Commonwealth Court Quashes Appeal for Failure of Neighboring Property Owner To File Petition To Intervene as Party with Trial Court

October 5, 2015Articles In the Zone

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

In Pennsylvania, it is not uncommon for neighboring property owners to participate in a zoning hearing by providing comments, statements or even testimony. However, simply participating in a zoning hearing does not necessarily grant the neighboring property owner status as a party to the appeal or, more importantly, standing to file an appeal to court. The Pennsylvania Commonwealth Court recently addressed this issue and confirmed the appropriate procedure for a neighboring property owner seeking to intervene as a party to a zoning appeal.

In the case of Joan Lescinsky and William Lescinsky v. Township of Covington Zoning Hearing Board, the property owners, Joan and William Lescinsky, filed an appeal to the township’s Zoning Hearing Board after six different enforcement notices were issued by the township. The property owners appealed the enforcement notices and also requested a variance from the township ordinances. A neighboring property owner, Lorraine Sulla, participated in the hearing before the Zoning Hearing Board. Following the hearing, the Zoning Hearing Board denied the relief requested by the Lescinskys and they filed an appeal to the Lackawanna County Court of Common Pleas.

In the trial court, Sulla filed a Notice of Intervention in the appeal of Joan and William Lescinsky, however, Sulla did not file a Petition to Intervene with the court and obtain an order granting her party status in the action. In the appeal before the Court of Common Pleas, Sulla was allowed to participate as though she had properly intervened as a party.

While the appeal was pending before the Common Pleas Court, Joan and William Lescinsky reached a settlement with the township and entered into a stipulated settlement, which was approved as an order of the trial court. Sulla attempted to file an appeal from the order of the trial court, but her status as a party to the appeal was challenged by the parties to the settlement.

In its decision, the Commonwealth Court reviewed the rules governing intervention in land use appeals. Specifically, the court noted that Pennsylvania Rule of Civil Procedure 2328 requires an application for leave to intervene in the appeal from all individuals other than the property owner or tenant of the property directly involved in the action. Under Rule 2328, the application for leave to intervene must be made by a petition in the form of and verified in the same manner as an initial pleading in a civil action.

In the present case, although Sulla participated in the proceedings before the trial court, she did not file a petition to intervene as a party to the appeal. Therefore, Sulla was not a party to the appeal and had no standing to file an appeal from the trial court’s order. Accordingly, her appeal to the Commonwealth Court was quashed.

While the holding in Lescinsky seems basic, it highlights the importance of proper intervention in any land use proceeding. Even though a neighboring property owner appears to have a position consistent with the municipality during a local zoning proceeding, agreements and settlements can be reached which might not achieve the objectives of the neighboring property owner. Therefore, it is important for each property owner to evaluate their own interests and intervene in any land use action or appeal to protect those interests despite the position taken by the local municipality or any other party.