Sidney Hostetter and Evelyn Koppel, his Wife, v. South Londonderry Township Zoning Hearing Board, Corey Andrew and Anne Andrew, his Wife

Sidney Hostetter and Evelyn Koppel, his Wife, v. South Londonderry Township Zoning Hearing Board, Corey Andrew and Anne Andrew, his Wife

 

Civil Action-Property Law-Zoning-Variance-Petition to Stay Pending Land Use Appeal-Likely to Prevail on Merits-Irreparable Injury-Substantial Harm to Interested Parties-Adverse Impact to the Public

 

Corey and Anne Andrew (“the Andrews”) filed a request seeking a variance from requirements of an ordinance in order to reduce the setback of their front yard from the required forty (40) feet to twenty-one (21) feet in order to construct a new garage.  After the South Londonderry Township Zoning Hearing Board granted the variance request, neighboring property owners Sidney Hostetter and Evelyn Koppel (“Appellants”) filed an appeal and a Petition to Stay construction of the garage pending resolution of the appeal.

 

1. While the filing of a land use appeal shall not stay the action from which appeal was sought, an appellants may petition the court for a stay.

 

2. An application for a stay pending appeal involves a situation in which the merits of the dispute have been considered fully in an adversarial setting and a final decree has been rendered.

 

3. The grant of a stay is warranted if: the petitioner has made a strong showing or a substantial case that the petitioner is likely to prevail on the merits; the petitioner has shown that he or she will suffer irreparable injury without the requested relief; the issuance of a stay will not substantially harm other interested parties; and the issuance of a stay will not adversely affect the public interest.

 

4. A party requesting a stay usually must make a strong showing that the party is likely to prevail on the merits in order to justify issuance of a stay.

 

5. The court may exercise discretion to grant a petition to stay proceedings if the party has made a substantial case on the merits and the other factors strongly favor interim relief.

 

6. While Appellants failed to make a sufficiently strong showing that they are likely ultimately to prevail on the merits of the case, Appellants nonetheless have made a substantial case that they are likely to prevail on the merits where they assert that the legal standards for issuance of a variance have not been met because the property does not possess unique physical characteristics that create unnecessary hardship, the property has been developed in strict conformity with the existing ordinance, the variance would alter the essential character of the neighborhood and the variance sought is not the minimum needed to afford relief.

 

7. Appellants made a sufficient showing that they would suffer irreparable injury without the grant of a stay where they assert that the neighborhood and their view and gardening activities would suffer.

 

8. Appellants established that issuance of a stay would not substantially harm other interested parties where the Zoning Hearing Board took no position with regard to the Petition to Stay, resolution of the issue already has taken longer than the timeframe sought by the Andrews and building materials possibly could decrease in cost.

 

9. The issuance of a stay will not adversely affect the public interest where the general public usually has an interest in having a legal question decided on the merits prior to construction of a building.

 

L.C.C.C.P. No. 2022-00125, Opinion by Charles T. Jones, Jr., Judge, August 3, 2022.

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

SIDNEY HOSTETTER and                        :

EVELYN KOPPEL, his wife,                      :

Appellants,                                                 :

:

1. :                  Docket No.: 2022-00125

:

SOUTH LONDONDERRY TOWNSHIP     :

ZONING HEARING BOARD,          :

COREY ANDREW, and                    :

ANNE ANDREW, his wife,                         :

Appellees.

 

ORDER OF COURT

AND NOW, this 3^rd day of August, 2022, after careful consideration of the record, the Petition to Stay Issuance of Building Permit is GRANTED.

 

 

BY THE COURT:

 

_______________________, J.

CHARLES T. JONES, JR.

 

 

 

cc:     Edward J. Coyle, Esquire

Richard B. Druby, Esquire

Corey Andrew, Self-Represented Litigant

Anne Andrew, Self-Represented Litigant

Court Administration

Anthony D. Juliani, Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

SIDNEY HOSTETTER and                        :

EVELYN KOPPEL, his wife,                      :

Appellants,                                                 :

:

1. :                  Docket No.: 2022-00125

:

SOUTH LONDONDERRY TOWNSHIP     :

ZONING HEARING BOARD,          :

COREY ANDREW, and                    :

ANNE ANDREW, his wife,                         :

Appellees.

 

APPEARANCES:

Edward J. Coyle, Esquire                   For Appellants

Richard B. Druby, Esquire                           For Appellee South Londonderry

Township Zoning Hearing Board

Corey Andrew                                             Self-Represented Litigant

Anne Andrew                                              Self-Represented Litigant

 

OPINION BY JONES, JR. J.:

Before this Court is a Petition to Stay Issuance of Building Permit (“Petition to Stay”).  After careful consideration of the record and for the reasons set forth herein, the Petition to Stay is granted.

