Wednesday, December 30, 2015

The ABC's of choosing to sue your town when you believe you are being abused

OK, so you feel you have been wronged by your town.  There is something that impacts you or your neighbors or friends, or something you just do not feel is right.out of principle.  The town officials or the zoning hearing board is not following the laws.  Your town zoning ordinance is the law of your land.  The supervisors make and amend laws, the zoning hearing board has the power (and solemn responsibility) to only interpret and uphold the law - not change it.

Role of Zoning Hearing Board
The zoning hearing board hears variance appeals, interpretations, and for uses that require attention to possible nuisances, special exceptions.  There are specific criteria, laid out by the Municipalities Planning Code (MPC), that an Applicant must show it satisfies.  Some are subjective - which is why uses are rarely rejected.  If the zoning hearing board feels that in one or more areas of nuisance (operating hours, sound barrier, light barrier, etc) a restriction is needed, it can place conditions on the Applicant.  The job of the zoning hearing board is a very important one as judge and jury, both for screening special exception uses and in judging if strict criteria are met in order to grant variances - such as your neighbor building too close to the road, higher than permitted, etc.

A special exception use is essentially a permitted use, but with possible conditions attached.  A variance applies to a use that is not permitted, but if hardships are shown by the applicant, the zoning hearing board can grant approval.  Since a special exception use is at its core a permitted use, it is hard to prove they should not be granted and rare they are rejected.

The zoning hearing board is independent of the governing body.  It has its own solicitor, who writes the opinions of cases the board hears.  Being an independent quasi-judicial body, it can be sued on appeal by land owners with standing, or the town itself, if either believes it erred in a decision.  Note that the supervisory body has no power over the zoning hearing board or its decisions whatsoever, except that it appoints the members.

Role of the Supervisors
The supervisors have the power to pass ordinances and amend zoning.  The MPC provides for the planning commission, if a town has one, to draft ordinances and make recommendations.  However, it is the supervisors who have the responsibility to choose the final language of ordinances and pass amendments.  The meetings at which discussion on proposed ordinances takes place are public and must be advertised.  During the drafting stage, special notice is not required beyond the monthly meeting schedule chosen at the beginning of the year.  When the supervisors plan to vote on adoption, amendments and ordinances must be advertised, to permit citizens to comment on them prior to the vote.

How to object at the zoning hearing board
If you become aware of a scheduled zoning hearing board hearing, and believe that the outcome of the hearing may negatively impact you or your property personally, you must act with deliberation.  Don't assume that you can go, listen to the proceedings, and a week later decide if you should take action.  If you plan to do this, don't even waste your time attending.  You must go to the hearing prepared to speak.  You need to show "standing" as an affected party.  You need to understand the zoning relief being requested, and be prepared to show why it does not meet the criteria for relief.  This takes research on your part.  You need a copy of the zoning ordinance, and you need to understand the criteria set forth by the MPC that the zoning hearing board will use to determine if relief is merited.

Your objective is to make a record of your specific objection.  Your objection as a minimum could be "it will be unsightly to my adjacent property," while a more informed one may be why you feel specific criteria in the MPC are not met.  The proceedings are recorded by a stenographer.  Most appeals of zoning hearing board decisions are based on only the record made at the hearing, and new evidence and testimony is not allowed. 

Recall from above that obtaining special exception approval is much easier than obtaining a variance, because a special exception is a permitted use whereas a variance is not.  I have personally argued as an objector at special exception hearings, and I can attest that it is a tough slog and more times than not is a failed exercise.  I have also objected to variances, and have been fairly successful in that regard.

To recap, if a zoning hearing is scheduled, do your research and attend prepared to make an argument - either a legal one or merely voice an objection.  You may want to bring an attorney, if you feel the relief is not deserved and your zoning hearing board will not be impartial.  Too many boards, even zoning hearing boards, do what they want to do and not what they should do.

Filing an appeal of a zoning hearing board decision
You attended the zoning hearing, and the board voted to approve a variance or special exception you don't believe should have been granted.  You must wait for the opinion to be published, and file an appeal to the Court of Common Pleas within 30 days.  Please note, if you are thinking about appealing a special exception approval, you may want to reconsider.  As an example, refer to the case of Elias Market in Bethlehem.  Residents fought a special exception approval there for five years and ultimately lost.  Basically, you are screwed if a special exception is approved, and it impacts you.

