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Carbon judge's decision upheld

Published January 10. 2011 05:00PM

A state court has affirmed the decision of the Carbon County court in denying the petition of 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.

A three-judge panel of Commonwealth Court affirmed the decision of Senior Judge Richard W. Webb in the matter.

Webb denied the petition of Our Lady of Mount Carmel Inc. (OLMC), a group of former parishioners, to intervene in the zoning matter. Webb also struck the OLMC's Notice of Intervention. Webb's order was issued on April 26.

The state court said the only matter before it was whether Webb erred, as a matter of law, in striking the Notice of Intervention and denying the petition to intervene. The state court said he did not.

On Oct. 7, 2008, St. Francis of Assisi Church, and the Rev. Anthony M. Drouncheck, pastor, applied to the Nesquehoning Zoning Office for a permit to construct a handicap ramp and to extend the stairway to the church. The St. Francis church replaced Our Lady of Mount Carmel, Sacred Heart and Immaculate Conception churches, which were closed by the Diocese of Allentown. The new church was established in the former Sacred Heart Church.

On April 27, 2009, the OLMC Inc., a group of former parishioners of Our Lady of Mount Carmel Church, filed a Notice of Intervention. St. Francis and Rev. Drouncheck filed a motion to strike the notice. On July 27, 2009, OLMC Inc. and members Joseph Fauzio and Donato Farole, filed a petition to intervene.

Webb held a hearing on March 22 and granted the motion to strike and denied the petition to intervene.

The state court's opinion notes that the OLMC is also involved in another suit against the Vatican for closing the church and consolidating it with St. Francis. One of the arguments in that suit is that OLMC's church had handicap accessibility and St. Francis did not. Thus, if St. Francis obtains a permit to build the intended ramp, OLMC can no longer make the same argument in its appeal. Further, the state court wrote, "now that the members of OLMC are members of St. Francis' parish, their dues will be used to pay for the ramp, assuming St. Francis obtains the permit and does not receive donations to pay for the ramp."

In rejecting the appeal of the OLMC, the state court quotes from the state Municipalities Planning Code, which states an appeal from land use must be by the municipality and any owner or tenant of property directly involved in the action for a permit. The state court ruled, "Clearly, OLMC Inc. is not a municipality or owner or tenant of the property involved in the action, i.e., St. Francis." Adding, "Thus, the trial court did not abuse its discretion or err as a matter of law in striking the Notice of Intervention."

Concerning the petition to intervene filed by OLMC, the state court wrote, "Clearly, OLMC has no 'legally enforceable interest' in St. Francis' permit application to build a handicap ramp. OLMC's issue with the Vatican over closing its church is a separate and distinct matter from the zoning issue before the Court."

The state court adds, "In addition, OLMC's issue is a church matter, not a municipal matter. Moreover, the fact that dues may be directed toward funding the ramp is not a sufficient financial interest to create standing to intervene, as the payment of dues is not dependent on the outcome of this matter. Thus, this Court holds that the trial court did not abuse its discretion or commit an error of law by denying OLMC"s petition to intervene."

The ruling was issued by judges Renee Cohn Jubelirer, Mary Hannah Leavitt and Johnny J. Butler.

Last week the Vatican denied the appeal of the OLMC in the matter of closing its church. A story on that decision appeared on page one of the TIMES NEWS on Friday, Jan. 7.

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