South Bethlehem and the Future of Standing at the Zoning Hearing Board
By: Andrew R. Freimuth, Esq. and Colleen E. McGrath, Esq.
In May of 2023, the Pennsylvania Supreme Court was asked to determine under what circumstances an objector to a zoning application, who receives “party” status to appear in front of a zoning hearing board (ZHB) and participates in the hearing on a zoning application, will have standing to appeal an adverse decision by the ZHB to the Court of Common Pleas. In deciding South Bethlehem Associates v. Zoning Hearing Board of Bethlehem Township, the Majority found that even if one is granted party status before the ZHB, that objector also needs to satisfy what the Court refers to as “traditional notions of standing” to be permitted to appeal the ZHB’s decision. That is, the objector granted party status must also show that he is “aggrieved” in order to appeal the ZHB decision. This “aggrieved party” status is notably more discriminating than the standard applicable to objectors in front of the ZHB under the Pennsylvania Municipalities Planning Code Section 908(3), which only states that a “person affected by the application who has made timely appearance of record before the board” or any other person including civic or community organizations to appear before the ZHB may be a party. The Majority in South Bethlehem found that a lower bar for standing before the ZHB is intended to support the goal of informed and comprehensive local land use decision making, but judicial review of a ZHB’s decision necessarily demands traditional standing, as required for any other appellant seeking judicial review by the court on any other matter. Party status before the ZHB is seemingly not dispositive under this prevailing analysis—therefore, there is no need for extensive, in-depth “mini hearings” on the threshold issue of party status for each person seeking to participate in the proceedings before the ZHB in the Majority’s view.
As it stands, South Bethlehem and its progeny maintain that the particular standing to appear before a local ZHB and the standing necessary to actually bring an appeal of a decision of the ZHB to the Court of Common Pleas can, and, in fact, do, differ significantly.
But South Bethlehem was a narrow 3-2 decision. The Dissent reasoned that any and all objectors that achieve party status before the ZHB, which involves minimal, if any, showing of anticipated harm or impact of the relief requested in the zoning application, based on the plain language of Section 908(3) of the MPC, are necessarily aggrieved by an unfavorable ruling by the ZHB. As the Dissent does well to point out, Pennsylvania courts have traditionally applied this same rationale, albeit, through a very different analytical framework.
Thus, in the Dissent’s view, an objecting neighbor punches his ticket to the Court of Common Pleas on appeal as soon as he is granted party status by the ZHB. While South Bethlehem’s majority opinion still represents the prevailing legal guidance on this issue, it is distinctly possible that local land use practitioners need to be prepared for a change.
As a result, the prudent land use practitioner is left with a difficult decision when preparing to appear before a ZHB next time. In an effort to provide top-notch legal advice and representation, land use practitioners may want to consider developing the record before the ZHB by conducting the “mini hearing” on the issue of party status that may become critical (even if party status is granted by the ZHB) should an objector attempt to appeal the ZHB decision down the road.
How the zoning hearing process could change
On a practical level, mini hearings on party status have the potential to extend zoning proceedings well beyond the typical timeline one might reasonably expect for an equivalent zoning application today. They also make the zoning process considerably more expensive, for applicants seeking zoning relief and municipalities considering zoning applications alike. The vast majority of ZHB hearings are conducted in the evening and it is not unusual to see multiple zoning matters slated for one evening—if individual mini hearings on party status become the norm, the hearing process could be extended significantly, depending on the largely unpredictable level of public participation. This could result in the need to pause zoning hearings partway through the proceeding and continuing several matters to the next hearing date, which may be a month away. Costs to applicants and municipalities to prepare for and conduct these extended, multipart proceedings may discourage use of the local zoning process and may stifle development in general, with a particularly severe impact on small projects where funds for legal fees are limited, most likely in the case of existing community members seeking relief for their residences. As a result, the average ZHB meeting and the overall zoning process may look very different than it does today.
How the relevant testimony could change
Beyond increased time and cost concerns, land use practitioners appearing before a ZHB will likely need to prepare for a hearing differently. Practitioners will be forced to try to anticipate neighbors’ concerns and prepare salient questions that could focus on any number of items of zoning relief to be addressed in connection with one zoning application. Questions relevant to evaluating party status relating to relief from dimensional zoning requirements may look very different than questions relevant to determining interests where a use variance is proposed. Things get even more complicated where multiple items of zoning relief are connected in one application.
The result is that one may be forced to devote considerable preparation for cross-examining any and all objectors—who may be totally unknown to the applicant until the objector actually shows up at the hearing—seeking party status at each zoning hearing on each of their interests in the matter, anticipated harms, and other relevant facts. Given the compounding variables of the type and degree of zoning relief requested and the array of questions relevant to identify a would-be party’s specific concerns or perceived harms in relation to that application, one must be prepared to cross-examine objectors in several different areas to establish a solid record in the event of an appeal. Where, now and historically, issues such as an individual’s address or proximity to the subject property, or whether they received notice of the hearing, may have represented the sum total of an applicant’s questions for objectors seeking party status, practitioners may now find it necessary to prepare a host of questions relevant to any possible objector’s position, harm, circumstance or general gripe with the zoning application.
How the Zoning Hearing Board’s approach to the hearing may change
Attorneys appearing before the ZHB must also be cognizant of the ZHB’s appetite to afford party status to participants. The South Bethlehem dissent says in very plain terms that the ZHB is the gatekeeper of party status—where a ZHB is aware of the changing significance of party status, boards may be more selective when granting party status if they are aware of the implications of such a decision on the likelihood of appeal. This result seems to defy the purpose and letter of Section 908(3) of the MPC and a broad grant of standing to appear as a party to the hearing.
ZHBs may also take more aggressive roles questioning objectors seeking party status themselves, leaving the applicant with a voluminous record devoted to a few objectors’ laundry list of concerns about an application. Practitioners must consider the effect of opening a zoning hearing with focus on opposition from neighbors and additional time devoted to the difficulties of a particular application. Where multiple parties oppose the same relief for the same reasons, boards are bombarded with negative comments that the applicant’s counsel is effectively forced to ask in order to protect appellate rights. The practical impact may be that a particular hearing becomes a soapbox for opponents of a project that encourages additional objectors or sours the ZHB on an application before a witness even takes the stand. Explaining the purpose and significance of this process of challenging party status may also be abstract and frustrating to even the most sophisticated clients, so land use practitioners need to be prepared to explain why the zoning process looks so adversarial if South Bethlehem is overturned or modified.
How objecting to party status could change
Perhaps most importantly, land use practitioners will need to prepare to preserve their objections to an individual’s party status (should the board grant it) on the record for the proceeding. This ensures that the issue is not waived if an objector does take appeal the ZHB decision. Consider that, under South Bethlehem, land use practitioners may not routinely consider appealing an objector’s standing before the ZHB under the MPC criteria, as the “aggrieved party” standard demands more of parties whose standing was already shaky. However, if this shift toward the Dissent’s analysis comes to pass, appeals on the issue of standing analyzed under the MPC standard will look very different and will likely yield very different results.
About the authors:
Andrew R. Freimuth represents individuals, businesses, institutions, municipalities, and nonprofit groups in a variety of real estate, land use, municipal law, and zoning matters. He is a partner at Wisler Pearlstine and a member of the firm’s municipal law and real estate, zoning, and land development practice groups.
Colleen E. McGrath advises municipalities on a broad range of matters including, but not limited to, policy, ordinance, contract development, land use and zoning, and board governance. She is an associate at Wisler Pearlstine and a member of the firm’s municipal law and real estate, zoning and land development practice groups.
