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Former parishioners' petition to intervene is denied by court

Published April 28. 2010 05:00PM

A petition filed in Carbon County court by former parishioners of Our Lady of Mount Carmel Catholic Church of Nesquehoning to intervene in a pending zoning appeal filed by the new Catholic Church in the borough was denied this week in an order and opinion handed down by a county judge.

The group wanted to intervene in the appeal by St. Francis of Assisi Church, which was formed when the Diocese of Allentown closed the three Catholic churches in Nesquehoning, of a borough zoning board's denial for a variance filed by the church. The church wants to install a handicap ramp and extend the front stairs of the church, which is located at 140 E. Mill St., the former site of the Immaculate Conception Church.

The zoning board denied the variance request and the diocese has appealed that denial to the county court.

When the diocese closed the churches a group of former parishioners at Our Lady of Mount Carmel formed an Our Lady of Mount Carmel Inc. (OLMC). They are challenging the closing of their church and have filed an appeal with the Vatican in Rome. That appeal in pending.

Senior Judge Richard W. Webb held a hearing on the petition to intervene on March 22 and issued his ruling this week.

Webb noted at the start of his discussion on the petition that his decision does not in any way address the pending appeal by the diocese in the zoning matter.

Webb said his decision is relative to procedural questions, which arose by the desire of third parties to be heard in the zoning dispute. At the hearing in March, two former parishioners testified - Joseph Fauzio and Donato Farole. Webb said the OLMC, Fauzio and Farole, attempted to gain standing in the pending appeal and advanced three contentions. Webb addressed those three contentions in his order.

Webb said the first contention was the "notice of intervention" filed under the state's municipal planning code. Webb said the code provides that within 30 days of the filing of a land use appeal, the municipality and any owner or tenant of property directly involved in the action can file for intervention.

He said in the instant case the OLMC Inc., Fauzio or Farole, don't own or rent any property directly involved in the pending zoning appeal. He wrote that the OLMC and two former parishioners "does not have a direct, immediate, and/or substantial pecuniary interest in this matter." He said, "as such, the Notice of Intervention must be denied."

The second issue is the Petition to Intervene filed by OLMC, Fauzio and Farole.

After quoting from the state code, Webb writes, "The party seeking to intervene must have a legally enforceable interest." He adds, "The only interest or cause of action Intervenors (OLMC) has espoused is against the diocese for closing their former church."

Webb continues, "This is a purely ecclesiastical matter that neither this Court nor any civil court may address or properly entertain, and thus is not a legally enforceable interest."

He said there is no evidence in the record of OLMC, Fauzio or Farole "owns property in the vicinity of the church or meets any of the standing requirements to satisfy" the state code.

Concerning the final contention, Webb said OLMC and the two men have attempted to allege that they are entitled to automatic standing, because OLMC was permitted to intervene at the zoning hearing board and should therefore be permitted to intervene in the instant matter before the court. Webb writes, "This is not the law, however. The fact that potential intervenors may have had a right to intervene at the zoning hearing board level does not give the potential intervenors the right to intervene at the trial court level."

Webb concludes his opinion by stating, "For the foregoing reasons, this Court finds that Intervenors have not met their Burden of Proof with respect to Intervention and that, therefore, the Notice of Intervention must be stricken and the Petition to Intervene must be denied." Webb further states, 'While this Court is sympathetic to the feelings of the former members of Our Lady of Mount Carmel, we are required to resolve this case in accordance with the Rule of Law."

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