           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friends of Lackawanna;                          :
Joseph James and Mari May;                      :
Edward and Beverly Mizanty;                     :
and Katherine Spanish and Todd                  :
Spanish,                                        :
                        Appellants              :
                                                :
               v.                               :   No. 656 C.D. 2017
                                                :   Argued: April 10, 2018
Dunmore Borough Zoning Hearing                  :
Board and Dunmore Borough;                      :
Keystone Sanitary Landfill, Inc.;               :
F&L Realty Corporation; F&L                     :
Realty, Inc.; Keystone Company                  :
and Keystone Landfill, Inc.                     :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION
BY JUDGE SIMPSON                                FILED: May 7, 2018

                                       I. Introduction
               In this zoning appeal, the Friends of Lackawanna (FOL) and individual
citizens Joseph James and Mari May, Edward and Beverly Mizanty, and Katherine
and Todd Spanish (Individual Objectors) (collectively, Objectors) seek review of an
order of the Court of Common Pleas of Lackawanna County1 (trial court) dismissing
their appeal from a decision of the Dunmore Borough (Borough) Zoning Hearing
Board (Board). The Board denied Objectors’ appeal of the Borough’s Zoning


       1
        Following a full-bench disqualification and recusal by the trial court, the Administrative
Office of Pennsylvania Courts assigned a visiting senior judge to preside in this case. See
Reproduced Record (R.R.) at 2106a-09a.
Officer’s preliminary opinion that a landfill’s proposed upward expansion did not
violate the applicable building height limitations in the Borough’s Zoning Ordinance
(Zoning Ordinance). In particular, the Board determined Objectors lacked standing
to appeal the Board’s decision. Objectors appealed to the trial court, which agreed
with the Board on the standing issue and granted Appellees Keystone Sanitary
Landfill, Inc., F&L Realty Corporation, F&L Realty, Inc., Keystone Company, and
Keystone Landfill, Inc.’s (collectively, Keystone) motion to dismiss or strike
Objectors’ appeal.    Consequently, the trial court did not reach the merits of
Objectors’ appeal.


             In their brief to this Court, however, Objectors address both the
standing issue and the Board’s decision on the merits. In response, Keystone filed
an application for relief seeking to strike portions of Objectors’ brief pertaining to
the merits of their appeal. This Court granted Keystone’s application and entered an
order striking the portion of Objector’s brief, beginning at Heading B on page 44
and continuing through page 60, pertaining to the merits of the Board’s decision.
See Friends of Lackawanna v. Dunmore Borough Zoning Hearing Bd. (Pa. Cmwlth.,
No. 656 C.D. 2017, filed Oct. 16, 2017). Therefore, our review is limited to
determining whether the Board erred in concluding that Objectors lacked the
requisite standing to appeal the Board’s decision. Upon review, we reverse the order
of the trial court and remand for a decision on the merits of Objectors’ appeal.




                                  II. Background



                                          2
               Keystone owns and operates a 714-acre sanitary landfill partially
located in the Borough and partially located in neighboring Throop Borough. In the
Borough, Keystone’s property consists of 398 acres and is located in an M-1 (Light
Manufacturing) District. Notably, the landfill is an existing, permitted conditional
use in the M-1 District.         It is regulated by the Pennsylvania Department of
Environmental Protection (DEP) pursuant to the Municipal Waste Planning,
Recycling and Waste Reduction Act (Act 101)2 and the Solid Waste Management
Act (SWMA).3 It is currently operating under a Phase II Major Permit Modification.


               In 2014, Keystone submitted an application to DEP to utilize 216 acres,
within the pre-existing 714-acre permit area, as a Phase III Major Permit
Modification (Phase III).


               Objectors include FOL, a nonprofit corporation with a registered
business address in the Borough. FOL asserts that it has 51 members.