 

1. FACTUAL AND PROCEDURAL HISTORY

Corey Andrew and Anne Andrew (collectively “Andrews”) are the owners of and reside at 131 Valley Road, Mt. Gretna, Pennsylvania 17064 (“Subject Property”).  The South Londonderry Township Zoning Hearing Board (“ZHB”) is a municipal body with an address of 27 W. Market Street, Palmyra, Lebanon County, Pennsylvania 17078.  Sidney Hostetter and Evelyn Koppel (collectively “Appellants”) are the owners of and reside at 125 Valley Road, Mt. Gretna, Pennsylvania 17064.  The Andrews and the Appellants are neighbors.

This matter arises from a request by the Andrews for a variance from Section 210.H of the South Londonderry Township Zoning Ordinance, and more specifically, a variance to reduce the front yard setback to twenty-one feet from the required forty feet.  The Andrews sought this variance in order to construct a new proposed garage.  The Subject Property is located in a Low Density Residential Zoning District.

The ZHB held a public hearing on the Andrews’ variance request on November 22, 2021.  The Appellants requested and were granted party (opponent) status at this hearing, as their residence borders the Subject Property.  On January 5, 2022, the ZHB issued their decision granting the Andrews’ variance request.  The Appellants appealed the ZHB’s decision on February 3, 2022.  The Appellants argued in their Land Use Appeal that the ZHB erred and/or abused their discretion in granting the Andrews’ variance request, and the Appellants requested that this Court overturn that decision by the ZHB.

The Appellants filed a Petition to Stay on February 8, 2022.  The Appellants expressed their concerns that their appeal may become moot if the ZHB issued a building permit to the Andrews during the appeal.  On February 11, 2022, this Court entered a Rule to Show Cause as to why the building permit should not be stayed pending the appeal.  On February 25, 2022, the Andrews filed a Response to Petition to Stay which opposed the stay.  The Andrews argued that if the stay is granted then their compliance with Section 703.N.1 of the South Londonderry Township Zoning Ordinance may be compromised, that their current timeframe for the project may be compromised, that they potentially suffer increased costs in the project given the current inflation trends, and that the Appellants are not likely to succeed on the merits of the Land Use Appeal.  The ZHB did not file a response to the February 11, 2022 Rule to Show Cause.

The Appellants filed a Motion for Determination Without Hearing on March 10, 2022.  On March 15, 2022, this Court entered a Rule to Show Cause as to why the matter should not be decided upon briefs and argument rather than being scheduled for further testimony.  The Appellants filed a Petition to List for Argument Court and to Stay Issuance of Building Permit in the Interim on March 25, 2022.  On March 30, 2022, this Court entered an Order directing the Prothonotary to list the case for Argument Court.

On April 7, 2022, the Appellants filed a Motion for Rule Absolute regarding the Rule to Show Cause as to why the matter should not be decided upon briefs and argument rather than being scheduled for further testimony.  The Appellants filed the Brief in Support of Petition to Stay on April 8, 2022.  The Appellants reiterated the positions in their Land Use Appeal and Petition to Stay; the Appellants argued that the ZHB erred and/or abused their discretion in granting the Andrews’ variance request and that their appeal may become moot if the ZHB issued a building permit to the Andrews during the appeal.  On April 11, 2022, this Court granted the Motion for Rule Absolute.  The ZHB filed the Brief of ZHB in Response to Appellants’ Brief in Support of Petition to Stay on April 22, 2022.  The ZHB expressed that this Court should defer to the ZHB as the factfinder for the Land Use Appeal based on relevant statutory law and precendents.  However, as for the Petition to Stay, the ZHB took no position.  The Andrews did not file a response to the Appellants’ Brief in Support of Petition to Stay.  No oral argument was held on May 6, 2022 as this matter is to be decided on the briefs.  Notably, on July 11, 2022, the ZHB filed a Praecipe for Disposition regarding the Appellants’ Land Use Appeal.

 

1. STANDARD OF REVIEW

The filing of a land use appeal in court shall not stay the action appealed from, but under 53 Pa. Stat. Section 11003-A(d), the appellants may petition the court for a stay.  53 Pa. Stat. § 11003-A(d).  The Supreme Court of Pennsylvania held in Pennsylvania Public Utility Commission v. Process Gas Consumers Group (“Process Gas”) that the standards established by the Virginia Petroleum Jobbers Association v. Federal Power Commission (“Virginia Jobbers”) court as refined by the Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc. (“Washington Metropolitan Area”) decision provide a rational basis for the issuance of a stay pending appeal and are the criteria to be followed by the courts of this Commonwealth.  Process Gas, 467 A.2d 805, 809 (Pa. 1983); see also Virginia Jobbers, 259 F.2d 921 (D.C. Cir. 1958) as refined by Washington Metropolitan Area, 559 F.2d 841 (D.C. Cir. 1977).  Under this framework, the grant of a stay is warranted if:

1. The petitioner has made a strong showing or a substantial case that he is likely to prevail on the merits.
2. The petitioner has shown that he will suffer irreparable injury without the requested relief.
3. The issuance of a stay will not substantially harm other interested parties in the proceedings.
4. The issuance of a stay will not adversely affect the public interest.

