Case Summary: PPM Atlantic Renewable v. Fayette County Zoning Hearing Board

September 2011Newsletters In the Zone

The case of PPM Atlantic Renewable v. Fayette County Zoning Hearing Bd., — A.3d —, 2011 WL 1753018, Pa. Cmwlth., May 3, 2011 (No. 1431 C.D. 2010), demonstrates the application and effect of Section 1003-A of the Municipalities Planning Code (MPC), 53 P.S. § 11003-A, which allows a party to request a bond in Common Pleas Court after the court disposes of a land use matter and a party takes a further appeal. The Commonwealth Court reaffirmed that recent holding in Takacs v. Indian Lake Borough, Zoning Hearing Bd., 18 A.3d 354 (Pa. Comm. 2011), that a bond entered after a Common Pleas Court disposes of a land use appeal is a final, appealable order. In PPM, the Commonwealth Court quashed an objector’s appeal to the Commonwealth Court where the objector failed to post bond or appeal the bond order.
Section 1003-A of the MPC provides a powerful mechanism to prevent frivolous appeals from third-party protestants by authorizing the trial court to impose a bond as a condition of proceeding with the appeal. Pursuant to Section 1003-A(d) of the MPC:

If the appellants [before the common pleas court] are persons who are seeking to prevent a use or development of the land of another ... the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition for posting a bond is presented, the court shall hold a hearing to determine if the filing of the appeal is frivolous. At the hearing, evidence may be presented on the merits of the case. It shall be the burden of the landowners to prove the appeal is frivolous. After consideration of all evidence presented, if the court determines that the appeal is frivolous, it shall grant the petition for posting a bond. The right to petition the court to order the appellants to post bond may be waived by the appellee, but such waiver may be revoked by him if an appeal is taken from a final decision of the court. The question of the amount of the bond shall be within the sound discretion of the court. An order denying a petition for bond shall be interlocutory....

53 P.S. § 11033-A(d).

In this case, PPM Atlantic Renewable (PPM) filed 22 applications with the Fayette County Zoning and Hearing Board (ZHB) requesting special exceptions and dimensional variances for construction of wind turbines. The ZHB denied all 22 of PPM’s applications, and PPM appealed to the trial court. The trial court remanded the case to the ZHB with specific instructions to grant all 22 special exceptions subject to conditions necessary to protect public health, safety and welfare. But on remand, the ZHB only granted 14 of the 22 special exceptions and attached onerous conditions to the special exceptions that were granted.

PPM appealed again to the trial court. The trial court sustained PPM’s land use appeal, finding the ZHB erred in denying the dimensional variance requests and the eight special exceptions and the conditions imposed were unreasonable. Immediately thereafter, PPM filed a motion for bond with the trial court, which the objector answered with a motion to strike. The objector also filed two notices of appeal with the Commonwealth Court on the merits of the trial court’s second order sustaining the land use appeal and the trial court’s first order remanding the case. The trial court granted PPM’s motion for bond, ordering the objector to file a bond as a condition precedent to continuing with the appeal filed. The objector then filed a motion in the Commonwealth Court to consolidate the appeals from the two trial court decisions, and PPM filed a motion to quash the appeals because the objector did not post the bond ordered or appeal the bond order. The Commonwealth Court granted the motion to quash, and the objector’s motion to reconsider was granted to a panel of the Commonwealth Court, which issued the subject decision.

The Commonwealth Court panel ultimately affirmed the motion to quash the objector’s merit appeal, relying heavily on its recent decision in Takacs. In that case, the court distinguished between a bond order entered prior to the trial court’s disposition of the land use appeal as compared with a bond order issued after the Common Pleas disposes of the land use appeal. The court found a bond order directing the appellant in a land use appeal to post an appeal bound as a condition for proceeding with the appeal is an interlocutory order because at that point, the trial court has not disposed of the matter. Where, however, a bond order is issued after the trial court disposes of the land use appeal, the bond order is a final order ancillary to the merits appeal. Because the objector in Takacs appealed the trial court’s bond order challenging its validity, the Commonwealth Court reviewed the trial court’s determination that the objector’s appeal was frivolous and affirmed that determination.

Unlike Tackas, the objector in PPM did not appeal the bond order. As a result, the Commonwealth Court held it was precluded from reviewing the merit appeal. Finally, the court rejected the objector’s argument that the holding in Takacs should not be retroactively applied to this case because it announced a new rule of law. The court found that while the holding in Tackas involved an arguably new interpretation of Section 1003-A(d) of the MPC, it concerned a procedural matter.

For more information, please contact Robert W. Gundlach, Jr. at 215.918.3636 or [email protected].

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