Interested landowners engaged in the appeal of a local ordinance may not continue to press the appeal once the original appellant has withdrawn, the state Supreme Court has ruled.

The high court ruled unanimously Oct. 30 that “parties to a hearing” are distinct from “party appellants,” and do not have the rights to continue an appeal to an ordinance after the appellant has withdrawn. The decision in Stuckley v. Zoning Hearing Board of Newtown Township overturns the Commonwealth Court’s finding that parties to an appeal have the same rights to continue an appeal as the party appellant.

Writing the opinion, Justice J. Michael Eakin said there is a clear distinction between the parties.

“The reasons a board may, in its option, require a written appearance are many, including identifying witnesses, their interest, and residence, as well as for notice purposes; it does not bespeak full party status,” he said. “We must disagree that participating in a challenge as ‘parties to the hearing’ confers the right to continue that challenge when the original challenger withdraws.”

Chief Justice Ronald D. Castille and Justices Seamus P. McCaffery and Debra M. Todd joined Eakin’s opinion. Justice Max Baer filed a concurring opinion, finding that the appeal was rendered moot before the Commonwealth Court’s decision. Justice Thomas G. Saylor joined Baer’s opinion and also filed his own concurring opinion.

According to Eakin, in 2006, Upper Makefield and Newtown townships amended a jointly enacted ordinance. Property owner Leo Holt appealed to the Zoning Board of Newtown, alleging that there were defects in the enactment. Some neighboring property owners came to the first hearing and were designated “parties to the hearing.”

After Holt withdrew his challenge in June 2007, the board terminated the proceedings, and the ordinance was repealed entirely. A new, allegedly curative ordinance was enacted, and the neighbors sought to continue Holt’s challenge.

The board determined that under the Municipalities Planning Code, “party appellants” and “parties to a hearing” are separate entities, and therefore the neighbors could not continue the challenge. However, the trial court reversed the board’s findings and held that there was no distinction between the parties.

Toll Brothers, which planned to develop land on the impacted district and had previously intervened in the proceedings, appealed the trial court’s decision and also filed an application to dismiss the appeal as moot.

The Commonwealth Court allowed the neighbors to continue the appeal, holding that the MPC does not specifically state that the rights of the “parties to the hearing” depend on the “party appellant” remaining in the action.

Eakin disagreed with the Commonwealth Court’s holding, and said that clear distinctions exist between “party appellants” and “parties to a hearing.” He noted that an appellant must be aggrieved and must file paperwork indicating specific issues, while a party to the hearing only needs to file minimal paperwork, if any, and only needs to be affected by the ordinance.

Eakin said the parties to the hearing have a right to be heard but no right to settle the matter, and that their claims rely on the existence of the original challenge. Otherwise, he argued, if Holt wanted to settle the matter, the settlement could not be implemented if the neighbors could prolong the litigation.

“The parties to the hearing cannot be denied the ability to provide input, but providing input is not the same as a challenge any more than being a witness makes one a litigant,” he said. “It gives one a voice, not a vote.”

Eakin also determined that the Commonwealth Court rightly examined whether the neighbors could continue the challenge; however, Baer agreed with Toll Brothers’ contentions that the appeal became moot when the first ordinance was repealed and the neighbors failed to challenge the reenactment ordinance.

“It appears that the proper validity challenge should have been to [the second ordinance] under which Toll Brothers filed preliminary development plans and under which land use approvals were granted,” Baer said.

Saylor agreed with Baer but added that he was troubled by the statutory terms. He suggested that the zoning boards should clearly state the rights of the parties.

“It seems to me that it has the potential to mislead participants in a hearing into believing that they have attained ‘party’ status, when, in fact, without further action on their party, their role is a materially circumscribed one,” he said.

Robert L. Byer of Duane Morris, who represented Toll Brothers, said he was pleased with the holding.

“The decision clarified a previously unclear issue of Pennsylvania law,” said Byer. “Even with the justices who would have decided it differently on mootness, nobody disagreed with the result in the majority.”

Darrell Zaslow of Walder & Zaslow, who represented the neighboring landowners, said requiring each person to file his or her own appeal would have cost approximately $28,000 in filing fees. He suggested the legislature should amend the ordinance to allow a person to become a party to the appeal without paying additional filing fees.

“The parties participated in nine hearings, cross-examined witnesses and presented evidence,” Zaslow said. “To be then told at the end of that that they were not parties was surprising.”

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.

(Copies of the 21-page opinion in Stuckley v. Zoning Hearing Board of Newtown Township, PICS No. 13-3115, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •