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PPM Atlantic Renewable v. Fayette County Zoning Hearing Bd.

Supreme Court of Pennsylvania

December 16, 2013

PPM ATLANTIC RENEWABLE
v.
FAYETTE COUNTY ZONING HEARING BOARD, Neil Brown and Thomas J. Bozek. Appeal of Thomas J. Bozek.

Argued Oct. 17, 2012.

Appeal from the Order of the Commonwealth Court entered May 3, 2011 at No. 1431 C.D. 2010 quashing the Appeal from the Order of the Court of Common Pleas of Fayette County entered June 18, 2010 at No. 2009 of 2009 G.D. Appeal allowed April 4, 2012 at 360 WAL 2011. Trial Court Judge: Steve P. Leskinen, Judge. Intermediate Court Judges: Dan Pellegrini, Robert E. Simpson, JJ., Rochelle S. Friedman, Senior Judge.

Gary Nixon Altman, Esq., Uniontown, for Thomas J. Bozek.

Daniel W. Rullo, Esq., Barbera, Clapper, Beener, Rullo & Melvin, L.L.P., Somerset, Denise Renee Yarnoff, Esq., Riley, Riper, Hollin & Colagreco, P.C., Exton, for PPM Atlantic Renewable.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

SAYLOR, Justice.[1]

This matter involves whether an objector in a land-use dispute must comply with

Page 897

a county court order to post bond as a condition of appealing to the Commonwealth Court, where the developer was the appellant in the county court.

PPM Atlantic Renewable (" PPM" ) unsuccessfully requested that the Fayette County Zoning Board grant it numerous special exceptions and variances for it to build 24 windmill turbines on leased land. Appellant Thomas J. Bozek (" Bozek" ) is an adjacent landowner who had spoken against the application before the Board. Bozek was given permission to intervene in PPM's appeal to the Fayette County Court of Common Pleas (the " trial court" ).

The trial court ruled that the Board had erred and remanded with instructions. On remand, the Board granted several variances, denied others, denied special exception requests for eight windmills, and granted special exception requests for the remaining windmills, albeit subject to conditions. On PPM's second appeal, the trial court agreed with PPM's arguments and modified the zoning decision in a manner favorable to PPM via final order dated June 18, 2010.

Aware that Bozek was about to appeal to the Commonwealth Court, PPM made a motion in the trial court for an appeal bond. On July 16, 2010, Bozek filed his notice of appeal. On August 2, 2010, the trial court granted the motion and ordered Bozek to post a $250,000 bond as a condition of continuing with his appeal to the Commonwealth Court.

Thereafter, PPM moved in the Commonwealth Court to quash the merits appeal because Bozek failed to appeal the bond order or post bond. PPM argued that the trial court properly determined that Bozek's appeal falls within the parameters of Section 1003-A(d) of the Municipalities Planning Code (" MPC" ), see 53 P.S. ยง 11003-A(d), because the appeal sought to prevent or limit the use or development of the land of another and was frivolous.[2]

The motion was assigned to a single judge who granted it and quashed the appeal. Reconsideration was granted and the motion was assigned to a three-judge panel. While the motion to quash was ...


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