               Individual Objectors are members of FOL and live in the Swinick
Development. Their properties do not border the landfill site, but are located within
a quarter-mile to a half-mile from the landfill and approximately 3,110 and 4,473
feet from the proposed expansion area. An interstate highway and major highway
interchange separate Individual Objectors’ properties from the landfill site.




      2
          Act of July 28, 1988, P.L. 556, as amended, 53 P.S. §§4000.101- 4000.1904.

      3
          Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101- 6018.10003.



                                               3
                 In November 2014, Keystone filed a request for a preliminary opinion
from the Zoning Officer pursuant to Section 916.2 of the Municipalities Planning
Code (MPC), 53 P.S. §10916.2.4 Keystone requested an opinion as to whether the
proposed Phase III expansion would be in compliance with the Zoning Ordinance.
In particular, Keystone sought an opinion as to whether the Zoning Ordinance’s
building height requirements applied to the landfill.


                 The Zoning Officer issued an opinion that Phase III would be in
compliance with the Zoning Ordinance. See Reproduced Record (R.R.) at 120a-
31a.        Essentially, the Zoning Officer reasoned that the Zoning Ordinance’s
definitions of “building” and “building height” pertain to structures with a roof
supported by columns or walls. Id. at 130a. Keystone’s sanitary landfill, the Zoning
Officer observed, “lacks walls and columns, and of particular note there is no roof.”
Id. Thus, the Zoning Officer deemed the building height requirement inapplicable.


                 Objectors appealed to the Board and challenged the Zoning Officer’s
opinion. Before the Board, Objectors argued that the landfill constituted a structure
under the Zoning Ordinance.


                 At the first Board hearing, Keystone moved to dismiss Objectors’
appeal on the ground that they lack standing to appeal the Zoning Officer’s
preliminary opinion.          The Board deferred ruling on the motion and provided
Objectors an opportunity to present testimony and evidence on the standing issue.


        4
            Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329.


                                                  4
             Individual Objectors Joseph May, Edward Mizanty, and Katherine
Spanish, testified. Objector May testified he resided in the Swinick Development
since 1983, when he lived with his parents. In 2008, he inherited his mother’s house,
where he currently lives. May testified his residence is on Shirley Lane, less than a
quarter-mile from the landfill. May always smells a pungent odor coming from the
landfill. R.R. at 280a-81a. May also testified as to constant dust from the landfill in
the neighborhood, and seagull droppings all over his property. These nuisances
require constant maintenance. Id. at 286a-87a. May also observed Borough trash
trucks passing through his development, usually on the way to the landfill. Id. at
288a. However, May also observed dump trucks carrying waste entering and leaving
the Apex Waste Management transfer facility, a different facility unrelated to
Keystone. Id. at 305a-06a.


             Objector Edward Mizanty owns residential property on Reeves Street
in the Swinick Development. He and his family lived there since 1989. Id. at 309a.
Mizanty testified his property is approximately a quarter-mile from the landfill. Id.
Mizanty can see the landfill from his back deck and dining room window. Id. at
310a. He testified that the landfill “went vertical over the years.” Id. In addition to
smelling the landfill while walking around the development, Mizanty can also smell
the landfill from the house. Id. at 312a. He described the smell as a “pungent smell,
garbage, rotting garbage.” Id. The smell is worse during the warmer months,
especially the summer. Id. The closer he walks toward the landfill, the stronger the
odor becomes. Id. at 313a. Mizanty also testified he can see trash trucks driving
through the development. Id. at 314a. However, Mizanty was unaware of the




                                          5
presence of the Apex Waste Management transfer facility, which is located closer to
his property than the landfill. Id. at 319a.


