In a concise opinion, Commonwealth Court recently reemphasized the importance of following the rules governing intervention in land use appeals in the case of Lescinsky v. Covington Zoning Hearing Board. 

The facts of the case were simple.  The Liscinskys appealed a zoning enforcement notice issued against them, and also requested a variance.  An adjoining property owner, Lorraine Sulla (“Sulla”) participated in the proceedings before the Convington Township Zoning Hearing Board (“ZHB”).  The ZHB upheld the enforcement notice, and denied the variance.

The Liscinskys appealed the decision, and before the trial court Sulla filed a “Notice of Intervention”.  Sulla did not file a “Petition to Intervene”.  This was a misstep—under the Pennsylvania Municipalities Planning Code (“MPC”), Sulla was undoubtedly required to file a Petition to Intervene.  Specifically, Section 11004-A of the MPC only permits the municipality and “any owner or tenant of property directly involved in the action” (the “Subject Property”) to intervene through a Notice of Intervention.  All other intervention is governed by the Pennsylvania Rules of Civil Procedure, which, at Rule 2328, require  the filing of a petition.

Notwithstanding her failure to file a petition, Sulla was permitted to participate before the trial court.  The matter was resolved through a stipulated settlement agreement, which Sulla took issue with and appealed to Commonwealth Court.

Commonwealth Court, although finding it “deeply troubling” that Sulla was permitted to participate below, quashed the appeal.  Sulla had not properly intervened before the trial court and was not a party to the action below.  She lacked standing to appeal.

While the rules governing intervention in land use appeals are straightforward, the mistake by Sulla demonstrates the importance of either (1) retaining competent legal counsel and/or (2) reading the statute and applicable procedural rules carefully.  At the end of its opinion, Commonwealth Court made clear that no exception will be made for ignorance or inexperience:

…we wish to stress that whether stemming from unfamiliarity with the Pennsylvania Rules of Civil Procedure, vestiges of countervailing local rules, error or misrepresentations made by counsel, or a matter traversing from courtroom to courtroom prior to reaching the merits, this issue has repeatedly reached this Court and the holding has been the same: unless you are a municipality or an owner or tenant of the property directly involved in the action appealed from, you must file a petition to intervene in the form of and verified in the manner of a plaintiff’s initial pleading in a civil action to participate as an intervenor in a land use appeal.

Click here to read: Joan Lescinsky and William Lescinsky v. Township of Covington Zoning Hearing Board, 1746 C.D. 2014 (Pa. Cmwlth. Ct. August 21, 2015).

Edited by:

MEP for PAZ Website Michael E. Peters, Esq.