If you are appealing a business use, and the appeal process may hold back that business from developing in a timely manner, the business may request a bond be posted to cover its losses due to delay, in the event the business prevails.  However, if your appeal has merit, it is unlikely a judge will grant a bond.  I appealed a business use, and the owner threatened me that he would make such a demand.  However, he never did, because he knew the judge would not grant it.  Get legal advice on this point, based on your specific circumstance, prior to engaging in an appeal.  Don't be intimidated by threats that you will have to post a bond - don't be bullied.

Challenging the zoning ordinance
The MPC provides for various challenges to the zoning ordinance.  A curative amendment can be proposed, which would be heard by the supervisors.  A curative amendment can also be proposed by the supervisors.  This process is lengthy and expensive, since the proposal would have to be reviewed by the planning commission, and the party making the proposal would have to have counsel appear at several meetings.  Also, ultimately, the supervisory body determines the outcome.

If the procedure by which an amendment is passed is defective, an ordinance can be determined to be void ab initio - void from the beginning.  This is like kryptonite - the nuclear option.  How awesome is this?

Timing of procedural challenges
The "nuclear option" has a 30 day period in which to appeal, by the MPC and judicial code section 5571.1.  However, 5571.1 also provides for exceptions.  In a recent local case, Diefenderfer v. Palmer Twp Board of Supervisors, an Appellant filed his appeal more than a year after an ordinance was passed, and prevailed in having an ordinance amendment declared void.

Venue of procedural challenge - Do I have to sue my town?
If an appeal is filed in a timely manner, it can be handled within the town.  Once the 30 day period expires, it must be done in the Court of Common Pleas.  The only way to do this is by filing a lawsuit, and it has to be against the town since the town passed the challenged law.  So the answer in some cases is "yes, you have to sue the town."

Parties to a lawsuit against your town - the case of John Doe
You consulted an attorney, and he/she agrees you have a case and will represent you.  That's dandy, but you need parties who will put their names in print.  Not just anyone, but affected parties with standing will look the best case in court.  People start shrinking into corners, behind trees, because they are afraid of people saying stuff like "Hey, get a load of this.   John Doe sued our town!!!  The nerve of that asshat!"

The true asshat in this case is the speaker, not John.  John was the guy staring down the probability that if someone didn't act, his property value would sink, his water may disappear, and he may have trucks rumbling and roaring past his house several times a day.  John has been fearful for months that there is nothing to be done to protect him.  He heard a supervisor and a couple of residents say "Hey, let's just wait and see how it works out.  It can't be that bad, and conditions will be placed on them to protect you."  John tells himself and a couple friends in his kitchen privately "that sounds like horse crap" but they believe they haven't any alternatives.  John has heard others say "we'll fight them on truck traffic and property values and win at the special exception hearing."  John has read this blog, and knows that this is horse crap.

This man's BS alarm has been triggered, the same as John Doe's

At some point, John joined a few others who developed a case with legal merit to fight for their rights.  The person or small group that arranged the lawsuit to protect their property and the environment, and that of their fellow citizens, needs people with standing to sign on.  It also needs funding.  One person with solid standing is sufficient, but it looks better to the court with more and those people feel more united as a group believing and knowing that they all are standing up for what is right.  And it also proves Mr. Doe to be the upstanding citizen that he is, and not an asshat.  If people ignorant of the law and ignorant of what can and can't be accomplished without a lawsuit call the Plaintiff(s) "asshat" in private, so be it.

John is an asset

Funding a lawsuit against your town
Perhaps you have strong convictions that the challenge being made is correct, and realize the only way to accomplish the goal is to file a lawsuit, but you either don't have standing or aren't willing to stand up to those who will snicker privately that you are an asshat.  No worries - at the end of the day you aren't the one who is ignorant.  And you can show your support by anonymously making a donation to a most important cause - protecting your rights and property and that of your community.  Lawsuits do cost money.  I have led such group efforts, and arranged to take both one-time contributions and ongoing contributions without the donor's name becoming public.  With the advent of sites like gofundme, etc, this can now be done online in an even more private manner.

Sometimes you can anticipate winning a challenge at the zoning hearing board - usually in the case of variances.  Other times, you can anticipate losing a challenge at the zoning hearing board.  If you lose, you initially fight by suing the zoning hearing board in a lawsuit (appeal).  But if you don't have a case, you can count on losing your appeal too.

In more rare cases, filing a lawsuit against your town is the only option to protect your rights.  If you truly believe that your rights and those of your neighbors will be violated if you take no action, putting yourself down as a supporter either in print and/or with your wallet is the right thing to do.  Join the effort!

No comments:

Post a Comment