             Objector Katherine Spanish owns residential property located on West
Swinick Drive in the Swinick Development. Id. at 411a. Spanish grew up in that
house; she now lives there with her husband and children. Id. at 412a. Spanish
estimated that her property is about a half-mile from the landfill. Id. at 413a. When
Spanish purchased the home from her parents in 2010, her understanding was that
the landfill had 10 years remaining in its life span. Id. at 413a-14a. Spanish testified
she could smell the landfill when she moved into the house in 2010. Id. at 414a-17a.
It is a sour pungent smell that gets worse during the warmer months. Id. Spanish’s
children attend a daycare that is even closer to the landfill. Id. Spanish also
expressed concerns over local newspaper reports of leachate leaking from the
landfill and the possibility of subsurface mine fires and landslides. Id. at 418a.
Spanish also testified she observed trash trucks in her neighborhood on the way to
the landfill. Id. at 419a. Spanish is also an FOL board member. Id.


             With regard to its standing as an organization, FOL presented testimony
from Patrick Clark (FOL Witness). He identified FOL as a nonprofit entity formed
in October 2014 representing area citizens opposed to the expansion of Keystone’s
landfill. Id. at 324a. FOL Witness expressed concerns about the Phase III expansion
regarding health and environmental issues. Id. at 327a. FOL requested air quality
tests from the Department of Health that were not performed. Id. at 328a. FOL’s
concerns include harm from leachate leakage into the groundwater and air quality.
FOL Witness testified the proposed expansion would be detrimental to the



                                           6
economics of the area and the Borough’s reputation. In short, FOL Witness believed
people and businesses would not want to move to the area if the landfill expanded.
An industrial park close to the landfill is nearly vacant. Id. at 328a.


               FOL Witness further testified that FOL met with Senator Robert Casey,
State Representative Frank A. Farina and State Senator John Blake regarding the
proposed expansion. Id. at 333a. FOL also attends DEP meetings and reviews
documents and records obtained from DEP regarding the landfill. Id. at 334a. These
documents identify the Swinick Development as an area to be monitored for odors.
Id. at 336a.


               In response, Keystone presented testimony and documentary evidence,
including expert testimony from a professional engineer, Albert J. Magnotta, III. He
is Keystone’s project manager. R.R. at 442a. Magnotta calculated the distances of
Individual Objectors’ homes from the Phase III expansion area as follows: May
Property – 3,110 feet; Mizanty Property – 3,257 feet; and, Spanish Property – 4,473
feet. See R.R. at 1313a.


               In addition, Keystone presented testimony from Benjamin Allen, a
licensed professional civil and environmental engineer. Allen testified that Objector
May could not see the landfill from his home and that the property he identified was
an overburden pile in a mining operation adjacent to the landfill.        Id. at 488a.
Keystone also presented evidence that the majority of home construction in the
Swinick Development occurred during operation of Keystone’s landfill. Keystone




                                           7
argued this residential growth, in the neighborhood where Individual Objectors
reside, belied the negative impacts they claimed.


             Ultimately, the Board decided that Objectors lacked standing to file the
appeal. See R.R. at 61a-70a. In its decision, the Board observed: (1) Individual
Objectors do not live on or own property abutting the landfill, and they did not
establish harm to any pecuniary interest; (2) Individual Objectors’ concerns do not
rise to the level of a substantial, direct and immediate interest required for standing
to challenge the Zoning Officer’s determination; (3) aesthetic concerns cannot be
equated with a substantial interest; (4) FOL neither owns nor leases any property in
the Borough, and it has no financial investments in the Borough; (5) FOL is an
organization specifically created to oppose and prevent the Phase III expansion; (6)
FOL failed to establish any particular interest different from those of all citizens in
obedience to the law; and, (7) because Individual Objectors failed to establish
standing, FOL’s derivative standing argument also fails.


             In addition to determining Objectors lacked standing, the Board
affirmed the Zoning Officer’s opinion that the Zoning Ordinance did not impose a
building height requirement on a landfill which is neither a “building” nor a
“structure” subject to the Zoning Ordinance’s building height restrictions. See R.R.
at 68a-69a. Consequently, the Board denied Objectors’ appeal by a 5-0 vote. Id. at
70a.




                                          8
                Objectors appealed to the trial court. They filed a 53-page notice of
land use appeal containing 377 paragraphs. Id. at 7a-59a. This included 174
paragraphs of background. Id. at 7a-29a.


