Know Your Rights In Land Use And Zoning Matters

September 7, 2018

Land use and zoning matters can often become quite contentious because of how protective people are about what goes on their neighborhoods or with their own property. A prime example of this is a recent case from the Commonwealth Court of Pennsylvania. The Commonwealth Court is a Pennsylvania court that hears appeals involving governmental entities. The case of Friends of Lackawanna v. Dunmore Borough Zoning Hearing Board, 186 A.3d 525 (2018) involved a proposed upward expansion of a landfill operation that stretched across several jurisdictions. Landfills are much like prisons in that while everyone recognizes that they are a necessity, nobody wants one built in or around their property. The case originated with an appeal of the Dunmore Borough Zoning Officer's determination that the proposed expansion of the landfill, which would add 165 feet of height and 46 years of life to the landfill, complied with the Borough Zoning Ordinance. Several neighboring property owners and a non-profit organization appealed this determination and the Zoning Hearing Board, and subsequently the Common Pleas Court, determined that the persons objected lacked standing to appeal the determination. Anyone who engages in litigation must have standing or a legal right to challenge the question at issue.

In order to have standing to challenge a zoning determination a person or entity who is not the landowner of the subject property must "show aggrievement by establishing a substantial, direct and immediate interest in the outcome of the litigation." "A substantial interest is one in which there is some discernable adverse effect to some interest other than an abstract interest that all citizens have." That is essentially lawyer speak for you have to be able to present evidence that you are directly affected by the activity. The Commonwealth Court reversed the lower court's finding of a lack of standing and found that the objecting parties "all live in close proximity to the landfill and suffer distinct impacts from landfill operations. They testified they can smell odors of rotting garbage from their properties." One party "complained of bird droppings and dust." The Court stated that "[a]ll three also reported seeing trash trucks regularly driving through their neighborhood on the way to the landfill…[t]he combined harms adversely affect the use and enjoyment of their properties… [and t]he proposed expansion would extend these adverse effects for decades." It was found by the Court that the objecting parties did have standing and the non-profit had derivative standing based on the members' interests. The case was therefore sent back to the lower courts for review in light of the determination on standing.

It is noteworthy that this decision does not mean that the objecting landowners will be successful in challenging the proposed use. It simply means that they have the right to raise their claims and have them heard on their merits. However, this decision highlights that not only is standing a critical issue in zoning matters, it is important to be prepared to raise the issue and offer evidence in support of it or against it if you are arguing a lack of standing. A failure to challenge standing or offer evidence in support at the local hearings will be deemed to be a waiver of the argument. Therefore, even though zoning and township hearings are often informal and can feel like they are not truly litigation, the issues presented there, or not presented, can have dire consequences. It is always best to consult with an attorney in these types of matters as soon as you receive notice of them because if you wait until after, you may have given up critical rights without even knowing it.