# Scott v. City of Philadelphia, Zoning Board of Adjustment

> Supreme Court of Pennsylvania · October 29, 2015 · 633 Pa. 517

URL: https://www.frixlaw.com/law-library/cases/3150759

## Case

- **Full name:** John SCOTT, v. CITY OF PHILADELPHIA, ZONING BOARD OF ADJUSTMENT and FT Holdings L.P., Appeal of FT Holdings L.P.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 29, 2015
- **Citations:** 633 Pa. 517; 126 A.3d 938; 2015 Pa. LEXIS 2510; 2015 WL 6675465
- **Precedential status:** Published
- **Opinion:** Opinion by Baer
- **Judges:** Saylor, Eakin, Baer, Todd, Stevens
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3150759

## Opinion text

[J-34-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

JOHN SCOTT, : No. 57 EAP 2014
:
: Appeal from the Order of the
v. : Commonwealth Court entered on
: 3/21/2014 at No. 154 CD 2013
: (reargument denied 5/8/2014) reversing
CITY OF PHILADELPHIA, ZONING : and remanding the order of the Court of
BOARD OF ADJUSTMENT AND FT : Common Pleas, Civil Division,
HOLDINGS L.P., : Philadelphia County, dated 1/09/2013 at
: No. 02091, June Term, 2012
:
APPEAL OF: FT HOLDINGS L.P. : 88 A.3d 1071
:
: ARGUED: May 6, 2015

OPINION

MR. JUSTICE BAER DECIDED: October 29, 2015
FT Holdings, L.P., (hereafter, FT) sought and obtained variances from the

Philadelphia Zoning Board of Adjustment (hereafter, the Board) following a proceeding

at which counsel for John Scott (Objector) protested against the requested variances.

When Objector appealed the grant of variances to the trial court, FT responded by

challenging Objector’s standing. The trial court agreed with FT that Objector lacked

standing to appeal, and quashed his appeal without considering the merits. Objector

further appealed, and the Commonwealth Court held that FT waived its challenge to

Objector’s standing by not raising it before the Board. Thus, it concluded that the trial

court should have heard the merits of Objector’s appeal. FT now appeals the
Commonwealth Court’s decision to this Court. Upon consideration of the arguments,

we agree with FT that the Commonwealth Court erred in finding FT’s challenge to

Objector’s standing waived, and hold that FT’s challenge to Objector’s standing was

properly raised for the first time in the trial court. Accordingly, we remand to the

Commonwealth Court for consideration of Objector’s standing to appeal the Board’s

grant of variances in favor of FT.

FT is in the process of developing a condominium complex in the City of

Philadelphia.1 As part of this development, on March 9, 2012, FT submitted an

application for a zoning/use permit to the Philadelphia Department of Licenses and

Inspections concerning three adjacent properties that it owned which were to become

part of an expansion of the condominium complex. FT sought to relocate lot lines, to

consolidate and merge two lots into the third lot, to demolish the existing structures on

two of the lots, and to erect a four story residential structure containing nine units.

The Department of Licenses and Inspections denied the application for a

zoning/use permit pursuant to the Philadelphia Zoning Code (Zoning Code).2 On April

10, 2012, FT appealed the denial to the Board and requested the appropriate variances.

The Board held a hearing on May 2, 2012.3 At the hearing, FT’s counsel explained that

1
This development, known as the Icehouse Condominium, is a three-phase
residential condominium located in the Fishtown section of Philadelphia.

2
Specifically, FT’s proposed use violated Section 14-205 of the Philadelphia
Zoning Code because the proposed use was not permitted in that zoning district, it did
not contain enough open area, exceeded the maximum height of thirty-five feet, and the
maximum number of stories by one; it violated Section 14-113 because it created a
condition of multiple structures that lacked the required yards; and it violated Section
14-1402 because it proposed only thirty-two off-street parking spaces, instead of the
required thirty-five.

3
Prior to the hearing, FT met with the Fishtown Neighbors Association to address
and resolve the neighbors’ concerns about the project. Objector did not participate in
(Gcontinued)

[J-34-2015] - 2
the Board had previously authorized development of twenty-six residential units and that

FT sought the variances to implement “Phase 3” of the development. Counsel for

Objector appeared on his behalf and presented his concerns about the development,

asserting that FT had failed to establish undue hardship sufficient to warrant a variance,

that the proposed structure violated height restrictions, that it did not conform to the

character of the neighborhood, that there would be less light on the street, and asserted

without substantiation that the structure would create traffic and parking issues on the

street. FT did not object to Objector’s counsel’s participation before the Board. The

Board granted the variances on May 17, 2012.

On June 18, 2012, Objector appealed the Board’s decision to the trial court. We

note, as background, that because the present zoning appeal arose in the City of

Philadelphia, it is governed by the Philadelphia Home Rule Charter, 351 Pa.Code §§

1.1-100-12.12-503, adopted pursuant to the General Assembly's enactment of the “First

Class City Home Rule Act” (Home Rule Act),4 and the Philadelphia Zoning Code.

Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1, provides standing in appeals

from zoning matters “to any aggrieved person.” For an individual to be aggrieved, and

therefore to have standing to appeal a decision of the Board, he or she must have “a

substantial, direct and immediate interest in the claim sought to be litigated.” Spahn v.

Zoning Bd. of Adjustment, 977 A.2d 1132, 1149 (Pa. 2009) (citing William Penn Parking

Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 2009)).

(continuedG)
this meeting. The result of the meeting was a vote in favor of the project and a letter of
community support. Accordingly, the neighborhood association did not oppose FT’s
requests for variances before the Board.