                Keystone filed a motion to dismiss or strike/quash the appeal. Keystone
argued the Board properly determined Objectors lacked standing to maintain the
appeal, and Objectors’ appeal did not meet the conciseness requirements of the
MPC.


                The trial court did not take any additional evidence. In April 2017,
following oral argument, the trial court issued an opinion and order dismissing
Objectors’ appeal. The trial court rejected Keystone’s argument that Objectors
failed to file a concise statement of appeal as required by Section 1003-A(a) of the
MPC, 53 P.S. §11003-A(a).5 The court noted that Objectors’ appeal, despite being
voluminous, could be distilled.


                However, the trial court agreed with the Board that Objectors lacked
standing. Tr. Ct., Slip Op., 4/24/17, at 6. In particular, the trial court observed that
FOL, as an organization, failed to demonstrate any interest aside from the abstract
interest generally shared by the public. Id. To that end, an organization’s purpose,
by itself, is not enough to confer standing. Id.


                In addition, the trial court determined Individual Objectors failed to
demonstrate a direct, immediate and substantial interest in the landfill expansion.


       5
           Added by the Act of December 21, 1988, P.L. 1329.


                                               9
The trial court noted Individual Objectors lived at least a half-mile away from the
proposed expansion area, and they were separated from it by a major highway
interchange. Notably, the trial court acknowledged that May, Mizanty and Spanish
each complained of odors. Tr. Ct., Slip Op., at 7. In addition, May complained of
dust and bird droppings. Id.


               The trial court then reasoned that this case was factually similar to
Armstead v. Zoning Board of Adjustment, 115 A.3d 390 (Pa. Cmwlth. 2015). In
Armstead, the trial court determined that both individual residents, and an
organization formed to oppose illegal billboards in the City of Philadelphia, lacked
standing to challenge the zoning board’s grant of a variance to modify an existing
sign from vinyl to digital electronic. The nearest objector in Armstead lived a block
and a half from the sign. We determined such a distance lacked sufficient proximity
to confer standing. Citing Armstead, the trial court here reasoned the Board did not
err or abuse its discretion in holding that Objectors lacked standing to appeal the
Zoning Officer’s preliminary opinion. Therefore, the trial court granted Keystone’s
motion to dismiss or strike. Objectors appeal.6
                                          III. Issues
               Objectors contend that Individual Objectors, who are FOL members,
have standing to challenge the Zoning Officer’s decision that Keystone’s landfill can
expand upward by 165 feet, adding 46 years to the life of the landfill, without regard

       6
         Appellate review of a decision of a zoning hearing board, where the trial court does not
take any additional evidence, is limited to determining whether the board abused its discretion or
committed an error of law. Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653
(Pa. 2009). An abuse of discretion occurs where the board’s findings are not supported by
substantial evidence. Id. Substantial evidence is such relevant evidence that a reasonable person
would accept as adequate to support the conclusion reached. Id.



                                               10
to the height limitations in the Zoning Ordinance. Individual Objectors live in close
proximity to Keystone’s landfill and can see and smell the landfill from their homes.
Also, as a direct result of their proximity to the landfill, they must regularly clean
dust and seagull droppings from their homes. Objectors further assert FOL has
standing in its own right, and as a representative of Individual Objectors, to challenge
the Zoning Officer’s preliminary opinion.


             For its part, Keystone argues that Objectors’ 53-page, 377-paragraph
notice of land use appeal should be dismissed for noncompliance with the
conciseness requirement in Section 1003-A(a) of the MPC, 53 P.S. §11003-A(a).


                                   IV. Discussion
                                     A. Standing
                                    1. Argument
                              a. Individual Objectors
             Objectors contend the Board and the trial court erred in determining
they lacked standing to appeal the Zoning Officer’s opinion. Individual Objectors
assert that they live in close proximity to the landfill and that they can see and smell
it from their homes. In addition, they are constantly cleaning dust and seagull
droppings from their properties. Objectors claim these distinct harms provide them
with a substantial, direct and immediate interest in the Zoning Officer’s preliminary
opinion. The planned expansion will add 165 feet to the height of the landfill and 46
years to the life of the landfill and will significantly increase and prolong these
negative impacts.




