A recent Pennsylvania Commonwealth Court case sought to explain (and possibly expand?) the scope of standing in zoning matters and land use appeals.  To enjoy standing in a land use appeal, it is well-established that a person or party must have a “substantial, direct and immediate interest” in the outcome of the matter.  Frequently, such an interest is established by demonstrating that the objector lives near the property that is the subject of the appeal.  In nearly all cases, someone living directly adjacent to a project site has standing; but how far does the scope of standing extend?  

In Friends of Lackawanna (“FOL”) v. Dunmore Borough Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 157 (2018), the Commonwealth Court addressed this issue.  FOL involved a 714-acre sanitary landfill partially located in Dunmore Borough (“Borough”), Lackawanna County.  In 2014, the operator of the landfill requested a preliminary opinion from the Borough’s Zoning Officer (“Zoning Officer”) regarding whether the proposed expansion would be in compliance with the Borough’s Zoning Ordinance (“Ordinance”) and, in particular, whether the Ordinance’s building height requirements applied to the landfill.  The Zoning Officer determined the proposed expansion would comply with the Ordinance, and that building height requirements would not apply to the landfill since it was not a “structure.”

Objectors, individually and as members of FOL, an association formed to oppose the landfill expansion, appealed the Zoning Officer’s determination.  At the hearing before the Zoning Hearing Board (“ZHB”), the operator of the landfill challenged the objector’s appeal claiming they lacked standing to challenge the Zoning Officer’s preliminary opinion.  After taking testimony on the issue, the ZHB found the objectors did not have standing because they all lived too far from the project site and were separated from it by an interstate highway and a major highway interchange.  The objectors and FOL appealed to the Court of Common Pleas, which affirmed the ZHB’s determination.

An appeal to the Commonwealth Court followed.  Rather than focusing on the distance between the objector’s properties and the landfill, the Court considered the objector’s testimony before the ZHB that they were impacted by “pungent odors of rotting garbage,” dust, truck traffic and bird droppings from the seagulls that congregated at the landfill.  Noting that these impacts were unique to the objectors, and greater than the impacts from the landfill that other members of the community experienced, the Court held that the objectors had standing to challenge the Zoning Officer’s initial determination.  While the implications of this decision remain to be seen, one thing is clear- direct adjacency to a project site is not required to establish standing in a zoning matter or land use appeal, provided the party seeking standing can demonstrate that they have suffered a discernible adverse impact to some interest other than an abstract interest that all citizens of the community share.

Please contact a member of the McNees Wallace & Nurick Land Use Group with questions regarding this post, or for assistance with any land use matters, including land use appeals to court.