Wright v. Town of McCandless Zoning Hearing Board

267 A.3d 610

Ellen WRIGHT, Appellant

v.TOWN OF MCCANDLESS ZONING HEARING BOARD, K-Man Properties, LLC and Town of McCandless

No. 190 C.D. 2021

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 18, 2021

Decided December 10, 2021

William J. Cluck, Harrisburg, for Appellant.

Alan T. Shuckrow, Pittsburgh, for Appellee Town of McCandless Zoning Hearing Board.

Donald P. Graham, Cranberry Township, for Appellee K-Man Properties, LLC.

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY PRESIDENT JUDGE BROBSON

Appellant Ellen Wright (Wright) appeals from an order of the Court of Common Pleas of Allegheny County (trial court). The trial court granted intervenor K-Man Properties, LLC's (K-Man) motion to quash appeal, concluding that Wright lacked standing to appeal the Town of McCandless (McCandless) Zoning Hearing Board's (ZHB) approval of two dimensional variances. For the following reasons, we now vacate the trial court's order and remand the matter to the trial court for further action.

I. BACKGROUND

The following facts appear to be undisputed. K-Man is under a contract to buy an undeveloped parcel of land in McCandless (Property) and seeks to build a three-story-high, twenty-dwelling unit apartment complex, which will serve a mixture of semi-independent adults and traditional tenants. In February 2020, K-Man filed an application for a variance seeking to reduce the number of parking spaces needed at the proposed apartment complex.

On March 6, 2020, Pennsylvania Governor Tom Wolf proclaimed a COVID-19 disaster emergency that affected routine state and local government activities throughout the Commonwealth.¹ In April 2020, the General Assembly passed and Governor Wolf signed into law Act 15 of 2020, Act of April 20, 2020, P.L. 82, which, in relevant part, authorized local governing bodies to "conduct hearings, meetings, proceedings or other business through the use of an authorized telecommunications device until the expiration or termination of the COVID-19 disaster emergency."²

35 Pa. C.S. § 5741(a). Thereafter, the ZHB decided to use a web conferencing platform to conduct a virtual hearing concerning K-Man's application for a variance on May 27, 2020.

Wright claims she did not have the web conferencing platform to participate in the virtual hearing. Instead, Wright telephoned McCandless's Planning and Development Administrator, R.J. Susko, on the day of the virtual hearing and dictated a statement to be read at the virtual hearing. (Reproduced Record (R.R.) at 222a.) Wright's statement provided:

I am opposed to granting this variance because I do not believe that there should be exceptions made for any development of this property. Specific issues related to the variance are the application does not specify the number of units. There were no materials available prior to the meeting that showed the number of units and 50 percent of how many parking spaces.

Yes, true, special needs don't drive cars, but will special needs require home health care services? And won't home health have to drive to the site and require parking spots? I request that the variance not be approved.

(Id . at 222a-23a.) Ms. Susko read Wright's statement during the virtual hearing and submitted it as a public comment into the record. (Id .) After submission of the statement, ZHB Chairman Greg Quatchak and the ZHB's attorney, Alan T. Shuckrow, engaged in the following discussion:

MR. QUATCHAK: Okay, thank you.

MR. SHUCKROW: RJ, it's Alan. Can you tell me if protocol, if you know, the woman whose comment you just read, Old Kummer Road, is that within a quarter mile, half mile, mile?

MS. SUSKO: I'm going to have to pull up a map.

MR. QUATCHAK: I can tell you, Alan, you would go out Blazier Drive to Ingomar, make a left and it would be -- depending where that address is on Old Kummer, it could be one and a half, two miles away.

MR. SHUCKROW: That's about what I thought.

MR. QUATCHAK: Does the applicant have any further information to present?

[K-MAN'S COUNSEL]: No, we do not. Thank you very much.

(Id. at 223a.)

The ZHB did not immediately reach a decision and continued the hearing on K-Man's application until June 24, 2020, in part so that K-Man could file a second application for a variance related to the size of the parking spots at the proposed apartment complex. As part of the ZHB's discussion regarding tabling the matter, Mr. Shuckrow commented: "I don't think we are going to get anybody coming forward other than maybe the lady who already did," presumably making reference to Wright. (Id. at 227a.) After the June 24, 2020 hearing, the ZHB granted K-Man's applications for variances. As to Wright, the ZHB included finding of fact number 12, which merely identifies Wright, provides her address, and notes that she submitted written public comment in opposition to the applications. (Id. at 170a.)