                                          11
             Objectors argue standing is a question of law subject to this Court’s de
novo review. Fumo v. City of Phila., 972 A.2d 487 (Pa. 2009). To enjoy standing,
a person or party must show aggrievement by establishing a substantial, direct and
immediate interest in the outcome of the litigation. Robinson Twp., Wash. Cty. v.
Commonwealth (Robinson II), 83 A.3d 901 (Pa. 2013). In order to be aggrieved, a
person or party must have a direct interest that is adversely affected by the
challenged action. D.E. Street, Inc. v. Zoning Hearing Bd. of Borough of W. York,
519 A.2d 1093 (Pa. Cmwlth. 1987). An objector could have, by reason of proximity
in location, sufficient interest to intervene in zoning litigation. Active Amusement,
Inc. v. Zoning Bd. of Adjustment, 479 A.2d 697 (Pa. Cmwlth. 1984).


             A substantial interest is one in which there is some discernable adverse
effect to some interest other than an abstract interest that all citizens have.
Laughman v. Zoning Hearing Bd. of Newberry Twp., 964 A.2d 19 (Pa. Cmwlth.
2009). A direct interest requires a showing that the matter complained of causes
harm to the party’s interest, although not necessarily a pecuniary interest. Id. An
immediate interest requires that the interest be something more than a remote
consequence. Rather, it centers on a causal nexus between the action complained of
and the injury to the party challenging it. Id. In short, to meet these three
requirements, a party must demonstrate that the challenged action personally harms
his interest in a way that is greater than that of another citizen. Armstead.


             The type of land use, Objectors further assert, relates to how the impacts
from the use emanate off the property and affect other landowners’ use and
enjoyment of their property. For example, in Grant v. Zoning Hearing Board of



                                          12
Township of Penn, 776 A.2d 356 (Pa. Cmwlth. 2001), this Court determined that
intervening property owners who lived approximately 6,600 feet from a proposed
natural gas-powered electric generating facility, had a direct, immediate, pecuniary
and substantial interest in a zoning hearing board proceeding. To that end, we noted
the intervenors would be affected by the wind and sound emanating from the
proposed facility.


             Additionally, in Robinson Township, Washington County v.
Commonwealth (Robinson I), 52 A.3d 463 (Pa. Cmwlth. 2012), aff’d in part and
rev’d in part, 83 A.3d 901 (Pa. 2013), we determined that elected officials who were
also township landowners and residents had standing to challenge a state statute
allowing oil and gas operations in all zoning districts. Applying Robinson I here,
Objectors argue that denying their right to challenge the Zoning Officer’s opinion
denied them the ability to protect their property rights in response to a proposed
landfill expansion that would negatively impact the use and enjoyment of their land
for decades to come.


             In sum, Objectors assert Individual Objectors have standing. The May,
Mizanty and Spanish families all live in close proximity to the landfill and suffer
distinct impacts from landfill operations. They testified they can smell odors of
rotting garbage from their properties. Objector May also complained of bird
droppings and dust. All three also reported seeing trash trucks regularly driving
through their neighborhood on the way to the landfill. These combined harms
adversely affect the use and enjoyment of their properties. The proposed expansion
would extend these adverse effects for decades.



                                        13
                                      b. FOL
             Objectors further argue FOL has derivative standing as a representative
of its members. Individual Objectors are FOL members. Citing Robinson II,
Objectors assert that FOL, as an organization, has derivate standing as a
representative of its members to bring a cause of action despite the absence of an
injury to the organization. To have derivative standing, an organization must
establish that at least one of its members is suffering immediate or threatened injury
as a result of the challenged action. Pa. Med. Soc’y v. Dep’t of Pub. Welfare, 39
A.3d 267 (Pa. 2012).


