January 12, 2009
EDWIN R. THOMPSON
ZONING HEARING BOARD OF HORSHAM TOWNSHIP LABREPCO VENTURES, L.P., APPELLANT
The opinion of the court was delivered by: Judge Friedman
Argued: November 13, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1 (P) HONORABLE ROBERT SIMPSON, Judge
Labrepco Ventures, L.P., (Landowner) appeals from the June 2, 2008, order of the Court of Common Pleas of Montgomery County (trial court), which denied Landowner's motion to quash the land use appeal filed by Edwin R. Thompson (Thompson).*fn2 We affirm, and we remand the matter for consideration of the merits of Thompson's appeal.
Landowner owns property at 223 Keith Valley Road (Property), which is located in the I-2 Industrial District and the Airport Crash & Noise Overlay District/Accident Potential Zone 1 (ACNOD) of Horsham Township (Township). Although offices and warehouses are permitted uses in the I-2 District, they are prohibited in the ACNOD. In 2008, Landowner filed an application with the Zoning Hearing Board of Horsham Township (ZHB) requesting: (1) a use variance to allow the construction of two, two-story office buildings in the ACNOD; and (2) a dimensional variance from section 230.153.E of the Horsham Township Zoning Ordinance of 1995 (Ordinance) to allow a forty-three-foot buffer along the residentially-zoned land adjacent to the Property, instead of the required fifty-foot buffer.
On January 8, 2008, the ZHB held a hearing on Landowner's variance requests, at which the ZHB granted Thompson party status without any objection by Landowner. Landowner presented expert testimony to support its variance requests. Thompson did not object to this expert testimony, and he did not present any evidence to refute the expert's opinion or to demonstrate any deleterious effects that the proposed office buildings would have on the surrounding area. Instead, Thompson's objection to the variance simply was that office buildings are not a permitted use in the ACNOD and the ZHB should enforce the Ordinance as it is written. Crediting Landowner's expert's testimony, the ZHB concluded that Landowner had satisfied its burden of establishing its entitlement to the two variances and granted them to Landowner.
Thompson appealed to the trial court, and Landowner filed a motion to quash the appeal, arguing that Thompson lacked standing to appeal the ZHB's decision because he was not aggrieved. At a hearing on the standing issue, Thompson presented no evidence to indicate that he had a direct, immediate, substantial or pecuniary interest in the subject matter of the litigation.*fn3 Nevertheless, the trial court denied Landowner's motion to quash, reasoning that Landowner waived any challenge to Thompson's standing by failing to object to Thompson's grant of party status before the ZHB. To support its decision, the trial court relied on Baker v. Zoning Hearing Board, 367 A.2d 819 (Pa. Cmwlth. 1976) (holding that an objector necessarily is aggrieved by a zoning hearing board's decision where the objector is granted party status before the board without objection and the board grants the requested relief), and Active Amusement Company v. Zoning Board of Adjustment, 479 A.2d 697 (Pa. Cmwlth. 1984) (same).
Pursuant to a request by Landowner, the trial court amended its order and certified that there exists a substantial ground for a difference of opinion on a controlling question of law as to whether Thompson had standing to appeal the 2008 Decision. Based on the amended order, this court granted Landowner's petition for permission to appeal pursuant to section 702(b) of the Judicial Code, 42 Pa. C.S. §702(b).*fn4
On appeal,*fn5 Landowner argues that the trial court erred in denying its motion to quash based on its determination that Landowner waived any challenge to Thompson's standing by not objecting before the ZHB. We disagree.
Like the trial court, we conclude that the situation here is analogous to that in Baker. In Baker, as here, a resident of the township appeared before the zoning hearing board in opposition to a landowner's application, and the landowner did not object to the resident appearing or becoming a party to the proceedings. As in the present case, the zoning hearing board granted the requested relief, and when the resident appealed to the trial court, the landowner asserted that the resident was not a party aggrieved and, therefore, lacked standing to appeal the zoning hearing board's decision. The trial court agreed and dismissed her appeal. In reversing, our court reasoned that because the resident appeared and participated as a party before the zoning hearing board without objection by the landowner, she necessarily was aggrieved by the adverse decision and had standing to appeal that decision.*fn6 Baker.
Applying Baker, we conclude that because Thompson appeared and participated as a party before the ZHB without objection by Landowner, he necessarily is aggrieved by the ZHB's adverse decision and has standing to appeal that decision to the trial court.*fn7
Accordingly, we affirm the trial court's denial of Landowner's motion to quash, and we remand the matter to the trial court to proceed with the merits of Thompson's appeal.
AND NOW, this 12th day of January, 2009, the order of the Court of Common Pleas of Montgomery County (trial court), dated June 2, 2008, is hereby affirmed. We remand the matter to the trial court for it to consider the merits of Edwin R. Thompson's appeal from the decision of the Zoning Hearing Board of Horsham Township granting variances to Labrepco Ventures, L.P.
ROCHELLE S. FRIEDMAN, Judge