Wright appealed the ZHB's decision to the trial court contending that: (1) the ZHB's public notice for the May and June 2020 hearings was inadequate; (2) the public could not review the drawings and diagrams of the proposed apartment complex in person or online in violation of Section 916.2 of the Pennsylvania Municipalities Planning Code (MPC);³ and (3) based on her public comment, she was a party in the proceedings who should have been personally notified about the June 24, 2020 hearing. K-Man intervened and filed a motion to quash Wright's appeal for lack of standing.

The trial court held a hearing on K-Man's motion to quash in January 2021. K-Man framed the issue before the trial court as whether Wright "meet[s] the definition of an aggrieved party and therefore [is] entitled to party status and the right to file the appeal" with the trial court. (R.R. at 71a.) Wright, in response to the trial court's question about the harm she suffered resulting from the ZHB's granting of K-Man's two variances, testified:

It harms me that the standards are not being met. There's only one C5 district ... in [McCandless]. The density units for th[e] [P]roperty were changed from net acre to gross acre in the time that ... K-Man ... first became interested in th[e] [P]roperty.

So that instead of building something that's eight units, now we're talking about something that's 28 units. So[,] it harms me when the standards are changed to accommodate a particular building.

(R.R. at 80a-81a.) The trial court found that Wright did not show "evidence of a particularized harm" and that Wright lives more than one half of a linear mile (or one and one-half miles by cartway) from the Property and is "too far removed ... to be immediately affected by her concerns." (Trial Court Opinion dated March 11, 2021, at 1-2.) For those reasons, the trial court concluded that Wright lacked standing to appeal the ZHB's decision. This appeal followed.

II. ISSUES

On appeal,⁴ Wright argues that she has standing to appeal because she was a party to the proceedings before the ZHB and that any challenge to her standing to appeal the trial court's order was waived by K-Man's failure to object to her party status during the proceedings before the ZHB.⁵

III. DISCUSSION

As to standing, Wright contends that, because she was unable to appear in person at the ZHB hearing, her submission of what she characterizes as written objections that were read into the record and included in the ZHB's findings of fact confers upon her party status under Section 908(3) of the MPC, 53 P.S. § 10908(3),⁶ as well as standing to appeal. In support thereof, she directs our attention to this Court's decisions in Gateside-Queensgate Company v. Delaware Petroleum Company , 134 Pa.Cmwlth. 603, 580 A.2d 443 (1990), and Naimoli v. Zoning Hearing Board of Township of Chester , 56 Pa.Cmwlth. 337, 425 A.2d 36 (1981), for the proposition that she was a party to the proceeding before the ZHB. She also directs our attention to Baker v. Zoning Hearing Board of West Goshen Township, Chester County , 27 Pa.Cmwlth. 602, 367 A.2d 819 (1976), and its progeny, wherein we interpreted Section 908(3) of the MPC as providing that, when a person appears before a zoning hearing board as a party without objection, that person has party status before a zoning hearing board and standing to appeal, because, as a party, the person necessarily has aggrieved status as a result of the adverse zoning decision.

K-Man, in response, points to decisions of our Court that recognize that "[a] person who wishes to contest a zoning approval can initiate an appeal or challenge if [s]he is a ‘person aggrieved’ " but, according to K-Man, apply a different standard for determining if a person is "aggrieved" than the Baker line of cases. Walters v. Zoning Hearing Bd. of Easton , 125 A.3d 479, 482 (Pa. Cmwlth. 2015) (quoting In re Broad Mountain Dev. Co., LLC , 17 A.3d 434, 440 (Pa. Cmwlth.), appeal denied , 611 Pa. 647, 24 A.3d 864 (2011) ), appeal denied , 635 Pa. 778, 138 A.3d 7 (2016). K-Man contends that there is more to a standing analysis for purposes of zoning appeals than whether a person was a party in the proceeding below, pointing to our decision in Walters wherein we explained that "[t]o be a ‘party aggrieved’ so as to have standing to appeal a zoning board decision, a person must (1) have actively participated as a party in the proceedings before the zoning board; and (2) be directly and adversely affected by the zoning board's decision." Walters , 125 A.3d at 482 (quoting Lower Allen Citizens Action Grp., Inc. v. Lower Allen Twp. Zoning Hearing Bd. , 93 Pa.Cmwlth. 96, 500 A.2d 1253, 1257 (1985) ). In other words, according to K-Man, a person seeking to become a party in a zoning matter must meet two requirements: (1) procedural standing, which concerns whether the person asserted her right to participate in the proceeding sufficiently early in the litigation, and (2) substantive standing, which requires that the person have a sufficient interest in the outcome of the litigation to be allowed to...