Maritrans G.P., Inc., Maritrans Partners L.P., and Maritrans Operating Partners L.P. v. Pepper, Hamilton & Scheetz and J. Anthony Messina, Jr., 573 A.2d 1001, 1003 (Pa. 1990); see also Process Gas at 808–09 (adopting the standards set forth in Virginia Jobbers, as refined by Washington Metropolitan Area, as the criteria of Pennsylvania courts for the issuance of a stay pending appeal).

An application for a stay pending appeal involves a situation in which the merits of the dispute have been fully considered in an adversarial setting and a final decree rendered.  Process Gas at 809.  Under these circumstances, the unsuccessful party, who seeks a stay of a final order pending appellate review, usually must make a strong showing under the first factor of the above criteria in order to justify the issuance of a stay.  Id.  Regarding land use appeals, if the record below includes findings of fact made by the governing body, board, or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, then the findings of the governing body, board, or agency shall not be disturbed by the court if supported by substantial evidence.  53 Pa. Stat. § 11005-A.  However, a court may exercise discretion to grant a stay when confronted with a case in which the other three factors strongly favor interim relief if the movant has made a substantial case on the merits.  Process Gas at 809; Washington Metropolitan Area at 843.  The requirement that the applicant for a stay show that he is likely to prevail on the merits should not be an inflexible rule and this criterion must be considered and weighed relative to the other three criteria because the requirement of seeking the stay in the first instance would be a futile gesture if the likelihood of success on the merits is a rigid standard.  Process Gas at 809 n.8.

 

III.    DISCUSSION

Here, the Appellants were allowed to petition for a stay under 53 Pa. Stat. Section 11003-A(d), and this Court may grant their Petition to Stay in certain circumstances.  53 Pa. Stat. § 11003-A(d).  The above criteria of Process Gas apply to this Petition to Stay because the Appellants are requesting the issuance of a stay pending appeal and the merits of the dispute have been fully considered by the ZHB in an adversarial setting.  Process Gas at 809; see also Virginia Jobbers as refined by Washington Metropolitan Area.  Moreover, the public hearing held by the ZHB on November 22, 2021 was an adversarial setting because the Appellants were granted party (opponent) status, and a final decree was rendered because the ZHB issued their final decision on January 5, 2022.  Process Gas at 809.

Under the first factor of the above criteria, the Appellants would normally be required to make a strong showing that they are likely to prevail on the merits in order for their Petition to Stay to be granted.  Id.  A strong showing will be difficult for the Appellants in these circumstances because, if the record below includes findings of fact made by the ZHB whose decision or action is brought up for review and this Court does not take additional evidence or appoint a referee to take additional evidence, then the findings of the ZHB shall not be disturbed by this Court if supported by substantial evidence.  53 Pa. Stat. § 11005-A.  Notably, on April 11, 2022, this Court granted the Motion for Rule Absolute regarding the earlier Motion for Determination Without Hearing which in effect requires this Court to not disturb the findings of the ZHB if their findings are supported by substantial evidence.  Therefore, this Court does not find that the Appellants made a sufficiently strong showing that they are likely to ultimately prevail on the merits of the case to satisfy the first factor.

However, this Court may exercise discretion to grant the Petition to Stay if the Appellants have made a substantial case on the merits and if the other three factors strongly favor interim relief.  Process Gas at 809; Washington Metropolitan Area at 843.  The requirement that the Appellants show that they are likely to prevail on the merits should not be an inflexible rule and this criterion must be considered and weighed relative to the other three criteria because the requirement of seeking the stay in the first instance would be a futile gesture if the likelihood of success on the merits is a rigid standard.  Process Gas at 809 n.8.  Likewise, the Appellants expressed their concerns that their appeal may become moot if the ZHB issued a building permit to the Andrews during the appeal.  This Court does find that the Appellants made a substantial case in their relevant filed documents that they are likely to prevail on the merits.  Succinctly, the Appellants argue that the ZHB erred and/or abused its discretion because 1) the Subject Property does not possess unique physical characteristics that create unnecessary hardship; 2) the Subject Property can, and already has, been developed in strict conformity with the South Londonderry Township Zoning Ordinance; 3) if there is any unnecessary hardship, then it was created by the Andrews; 4) if authorized, the variance would alter the essential character of the neighborhood; and 5) the variance sought by the Andrews is not the minimum variance needed to afford relief.  This Court finds that the Appellants having raised these significant legal issues satisfies the first factor in conjunction with the other three factors.

