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ANNE G. MILLER ET AL. v. UPPER ALLEN TOWNSHIP ZONING HEARING BOARD ET AL. (12/31/87)

decided: December 31, 1987.

ANNE G. MILLER ET AL., APPELLANTS
v.
UPPER ALLEN TOWNSHIP ZONING HEARING BOARD ET AL., APPELLEES. AUDRIE G. STEWART ET AL. V. UPPER ALLEN TOWNSHIP ZONING HEARING BOARD AND GRANTHAM WOODS. JOHN C. TUTEN ET AL., APPELLANTS



Appeals from the Orders of the Court of Common Pleas of Cumberland County in the case of Anne G. Miller, Norman Berk, Patrick Coble and Monaghan Township v. Grantham Woods, Inc., No. 387 Civil 1986, and in the case of Audrie G. Stewart, John H. Rhodes, Josephine H. Roberts, Harriet H. King v. Upper Allen Township Zoning Hearing Board v. Upper Allen Township and Grantham Woods, Inc. No. 384 Civil 1986.

COUNSEL

G. Thomas Miller, McNees, Wallace & Nurick, for appellants.

Victor R. Delle Donne, Baskin, Flaherty, Elliott & Manino, P.C., for appellees.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Judge Colins dissents.

Author: Craig

[ 112 Pa. Commw. Page 275]

In a zoning case, where a person objecting to development permission does not reside or have a property interest in land within the municipality whose zoning ordinance is involved, does the intervening municipal boundary in itself negate the objector's standing, as a party aggrieved, to appeal a zoning hearing board decision to court or, as an aggrieved person, to intervene in a zoning appeal filed in the court?

Is the answer to this question the same if the would-be objector is another municipality?

The record common to both of these cases poses the stated issues so starkly that this court necessarily must reconsider the legal effect of an intervening municipal boundary line in zoning cases, first expressed as a dictum in Cablevision v. Zoning Hearing Board of the City of Easton, 13 Pa. Commonwealth Ct. 232, 320 A.2d 388 (1974), where the court stated that:

A person who owns property contiguous to land which is the subject of a zoning decision, but outside the territory of the municipality in which the subject property is situated, is not an aggrieved person entitled to perfect an appeal from such a decision.

13 Pa. Commonwealth Ct. at 236, 320 A.2d at 390. Supporting citations consisted of decisions from Colorado,

[ 112 Pa. Commw. Page 276]

Connecticut and New York, and a reference to a text, 3 R. Anderson, American Law of Zoning ยง 21.06 (1968).

In the Miller case, No. 2294 C.D. 1986 in this court, the opinion of Judge Hess of the Court of Common Pleas of Cumberland County, in support of that court's dismissal of the objectors' appeals, succinctly and well states the basic facts and history as follows:

Grantham Woods, Inc., a non-profit organization, has sought a special exception pursuant to provisions of the Upper Allen Township Zoning Ordinance of 1982, so that it might erect a retirement village complex on a 31 acre parcel which is part of a 57 acre tract presently zoned as agricultural. By its decision of January 9, 1986, the Upper Allen Township Zoning Hearing Board granted special exception approval. Anne G. Miller, Norman Berk and Patrick Coble, all residents of Monaghan Township, York County, and Monaghan Township, itself, have filed a notice of appeal with this court from the aforementioned decision of the board.

Appellants Miller, Berk and Coble are residents of neither the township of Upper Allen nor the County of Cumberland. Nonetheless, it is conceded in this case that the individual appellants all reside in close proximity to the tract of land which will be affected by the construction and operation of the retirement village. Further, Monaghan Township is a political subdivision whose boundary touches, in part, the boundary of the subject tract of land. The latter's fire company will share primary responsibility for fire protection at the proposed retirement village and the roadways of this York County township will be affected by traffic into and out of the proposed development.

[ 112 Pa. Commw. Page 277]

This matter turns upon the question of whether the appellants have standing. Section 908 of the Municipalities Planning Code, 53 P.S. 10908, dealing with hearings before the local agency, provides in part:

3. 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 . . . (emphasis supplied).

Similarly, Section 1007 of the same Code states that " persons aggrieved by a use or development permitted on the land of another" (emphasis supplied) may appeal from a zoning hearing board decision. 53 P.S. 11007.

The appellants make a strong case for the fact that both Monaghan Township and the individual appellants are 'persons affected by the application' or 'aggrieved by a development.' They cite the responsibility of Monaghan Township to provide fire protection. They cite also a direct adverse impact upon the roads of Monaghan Township claiming the creation of traffic and police protection problems. Also ...


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