The Commonwealth Court was recently asked to weigh in on what exactly constitutes sufficient “participation” in a zoning hearing to grant a party standing to appeal.  In overturning the lower court’s decision, the Commonwealth Court effectively said “not much.”

Pegasus Tower Co. (Pegasus) applied to the Easton ZHB for permission to replace an existing monopole, a non-conforming use of the site, with a taller monopole, also a non-conforming use of the site. The ZHB conducted a hearing on the application at which Walters, an adjoining property owner, appeared.  Walters was sworn in to testify and was referred to as a “party” by the ZHB without objection by Pegasus. Walters testified that the new monopole would be visible from his property and that contrary testimony by Pegasus had been inaccurate. To support this contention he submitted a photograph of the existing tower, taken from his yard, into evidence. Walters and Pegasus then submitted a joint stipulation stating that if the ZHB granted the application Pegasus agreed to provide additional screening near Walters’ property.

The ZHB granted Pegasus’ application, and accepted and incorporated the stipulation. Walters appealed and Pegasus sought to dismiss the appeal for lack of standing based on his alleged failure to sufficiently object and/or participate in the ZHB proceedings. The Court of Common Pleas of Northampton County denied Walters’ appeal, concluding he lacked standing because he did not object to the application before the ZHB. The court reasoned that Walters had not opposed the application at all by cross-examining witnesses, offering arguments against the application, or objecting to any testimony or evidence presented. In fact, the court concluded, the transcript gave it the impression that Walters had supported the application so long as the stipulation was included. Walters appealed.

On appeal, the Commonwealth Court reversed, finding Walters’ participation had been sufficient to confer standing. He had appeared, testified, and submitted a photograph into evidence to dispute testimony by Pegasus. The court held that Walters was not required to formally request the application be denied, and that his introduction of rebuttal evidence, testimony, and argument was sufficient to apprise the ZHB of his opposition. The proposed stipulation had merely been an alternative, precautionary measure in the event that the ZHB approved Pegasus’ application.

Click here to read:  Walters v. ZHB of the City of Easton, 1310 CD 2014 (Pa. Cmmw. Ct. Oct. 8, 2015).