Court dismisses appeal of those opposed to South Union townhouses
The state Commonwealth Court denied an appeal filed by a group of South Union Township residents who are against a plan to construct multifamily townhouses.
In an opinion issued this week, Senior Judge James Gardner Colins wrote that the people who objected to the construction waited too long to hop into the legal fray.
Residents Phoebe Marano, William and Jennie McNatt; Paul and Abigail Ruane; Phillip Jones and William and Dolores Polito asked Fayette County President Judge John F. Wagner Jr. last year to reconsider his decision allowing the George Family Limited Partnership to build a total of five, eight-unit multiple-family dwellings near the intersection of Mulberry and Walnut streets in Hopwood.
Wagner denied the motion, finding the group waited too long to try to intervene, and that even if they had done so in a timely manner, they had no evidence to offer that would have changed the outcome of the case.
The matter was before Wagner because the township’s zoning hearing board had twice voted against allowing the partnership a special exception to build in an area that is zoned residential. During both of the hearings, residents showed up to object to the construction.
The partnership’s attorney appealed both times.
The first time, in 2011, Wagner found that for the plan to go through, the partnership had to apply for and receive a sewage module permit from the state Department of Environmental Protection. When that documentation came through, the partnership again took the matter to the zoning hearing board, which again denied the request for a special exception — paving the way for another appeal to Fayette County Court.
The partnership again appealed, and in May 2013, Wagner reversed the board again, finding members abused their discretion and erred as a matter of law.
The judge granted the application for the special exception. Several weeks after Wagner’s decision, the township residents who objected to the construction filed a petition asking the judge to reconsider his decision.
When he denied their motion to be heard on the matter, they appealed, arguing that the zoning board should have given them notice of its decision so they could have filed court paperwork with their position at that time. Colins wrote that because there was no evidence that the group who objected to the project filed their addresses with the zoning board, the board did not have to notify them of the decision.
Additionally, the court found that there was evidence that the group knew of the board’s decision.
“This proceeding has traversed from the board, to the trial court, and back again, and at no point along the way did the prospective intervenors take the steps available to them to become a participant; they cannot now attempt to do so because they do not like where the journey has ended,” wrote Colins.