Summit Tp. Taxpayers Ass'n v. Summit Tp. Bd. of Sup'rs
| Decision Date | 25 February 1980 |
| Citation | 49 Pa.Cmwlth. 459,411 A.2d 1263 |
| Parties | SUMMIT TOWNSHIP TAXPAYERS ASSOCIATION, Edward Leslie and Lillian R. Wasiela, Appellants, v. SUMMIT TOWNSHIP BOARD OF SUPERVISORS, Appellee, Erie Disposal Company, Intervening Appellee. |
| Court | Pennsylvania Commonwealth Court |
Argued Dec. 5, 1979.
Lund, Fischer, Kennedy & Schleicher, Evan E Adair, Erie, for appellants.
Richard W. Perhacs, Elderkin, Martin, Kelly, Messina & Zambodi, Erie for intervening appellee.
Before WILKINSON, BLATT and CRAIG, JJ.
The Summit Township Taxpayers Association, Edward Leslie and Lillian Wasiela (objectors) appeal from an order of the Court of Common Pleas of Erie County (No. 5471-A-1977) denying the appeal which objectors characterize as taken from the action of the Summit Township (township) Board of Supervisors (board), "in stipulating" with respect to the settlement of another zoning appeal (No. 2200-A-1976, Court of Common Pleas of Erie County) which had earlier been taken by Erie Disposal Company (Erie).
In January, 1976, Erie, owner and operator of the Lakeview Landfill located in the township, seeking to expand that landfill onto adjoining property, had filed a substantive challenge to the validity of the township's zoning ordinance by a curative amendment proceeding, in accordance with Sections 1004(1)(b) and 609.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004(1)(b), § 10609.1. Erie had challenged the validity of the ordinance on the ground that it made no provision for the operation of a sanitary landfill within the township. At the time of the challenge, the existing landfill was a legal nonconforming use in an R-2 Residential District.
After notice and hearing, the township's board rejected Erie's proposed curative amendment. Erie appealed from the board's action to the court of common pleas at No. 2200-A-1976, supra. Erie and the township entered into negotiations to resolve the terms and conditions under which the board might allow expansion of landfill, which had reached its regulated capacity. The negotiations culminated on December 1, 1977, when, after publication and notice, the board held a public meeting and authorized counsel to execute a stipulation settling Erie's zoning appeal. Accordingly, on joint motion of the township and Erie, Judge Lindley R. McClelland of the Court of Common Pleas entered an order of court, at No. 2200-A-1976, sustaining Erie's appeal, ordering the township to issue Erie the necessary zoning permit and ordering Erie to pay royalties to the township and comply with the other negotiated conditions for the operation of the sanitary landfill.
In this case (No. 5471-A-1977), objectors appeal from the township board's authorization of the stipulation in Erie's appeal, characterizing the board action as being, in effect, a zoning ordinance amendment, i. e., an acceptance of the curative amendment. Alternatively, objectors describe the board action as a grant of a variance. The lower court in effect treated objectors' present appeal as one taken, not just from the "stipulating" itself, but from the disposition of Erie's appeal brought about by that stipulation.
The lower court held that objectors' failure to intervene in Erie's appeal precludes their present attempt to appeal from that final and binding order of court. We agree. The association failed to avail itself of the process of intervention provided by Section 1009 of the MPC, 53 P.S. § 11009, which allows those who are not owners or tenants of involved property to intervene by petition in accordance with the terms of Pa.R.C.P. Nos. 2326-2330. Pa.R.C.P. No. 2327 permits intervention at "(a)ny time during the pendency of an action." Owners of property in the immediate vicinity of property involved in zoning litigation have the requisite interest and status to become intervenors under Pa.R.C.P. No. 2327(4). Schatz v. Upper Dublin Township Zoning Hearing Board, 21 Pa.Cmwlth. 112, 343 A.2d 90 (1975); Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A.2d 692 (1960).
Objectors admit that they did not attempt to intervene as appellees in Erie's zoning appeal, but assert that their failure to do so should be excused, and this appeal allowed, because any attempt to intervene would have been denied by the lower court on the ground that the township sufficiently represented their interests. Pa.R.C.P. No. 2329(2). Of course, that argument is unpersuasive because it is based upon speculation.
A mere suspicion that the attempt to intervene would have been rejected by the court does not excuse objectors' failure to pursue the correct legal process.
Objectors...
To continue reading
Request your trial
-
Settling Land Use Disputes Under Rule 106(a)(4)
...and was otherwise sufficient to validate settlement agreement). 16. See Summit Tp. Taxpayers Ass'n v. Summit Tp. Bd. of Supervisors, 411 A.2d 1263 (Pa. Cmmw. Ct. 1980). In federal courts also have adopted this line of reasoning. See Callies, "The Use of Consent Decrees in Settling Land Use ......