Standing; Aggrieved Party; Zoning Appeal

South Bethlehem Associates, L.P. v. Zoning Hearing Board of Bethlehem Township, 2021 WL 303046 (Pa. Cmwlth. 2021) (unreported), allocatur granted March 22, 2022, appeal docket 41 MAP 2022

The Northampton County Court of Common Pleas (trial court) affirmed the decision of the Zoning Hearing Board of Bethlehem Township (ZHB) granting two variances under the Bethlehem Township Zoning Code to allow Central PA Equities 30, LLC (Applicant) to construct a hotel at 2401 Emrick Boulevard in Bethlehem Township. South Bethlehem Associates, L.P. (Objector), a competing hotel owner, appealed the SHB’s decision to the trial court and the trial court’s affirmance of that decision to the Commonwealth Court.

The Commonwealth Court summarized the relevant facts as follows:

Applicant propose[d] to build a 107-room, 4-story hotel on a 3.482-acre property located in the “Light Industrial/Office Campus (Phased) Zoning District” (LIP zoning district) where a hotel use is permitted as of right. The northern and eastern sides of the property border Cook Drive and Emrick Boulevard, therefore requiring 50-foot setbacks from the street right-of-ways. However, the western side borders the residential Madison Farms complex, which includes a 39-unit apartment structure with 14 vehicular garages. Consequently, the proximity of multiple residential units within 175 feet from the proposed hotel triggered a 150-foot setback requirement and the mandate for construction of an earth berm within the setback.

By way of relief, Applicant sought two variances under the Zoning Code. The first was a dimensional variance from Section 275.91(M)(4), requiring a 150-foot setback from the lot lines of any dwelling, residential or agricultural district boundary, or municipal park. Applicant proposed a 74-foot setback, a variance of 76 feet. The second was a complete waive from Section 275.91(M)(5), mandating construction of an earth berm within the setback area. Applicant sought a waiver from the mandate because PPL Electric Utilities’ limitations preclude the construction of a berm.

At the hearing before the ZHB, Applicant presented the testimony of numerous witnesses and nine exhibits. Objector submitted no testimony or evidence. The ZHB voted unanimously to grant the variances. Without taking additional evidence, the trial court determined that Objector had standing to appeal but affirmed the decision to grant the variances.

Slip op at 2 (footnotes and internal citations omitted).

Without reaching the merits, the Commonwealth Court affirmed the trial court, holding that Objector did not have standing as an aggrieved party to challenge the requested variances, noting that Objector’s participation before the ZHB was limited to its attorney’s cross-examination of Applicant’s witnesses and legal argument in opposition to the variances and that the ZHB simply accepted Objector’s counsel’s representation that his client owned the Courtyard Marriott located approximately two blocks away from the subject property and within the same industrial park.

In concluding that Objector lacked standing to challenge the variances, Commonwealth Court reasoned that a zoning appeal cannot be used as a method to deter free competition and that the “asserted negative impact must originate from the variances sought and not simply from the competition expected from an incoming business.” Slip op. at 5 (citing In re: Farmland Indus., Inc. Appeal, 531 A.2d 79, 84 (Pa. Cmwlth. 1987)). Commonwealth Court concluded that, absent such an aggrievement, it will not entertain a competitor’s use of the zoning process to impede the location of a competitor in its trading area. Accordingly, Commonwealth Court concluded that Objector neither articulated nor substantiated a particular harm that it would suffer from the reduced setbacks or waiver from the berm. Commonwealth Court further concluded that Objector’s property “did not border the proposed site and Objector did not even establish that it would be able to view either the reduced setback or the absence of an earth berm from its property.” Slip op. at 5. Accordingly,  Commonwealth Court affirmed the trial court’s decision without reaching the merits of Objector’s appeal, based on its conclusion that   Objector never had standing to challenge the requested variances.

The Supreme Court granted allocatur to consider the following issues:

(1) Whether the Commonwealth Court of Pennsylvania erroneously applied an aggrieved party standard that was repealed by the legislature and replaced by a provision granting [Petitioner] the right to appeal since it was deemed a party and opposed the proposed zoning relief during the underlying [zoning hearing board] hearing.

(2) Whether the Commonwealth Court of Pennsylvania erroneously entered an order dismissing the appeal due to lack of standing pursuant to [Pennsylvania Rule of Appellate Procedure] 1114(b)(7)] [1] where [Petitioner] who was located only two (2) blocks from the subject property had a right to an appeal even if an aggrieved party standard is applied.

[1] Under Pennsylvania Rule of Appellate Procedure 1114(b)(7), a “petition for allowance of appeal may be granted” where “the intermediate appellate court has erroneously entered an order quashing or dismissing an appeal.”


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