Opinion
No. 1032 C.D. 2012
10-11-2012
Wayne Bradley, Appellant v. Zoning Hearing Board of the Borough of New Milford
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Wayne Bradley (Objector) appeals the order of the Court of Common Pleas of Susquehanna County (trial court) granting the Susquehanna County Housing Development Corporation's (Landowner) petition requiring Objector to post bond pursuant to Section 1003-A(d) of the Pennsylvania Municipalities Planning Code (MPC). We reverse.
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §11003-A(d). Section 1003-A(d) of the MPC states, in pertinent part:
(d) [I]f the appellants 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 directing the respondent to the petition for posting a bond to post a bond shall be interlocutory. If an appeal is taken by a respondent to the petition for posting a bond from an order of the court dismissing a land use appeal for refusal to post a bond, such responding party, upon motion of petitioner and, after hearing in the court having jurisdiction of land use appeals, shall be liable for all reasonable costs, expenses and attorney fees incurred by petitioner.
Landowner owns the former Southern Tier Plastics plant on a 2.77-acre parcel located at 358 Church Street in New Milford Borough's I-1 (Industrial) zoning district. Landowner intends to remove the industrial building and replace it with a mid-rise apartment building for senior citizens. To that end, on February 8, 2011, Landowner filed an application with the Zoning Hearing Board (Board) of the Borough of New Milford (Borough) for a use variance to redevelop the parcel.
The projected overall cost is $5,600,000 for the redevelopment of the site including the construction of the senior housing facility. The Pennsylvania Housing Finance Agency (PHFA) awarded Landowner tax credits totaling $4,700,000 for the project, and Landowner received $747,000 from the Pennsylvania Department of Community and Economic Development and $100,000 from the County Commissioners to complete the project. Landowner will be required to swap the 2012 PHFA tax credits for 2013 tax credits if the project is not completed by September 2013, and Landowner will have to pay PHFA a $33,250 fee and lose an additional $520,000 in tax dollars. It was projected that a one-year delay could lead to increased construction costs of $380,000 and increased development costs of $125,000.
That same date, Landowner filed an application with the Borough to amend the Borough's zoning ordinance and zoning map to rezone the parcel from the I-1 zoning district to the D-1 (Redevelopment) zoning district. On May 5, 2011, the Borough's Council enacted a resolution rezoning Landowner's parcel. Objector filed an appeal of a resolution, alleging that the resolution purporting to amend the Borough's zoning ordinance and map did not comply with the MPC, and the trial court consolidated the rezoning and the variance appeals for hearing. The trial court dismissed Objector's rezoning appeal as frivolous under 53 P.S. §11003-A(d). Ultimately, we reversed the trial court's order and remanded for a hearing on the merits, concluding that Objector's claim with respect to the effectiveness of the resolution had merit. Bradley v. New Milford Borough Council (Pa. Cmwlth., No. 358 C.D. 2012, filed July 19, 2012).
When Landowner's request for a variance was being heard, Objector appeared through counsel both individually and as the owner of Wayne Bradley Trucking and Leasing, Incorporated, a business located in the Borough opposing the grant of the requested variance. Nonetheless, on May 9, 2011, the Board granted Landowner's variance application. On June 9, 2011, Objector filed an appeal of the Board's decision to the trial court, alleging that he is the owner and occupant of the premises located at 153 Susquehanna Street which is adjacent to Landowner's parcel and Landowner intervened in the appeal.
On his appeal to the variance, Objector testified that he does not reside in the Borough but owns the adjacent property in the Borough which he uses for his business and where his son resides. He testified that his mother and father previously owned the property, his father passed away years ago, and that it was devised to him by his mother when she died on September 17, 2010. By deed dated June 28, 2011, and filed July 12, 2011, the property was conveyed by Objector and his mother's estate to H.L. Bradley Farms, Inc. Objector is the President, owner and sole shareholder of H.L. Bradley Farms, Inc.
The Board then filed a motion to dismiss Objector's land use appeal on the basis that he lacked standing as an individual because he was not a "person aggrieved" because he did not own any property in the Borough. The trial court did not rule on that motion but instead issued a rule returnable on February 19, 2012, upon Objector, Borough Council and Landowner to show cause why Objector's appeal should not be dismissed for his lack of standing. On February 23, 2012, the trial court issued an order granting the motion to dismiss and quashed Objector's land use appeal, concluding that Objector did not have standing to initiate the appeal individually or to continue prosecuting the appeal because title was never vested in him as an individual. On March 16, 2012, Objector filed an appeal of the trial court's order quashing his land use appeal that is lodged in this Court at No. 447 C.D. 2012.