Regarding the second factor, this Court finds the Appellants have made a sufficient showing of a probability that they will suffer irreparable injury without the requested relief for the following reasons.  If the proposed garage is put into place, then the neighborhood will be altered according to the Appellants.  Furthermore, the Appellants’ view and their gardening on their own property will suffer according to them.  The placement of this proposed garage will effectively alter real estate, and real estate is often considered unique and subject to equitable remedies.  Therefore, this Court finds the Appellants have made a sufficient showing of a probability that they will suffer irreparable injury without the requested relief.

Regarding the third factor, this Court finds the issuance of a stay will not substantially harm other interested parties in the proceedings for the following reasons.  First, the ZHB took no position on the Petition to Stay, and therefore, this Court finds that ZHB will not be substantially harmed by the issuance of the requested stay.  Second, the Andrews did not file a brief in response to the Petition to Stay.  However, the Andrews did file a Response to Petition to Stay, and thus, this Court will look to this document for the analysis on the potential impact on the Andrews.

For the Andrews’ concerns about whether their compliance with Section 703.N.1 of the South Londonderry Township Zoning Ordinance may be compromised, this case has already taken longer than the six month window the Andrews hoped for and will likely take longer to resolve.  Furthermore, the Andrews are still likely able to continue with their plans if they win the Land Use Appeal and then become authorized to proceed at that point in time.  The Andrews also have the option to apply in writing to the ZHB for an extension to the time period.  Likewise, for the Andrews’ concern about whether their current timeframe for the project may be compromised, again a lot of time has already passed and the summer is already largely over.  Allowing the stay will not likely substantially harm the Andrews for this reason.  Regarding the Andrews potentially suffering increased monetary costs in the project, this Court notes that the materials could also possibly decrease in price.  Additionally, this is a monetary concern that could possibly be recovered in money damages while the Appellants’ probability that they will suffer irreparable injury cannot be recovered in money damages.  Also, the Andrews could have petitioned this Court to order the Appellants to post a bond as a condition to proceeding with the appeal under 53 Pa. Stat. Section 11003-A(d).  53 Pa. Stat. § 11003-A(d).  For the Andrews’ argument that the Appellants are not likely to succeed on the merits of the Land Use Appeal, the precedents explain that the requirement that the applicants for a stay show that they are likely to prevail on the merits should not be an inflexible rule and this criterion must be considered and weighed relative to the other three criteria because the requirement of seeking the stay in the first instance would be a futile gesture if the likelihood of success on the merits is a rigid standard.  Process Gas at 809 n.8.  Furthermore, this Court would not like to have to order the Andrews to remove the garage later if this Court does determine that the Land Use Appeal is meritorious.  Overall, this Court finds that the Andrews will not be substantially harmed by maintaining the interim stay and the status quo by having this stay issued while the case is decided on the merits.  Therefore, this Court finds the issuance of a stay will not substantially harm other interested parties in the proceedings.

Regarding the fourth factor, this Court finds the issuance of the stay will not adversely affect the public interest.  No party alleged that the public interest would be adversely affected by the Petition to Stay.  This Court does not see how the public interest would be harmed by this stay.  Instead, this Court notes that the general public usually has an interest in having legal questions decided on the merits as correctly and quickly as possible.  Therefore, this Court finds the issuance of the stay will not adversely affect the public interest.

While this Court finds that the Appellants were only able to provide a substantial case that they are likely to prevail on the merits rather than providing a strong showing, the other three factors strongly favor interim relief.  Process Gas at 809; Washington Metropolitan Area at 843.  Here, the absence of a stay possibly leads to a moot appeal, the altering of the neighborhood, the altering of the Appellants’ view, and the altering of the Appellants’ ability to garden.  In contrast to this irreparable harm, there is little indication that a stay pending appeal will result in substantial harm to either the ZHB or the Andrews.  Moreover, building the garage and possibly having to remove it later is a bigger risk for substantial harm for the Andrews.  Lastly, the general public is not likely to be adversely affected by the Petition to Stay.  Therefore, for all of the aforementioned reasons, this Court finds the prudent decision is to grant the Petition to Stay which will maintain the interim stay and the status quo until this case is decided on the merits.

 

1. CONCLUSION

Therefore, after careful consideration of the record and for the aforementioned reasons, the Petition to Stay is granted.  However, this Court reserves the right to assess additional costs and/or expenses against the Appellants if their Land Use Appeal is unsuccessful.  A concomitant order will be entered consistent with the foregoing.