             Objectors also cite Society Hill Civic Association v. Philadelphia Board
of License and Inspection Review, 905 A.2d 579 (Pa. Cmwlth. 2006) and Pittsburgh
Trust for Cultural Resources v. Zoning Board of Adjustment of City of Pittsburgh,
604 A.2d 298 (Pa. Cmwlth. 1992), in support of their position that FOL has its own
standing to appeal. In Society Hill, we determined that a neighborhood organization
whose members directly negotiated with the owner and developer of a modern high-
rise tower to preserve the facades of historic structures located on the development
site, had standing to appeal zoning approval of a plan to replace the marble exterior
cornices with fiberglass cornices. In Pittsburgh Trust, this Court determined that a
property owners’ association representing approximately 60 owners and tenants in
the Penn-Liberty cultural district had standing to challenge the zoning action on
behalf its members who were suffering immediate or imminent injury because of the
disputed action.




                                         14
             Here, Objectors assert FOL engages in extensive public education and
advocacy efforts on behalf of its members in opposition to the proposed Phase III
expansion. In addition to its involvement in the DEP proceedings, FOL participated
in the negotiation of the Host Municipality Fee Agreement, which referenced the
zoning issues discussed by the Zoning Officer in his opinion. For these reasons,
Objectors assert FOL has standing, in its own right, to appeal.


                            c. DEP Permit Proceedings
             In their reply brief, Objectors cite an Environmental Hearing Board
(EHB) decision finding FOL had standing to challenge Keystone’s solid waste
management permit renewal. The EHB found that odors from the landfill negatively
impact persons living near the landfill, including Individual Objectors May, Mizanty
and Spanish. See Friends of Lackawanna v. Dep’t of Envtl. Prot. (EHB, No. 2015-
063-L, filed Nov. 8, 2017). In Finding of Fact (F.F.) No. 133, the EHB found that
DEP received hundreds of odor complaints from people who live near the landfill.
However, DEP never found Keystone in violation for the odors. F.F. No. 135. DEP
also tested three areas for high levels of methane; although methane itself is odorless,
these areas were potential sources of odors. F.F. No. 136. No violations were noted.
Id.


             The EHB also found that birds inevitably congregate at the landfill.
F.F. No. 179. The presence of an unnatural congregation of birds at or near the
landfill is a nuisance to local citizens, including Individual Objectors, which cannot
be eliminated. F.F. No. 180. Keystone is required by its Nuisance Minimization
and Control Plan to reduce the tendency of the landfill to attract birds. F.F. No. 181.



                                          15
Pursuant to a contract with Keystone, the U.S. Department of Agriculture manages
the bird population at the landfill. F.F. No. 182. The EHB ultimately determined
that Keystone effectively manages the bird population. F.F. No. 183.


             The EHB also found that FOL had standing to appeal the renewal of
Keystone’s DEP permit on the ground that Individual Objectors May, Mizanty and
Spanish are adversely affected by the noxious odors that regularly emanate from the
landfill. See EHB, Slip Op., at 25-33. The EHB reasoned that Individual Objectors’
interest is substantial, direct and immediate because their daily lives are adversely
affected by the noxious odors; this interest surpasses the general interest of all
citizens in Keystone’s compliance with the law. Id. at 30.


             Nevertheless, we recognize that the EHB proceeding, which involved
standing under state environmental laws, is a separate proceeding that does not
appear in the record. Therefore, we will not comment on it further.




                                     2. Analysis
                        a. Individual Objectors’ Standing
             As noted above, the Board determined Individual Objectors lacked
standing to appeal the Zoning Officer’s opinion. The Board reasoned that Objectors’
concerns did not rise to the level of a direct, immediate and substantial interest. Bd.
Op., 9/28/15, at 5; R.R. at 66a. Citing our decision in Miller v. Upper Allen
Township Zoning Hearing Board, 535 A.2d 1195 (Pa. Cmwlth. 1987), the Board
reasoned that Objectors’ aesthetic concerns related to negative impacts of the landfill



                                          16
and its proposed expansion could not be equated with a substantial interest in the
zoning approval of the proposed expansion.