On March 27, 2012, Landowner filed a petition to compel Objector to post an appeal bond pursuant to 53 P.S. §11003-A(d). By order dated May 3, 2012, the trial court determined that Objector's appeal was frivolous and ordered Objector to file an appeal bond of $1,000,000. This appeal followed.
Because the appeal bond order was issued after the trial court disposed of Objector's land use appeal, we consider such an order to be an order ancillary to the appeal lodged at No. 447 C.D. 2012. Pa. R.A.P. 1701(b)(1); Newtown Square East, L.P. v. National Realty Corporation, 38 A.3d 1018, 1029 (Pa. Cmwlth. 2011); Takacs v. Indian Lake Borough, Zoning Hearing Board, 18 A.3d 354, 357 (Pa. Cmwlth. 2011). Because the ancillary order disposes of the appeal bond matter, it is a final order and Objector may appeal the order as of right. Pa. R.A.P. 341; Takacs, 18 A.3d at 357.
This Court's scope of review of the trial court's determination of whether a land use appeal is frivolous and for the purpose of delay, and, therefore, whether the appellant may be required to post bond, is limited to determination of whether the court abused its discretion. C.A.N.D.L.E. v. Board of Commissioners of Fayette County, 502 A.2d 742, 745-46 (Pa. Cmwlth. 1985).
In this appeal, Objector claims that the trial court erred in imposing the appeal bond without conducting a hearing as required by 53 P.S. §11003-A(d) and in concluding that Objector's appeal is frivolous. However, in determining whether an appeal is frivolous, the trial court is not required to hold a hearing where it is familiar with the merits of the case. Takacs, 18 A.3d at 358; C.A.N.D.L.E., 502 A.2d 744. In this case, the trial court had already conducted a hearing on Objector's land use appeal and had quashed that appeal and was, therefore, familiar with the merits of the issues underlying Objector's appeal of its order.
Objector also asserts that because the trial court erred in relying on his lack of standing in determining that his appeal was frivolous, the order imposing the appeal bond should be reversed and the matter remanded for a hearing on the merits of his land use appeal. However, the appeal bond imposed in this case does not relate to the appeal before the trial court of the Board's decision. Rather, as noted, the instant appeal of the trial court's order imposing the appeal bond is ancillary to the appeal lodged in this Court at No. 447 C.D. 2012 of the trial court's order quashing Objector's land use appeal. A remand for the consideration of the merits of Objector's land use appeal will flow from the disposition of that appeal and not from this appeal of an order that is ancillary to that appeal. --------
Parties seeking to have a trial court direct the posting of an appeal bond under 53 P.S. §11003-A(d) must demonstrate that the appeal is frivolous. Newtown Square East, L.P., 38 A.3d at 1030. In evaluating whether a trial court correctly concluded that an appeal is frivolous, we must consider the merits of the appeal. Id. A court may conclude that an issue is frivolous when there is no reasoned interpretation that might support an appellant's position and, therefore, the appellant has no reasonable chance of success. Id.
In this case, the determinative issue is whether a person who is the sole shareholder of a corporation that owns abutting property has standing to maintain a zoning challenge as a "landowner" under Section 107(12) of the MPC, 53 P.S. §10107(12), which is defined as "the legal or beneficial owner or owners of land", as well as "purchasers, optionees and some lessees", and "other persons having a proprietary interest in land." Beekhuis v. Zoning Hearing Board of Middletown Township, 429 A.2d 1231, 1236-37 (Pa. Cmwlth. 1981). Because that issue of whether a sole stockholder has a sufficient beneficial interest has never been addressed by the courts of this Commonwealth, it is certainly not clear that Objector has no chance of success on the merits in the currently pending related appeal. As a result, the trial court abused its discretion in imposing a bond under 53 P.S. §11003-A(d) on the basis that Objector's appeal is frivolous and merely for the purpose of delay.
Accordingly, the trial court's order is reversed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 11th day of October, 2012, the order of the Court of Common Pleas of Susquehanna County, dated May 3, 2012, at No. 2011-841-CP, is reversed.
/s/_________
DAN PELLEGRINI, President Judge