22 A.3d 253
Pa. Commw. Ct.2011Background
- Thomas J. Bozek objected to a wind energy project in Fayette County and challenged ZHB decisions after remand and subsequent trial-court relief.
- ZHB denied all of Applicant's special exceptions and variances; Applicant appealed to the trial court.
- Trial court remanded to ZHB to grant required exceptions and impose protective conditions; ZHB partially granted variances and conditions, denying some requests.
- Applicant's post-remand appeal to the trial court resulted in a merits order favoring Applicant; Objector appealed to this Court.
- The trial court later ordered Objector to post a $250,000 bond as a condition of continuing the appeal; Objector did not appeal or post the bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bozek’s merits appeal is quashed for failure to post bond | Bozek did not post bond; appeal should be quashed | Bond order is proper as condition to proceed with merits appeal | Yes; objector’s merits appeal quashed for failure to post bond |
| Whether Takacs applies retroactively to determine bond order finality | Takacs controls; bond order final and appealable | Takacs should apply here as well | Takacs applies; bond order treated as final and appealable |
| Whether Objector could challenge the bond order itself | Objector could appeal the bond order under Rickert and related cases | Objector did not appeal bond order, so cannot review propriety | Objector could not review bond order because he did not appeal it |
| Whether trial court had authority to impose bond under MPC § 1003-A(d) and retroactivity concerns | Bond authority valid; retroactive application permissible | Takacs limits retroactivity and challenges bond authority | Authority and retroactivity resolved in favor of bond validity and retroactive application |
Key Cases Cited
- Takacs v. Indian Lake Borough, Zoning Hearing Board, 18 A.3d 354 (Pa. Cmwlth. 2011) (bond order final when appeal sought to review land-use decision; retroactive application)
- Rickert v. Latimore Township, 960 A.2d 912 (Pa.Cmwlth.2008) (appeal from bond order proper to challenge propriety)
- C.A.N.D.L.E. v. Bd. of Comm'rs of Fayette Cnty., 93 Pa.Cmwlth. 547 (1985) (bond orders; reviewability)
- In re Farmland Indus., Inc., 109 Pa.Cmwlth. 304 (1987) (bond-order review; appellate procedure)
- Collis v. Zoning Hearing Bd. of City of Wilkes-Barre, 77 Pa.Cmwlth. 4 (1983) (appeal from bond order authority)