             We respectfully disagree. Individual Objectors all testified they own
residential property within approximately a quarter-mile to a half-mile from the
landfill. Notably, the Board and the trial court acknowledged Individual Objectors’
complaints regarding pungent odors of rotting garbage, dust, bird droppings, and
truck traffic directly affecting their properties.    These discernible effects on
Individual Objectors’ use and enjoyment of their properties cannot be considered
merely aesthetic concerns similar to those of objectors in cases such as Armstead or
Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009), regarding
objections to proposed electronic or illuminated billboards.


             In short, the odors, dust, bird droppings and truck traffic all emanate
from the very large landfill use.     Rather than constituting mere nuisances or
annoyances, these harms have discernable adverse effects on Individual Objectors
and their families raising legitimate concerns about air quality and health. These
harms are directly related to the landfill use and exceed the concerns of the general
public. As such, Individual Objectors have a substantial, direct and immediate
interest in the Zoning Officer’s opinion approving the landfill’s proposed expansion,
which would extend the operation of the landfill for another 46 years. See In re
Broad Mountain Dev. Co., LLC., 17 A.3d 434 (Pa. Cmwlth. 2011) (objectors, who
lived within a half-mile of a proposed windfarm consisting of 27 wind turbines,
presented sufficient evidence to establish standing to appeal zoning officer’s
issuance of a permit for the project; because of their close proximity to the wind



                                         17
turbines, objectors would experience constant noise and potential dangers from ice
throwing and shedding in freezing conditions); Grant (in addition to their procedural
participation in the proceedings before the zoning hearing board, intervening
property owners living within 6,600 feet of a proposed electric generating facility,
who would be subject to wind and noise from the plant, had standing to challenge
the grant of a special exception for the generating facility).


             Further, we reject the assertions by Keystone and the Board, that Broad
Mountain and Grant are distinguishable. They argue the present case differs from
Broad Mountain and Grant because Keystone’s landfill use predated Objectors’
purchases of their properties. Here, however, Objectors challenge the proposed
Phase III expansion. The proposed expansion would, at the least, continue, if not
exacerbate, the present harm to Individual Objectors and their properties for another
46 years. As such, Individual Objectors could suffer considerable harm by approval
of the expansion.


             Keystone and the Board also attempt to distinguish Grant on the basis
that it involved procedural rather than substantive standing. In Grant, we determined
that the intervening property owners, despite not filing a formal entry of appearance,
established procedural standing by participating in the board hearing. However, we
also recognized that the intervenors had a “direct, immediate, pecuniary and
substantial interest” in the zoning matter because their properties, located with 6,600
feet of the proposed plant, would be subject to wind and sound from the plant. See
Grant, 776 A.2d at 359. Thus, the intervenors in Grant, like Individual Objectors




                                          18
here, had standing based on clearly discernable harm directly related to the zoning
proceeding.


                                 b. FOL’s Standing
              Having determined that Individual Objectors, who are FOL members,
established standing, we also hold that FOL has derivative standing on behalf of its
members. In Robinson II, the Pennsylvania Supreme Court explained:

                     Under Pennsylvania law, an association has
              standing as representative of its members to bring a cause
              of action even in the absence of injury to itself, if the
              association alleges that at least one of its members is
              suffering immediate or threated injury as a result of the
              action challenged.

Robinson II, 83 A.3d at 922 (citing Pa. Med. Soc’y). Because FOL has standing as
a representative of its members, we need not determine whether FOL also has
standing, in its own right, to appeal the Zoning Officer’s preliminary opinion.




