of the City of Wilkes-Barre, Luzerne County, Pennsylvania, Farmland Industries Inc., No. 2868-C of 1985 and In Re: The Appeal of Farmland Industries, Inc. from the decision of the Zoning Hearing Board of the City of Wilkes-Barre, Luzerne County, Pennsylvania, Farmland Industries, Inc., No. 2868-C of 1985.

COUNSEL

David L. Williams, Morgan, Hallgren, Crosswell & Kane, P.C., for appellant.

Mark A. Ciavarella, Jr., Lowery, Ciavarella & Rogers, for appellee, Zoning Hearing Board of the City of Wilkes-Barre.

Sanford S. Marateck, Lark, Makowski, Marateck & Konopka, for appellee, Stop 'N Go Foods of Mid-Penn, Inc.

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

Author: Palladino

[ 109 Pa. Commw. Page 306]

Consolidated for our disposition herein are two appeals to this court filed by Farmland Industries, Inc. (Farmland) arising out of a single zoning case. The first case (1044 C.D. 1986) involves an appeal from an order of the Court of Common Pleas of Luzerne County (trial court) granting a petition to strike Farmland's appeal from an order of the Zoning Hearing Board of the City of Wilkes-Barre (ZHB). For the reasons which follow, we affirm this order of the trial court. The second case (2095 C.D. 1986) is an appeal from an order of the trial court requiring Farmland to post bond as a precondition to proceeding with the appeal in the trial court, pursuant to Section 1008 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11008. For the reasons which follow, we reverse this order of the trial court.

On May 28, 1985, Stop 'N Go of Mid Penn, Inc. (Stop 'N Go) filed an application with the ZHB requesting the following four variances in order to convert the property in question to a retail food convenience store with self-serve gasoline pumps:

1) a waiver of the rear yard setback from the required [twenty feet] down to [thirteen feet] to permit the construction of a retail food store with self service gasoline in a C-2 zone;

2) a waiver of the yard screening and fence required when a commercial use abuts a residential zone;

3) a waiver of the [four foot] strip of yard screening required for the off-street parking area; and

4) a waiver of the required front and side yard setbacks and [of] Sections 470.1 and 241 of the zoning ordinance (projection over the public right-of-way and visual obstruction at a corner

[ 109 Pa. Commw. Page 307]

    lot) to permit the installation of a free standing sign.

ZHB Op. at 1-2. (7/29/85)

The ZHB, on June 19, 1985, conducted a hearing on the requested variances. At that hearing, Farmland, through its counsel, attempted to enter an appearance and participate as an objector. The ZHB refused to permit Farmland to present testimony or to cross-examine Stop 'N Go's witnesses because it concluded that Farmland did not have standing to object.

On July 17, 1985, Farmland filed a Zoning Appeal Notice with the trial court asserting that the ZHB denied its right to due process of law by refusing to allow them to participate as objectors at the variance hearing; erred as a matter of law by denying it standing as an aggrieved person; and committed an abuse of discretion and error of law in granting the variances when Stop 'N Go failed to meet the general and specific standards of the zoning ordinance.

In response thereto, the ZHB filed an answer and a petition and rule to show cause why the appeal should not be stricken. The petition asserts that the trial court should strike the appeal because Farmland is neither a party nor a person aggrieved by the decision of the ZHB and, thus, lacks standing to appeal. Farmland filed an answer and new matter to this petition questioning the standing of the ZHB to be a party on appeal.

On October 3, 1985, the trial court heard oral argument on the petition to strike. The trial court ordered a remand to the ZHB to allow Farmland to develop a record in regard to the standing issue. The ZHB held the remand hearing on October 16, 1985 and then returned the case to the trial court. Thereafter, by order dated March 26, 1986, the trial court struck the appeal of Farmland, concluding that Farmland was not aggrieved by the grant of the variances to Stop 'N Go and did not have standing to appeal.

[ 109 Pa. Commw. Page 308]

In the interim, on July 31, 1985, Stop 'N Go filed a petition and rule to show cause why Farmland should not be required to post bond, pursuant to Section 1008(4) of the MPC, 53 P.S. § 11008(4), in order to be allowed to proceed with its appeal in the trial court. The rule to show cause was issued on Farmland on August 14, 1985. Farmland filed an answer thereto, denying the allegations of Stop 'N Go and objecting to the standing of Stop 'N Go to seek the posting of a bond on the basis that Stop 'N Go was not a party to this appeal and had not petitioned to intervene pursuant to Section 1009 of the MPC, 53 P.S. § 11009.

The trial court held a hearing in this matter on September 4, 1985. Stop 'N Go filed a petition to intervene on September 10, 1985, which the trial court granted on September 26, 1985. In its petition to intervene, Stop 'N Go adopted all of the pleadings of the ZHB.

Thereafter, the trial court failed to rule on the matter of the bond. As stated herein, the trial court struck Farmland's appeal on March 26, 1986 and Farmland perfected an appeal to this court on April 11, 1986. Citing administrative error, the trial court, on June 26, 1986, held another hearing as to whether bond should be required and, by order dated July 3, 1986, ordered Farmland to post a Two Hundred Thousand Dollar ($200,000) bond within ten (10) days. Farmland did not post bond and appeals this order to our court. We consolidated the two appeals for argument and disposition sua sponte.

On appeal to this court, Farmland asserts that the ZHB has no standing to bring a motion to strike. Therefore, it asserts that it was error for the trial court to grant the motion to strike. Further, Farmland contends that Stop 'N Go cannot advance the issue of Farmland's lack of standing because it ...


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