                                B. Notice of Appeal
                                    1. Argument
              Keystone argues that Objectors’ 53-page, 377-paragraph notice of land
use appeal should be dismissed for noncompliance with Section 1003-A(a) of the
MPC, which provides that land use appeals should include an appeal notice “which
concisely sets forth the ground on which the appellant relies.” 53 P.S. §11003-A(a)
(emphasis added).      Keystone asserts Objectors’ excessive notice of appeal
deliberately violates Section 1003-A(a) and therefore should be dismissed. As

                                         19
support for its position, Keystone cites Tucker v. R.M. Tours, 939 A.2d 343 (Pa.
Super. 2007), where the Superior Court held that the appellants waived their issues
on appeal by filing a Pa. R.A.P. 1925(b) concise statement of the errors complained
of on appeal, which consisted of 16 pages with 76 paragraphs, plus exhibits. The
Court noted that the appellants’ voluminous number of lengthy issues created
confusion for the trial court. Such conduct, the Superior Court reasoned, breached
the appellants’ duty of good faith and fair dealing, and thus constituted misconduct
designed to undermine the Rules of Appellate Procedure.


             In response, Objectors assert their notice of appeal includes a “Grounds
for Appeal,” a section which clearly and concisely sets forth the 10 grounds on which
their appeal is based. See R.R. at 29a-30a. Objectors argue there is nothing in the
MPC which prohibits an appellant from providing factual detail in support of its
grounds for appeal. To that end, Objectors claim there are no cases holding that a
land use appeal ran afoul of Section 1003-A(a) by being too detailed.


             Objectors further argue that the Rules of Appellate Procedure do not
govern practice in common pleas courts. Therefore, Tucker is inapplicable.
             Further, Pennsylvania is a fact-pleading jurisdiction. Sevin v. Kelshaw,
611 A.2d 1232 (Pa. Super. 1992). The purpose of fact pleading is to give a defendant
not only notice of a claim, but the factual basis upon which it rests. Id. Like a
pleading, Objectors assert, a notice of land use appeal initiates a proceeding in a
common pleas court. Its purpose is to define the issues and provide the appellee
with notice of the grounds on which the appellant’s claims rest.




                                         20
                                      2. Analysis
             We agree with the trial court that although Objectors’ notice of land use
appeal is voluminous, it is distillable. Tr. Ct., Slip Op., at 4. The trial court observed
that “although there is precedent for dismissing an insufficient or vague notice of
appeal, there has been no authority presented supporting a dismissal of a zoning
appeal for too detailed a notice.” Id. Therefore, the trial court declined to dismiss
Objectors’ appeal on such grounds.         Id.   Given the comprehensive effort by
Objectors in the proceedings before the Board, we detect no bad faith or misconduct
by Objectors in presenting their detailed notice of appeal to the trial court.


                                    V. Conclusion
             Having determined the Board erred in holding that Objectors lacked
standing to appeal the Zoning Officer’s preliminary opinion, we reverse the order of
the trial court granting Keystone’s motion to dismiss or strike Objectors appeal.
Consequently, we remand this case to the trial court for a decision on the merits of
Objectors’ appeal.



                                            ROBERT SIMPSON, Judge




                                           21
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Friends of Lackawanna;                :
Joseph James and Mari May;            :
Edward and Beverly Mizanty;           :
and Katherine Spanish and Todd        :
Spanish,                              :
                        Appellants    :
                                      :
             v.                       :   No. 656 C.D. 2017
                                      :
Dunmore Borough Zoning Hearing        :
Board and Dunmore Borough;            :
Keystone Sanitary Landfill, Inc.;     :
F&L Realty Corporation; F&L           :
Realty, Inc.; Keystone Company        :
and Keystone Landfill, Inc.           :


                                    ORDER

             AND NOW, this 7th day of May, 2018, the order of the Court of
Common Pleas of Lackawanna County is REVERSED, and this case is
REMANDED for further proceedings consistent with the foregoing opinion.
Jurisdiction is relinquished.




                                     ROBERT SIMPSON, Judge