4
Act of April 21, 1949, P.L. 665, as amended by the Act of June 1, 1995, P.L. 45,
53 P.S. §§ 13101-13157.

[J-34-2015] - 3
FT intervened in Objector’s appeal from the Board to the trial court, and on

December 3, 2012, moved to quash the appeal, arguing that Objector lacked standing

because he was not aggrieved by the Board’s decision as required by Section 17.1 of

the Home Rule Act and Spahn. Specifically, FT argued that Objector presented no

evidence that his interest would be affected by the proposed development; that

Objector’s conduct following the hearing showed that his objections were for purely

pecuniary gain as he demanded monetary compensation from FT in exchange for

withdrawing his appeal; Objector did not attend the neighborhood association’s meeting

regarding the project, which was held prior to the hearing before the Board and provided

concerned members of the public the opportunity to voice their opinions, and which

resulted in a vote in favor of the project as well as a letter of community support; and

Objector’s concerns were general to the neighborhood and did not demonstrate any

negative impact on him in particular.5

Objector responded that FT’s challenge to his standing should have been raised

before the Board. Because FT did not oppose his participation before the Board,

Objector argued that the challenge was waived. In support of this argument, Objector

relied on a line of cases that arose under the Municipalities Planning Code (MPC), 53

P.S. § 10101 et seq. As will be further developed below, the MPC does not apply to the

City of Philadelphia, which, as noted, is governed instead by the Home Rule Act and the

Zoning Code. See, e.g., Society Created to Reduce Urban Blight (SCRUB) v. Zoning

Bd. of Adjustment of Philadelphia, 729 A.2d 117, 120 (Pa.Cmwlth. 1999) (“[T]he

5
In this respect, FT asserted that there is no direct line of sight from Objector’s
property to the development and his view would remain unobstructed, and Objector
lived 350 feet away from the site of the development, too far for the development to
have a negative impact on his light or air.

[J-34-2015] - 4
provisions of the MPC, including Section 908(3), do not govern Philadelphia.”). Section

908(3) of the MPC provides that the parties to a hearing before the local zoning hearing

board include any individuals or entities who are “permitted to appear by the board.” 53

P.S. § 10908(3).6

Specifically, Objector relied on two cases: In re Larsen, 616 A.2d 529 (Pa. 1992)

and Thompson v. Zoning Hearing Bd. of Horsham Twp., 963 A.2d 622 (Pa.Cmwlth.

2009). In In re Larsen, this Court applied the MPC to hold that where an individual

appeared and participated before the zoning hearing board without objection by the

landowner, he was a party, as defined by Section 908(3), to those proceedings, and

was entitled to appeal the decision as an aggrieved party. In re Larsen, 616 A.2d at

591. We explained that any defect with respect to standing was waived by the

landowner’s failure to raise the defect before the board. Id. at 591-92. The

Commonwealth Court reiterated this holding in Thompson, and further explained that

because the objector therein “appeared and participated as a party before the [board]

without objection by the landowner, she necessarily was aggrieved by the [board’s]

adverse decision and has standing to appeal that decision [to the trial court].”

Thompson, 963 A.2d at 625. In both Larsen and Thompson, the courts relied on Baker

v. Zoning Hearing Bd. of West Goshen Twp., 367 A.2d 819 (Pa.Cmwlth. 1976), in which

6
This section provides as follows:

(3) The parties to the hearing shall be the municipality, any person
affected by the application who has made timely appearance of record
before the board, and any other person including civic or community
organizations permitted to appear by the board. The board shall have
power to require that all persons who wish to be considered parties enter
appearances in writing on forms provided by the board for that purpose.

53 P.S. § 10908(3).

[J-34-2015] - 5
the Commonwealth Court explained that “[w]hile any Person aggrieved by a decision

regarding a use of another's land may appeal to a zoning hearing board, it is necessary,

for an appeal to be brought in our courts, that the appellant had been a party before the

zoning hearing board,” and held that where a resident appeared as a party before the

zoning hearing board to oppose a building permit without objection by the landowner,

she had a right to appeal to the trial court.

Objector additionally relied on South of South Street Neighborhood Ass’n v.

Philadelphia Zoning Bd. of Adjustment, 54 A.3d 115 (Pa.Cmwlth. 2012).7 In South of

South Street, a Philadelphia case, the Commonwealth Court extended Thompson and

Baker beyond their MPC context, without analysis of the distinction between the MPC

and the Home Rule Charter of Philadelphia in terms of standing, to hold that because a

neighborhood association participated as a party before the Board without objection

from the landowner, the association had standing to appeal the Board’s decision.

At a hearing before the trial court, Objector further asserted that he was

aggrieved by the Board’s grant of FT’s requested variances.8 Following argument, the

7
We granted allowance of appeal in South of South Street on an issue unrelated
to standing or waiver. See South of South St. Neighborhood Ass'n v. Philadelphia
Zoning Bd. of Adjustment, 73 A.3d 525 (Pa. 2013) (granting allowance of appeal to
determine whether “the Commonwealth Court issue[d] an opinion contrary to its prior
decisions and the established case law of this Court by lowering the standard for
obtaining a ‘use variance’ through improperly eliminating the ‘minimum variance
necessary to afford relief’ element of determining a use variance, especially where there
were no findings at any level in this matter that Respondent [Dung Phat] was seeking
the minimum variance that would afford relief?”). We later dismissed this appeal as
improvidently granted. South of South St. Neighborhood Ass'n v. Philadelphia Zoning
Bd. of Adjustment, 97 A.3d 1200 (Pa. 2014).

8
Objector specifically asserted that he was aggrieved because he has to drive by
the project, it was inconsistent with the character of the neighborhood, he lives on the
same block as the project, he does not want to look at it, and that FT failed to establish
a hardship necessitating the variances.

[J-34-2015] - 6
trial court granted FT’s motion to quash and dismissed Objector’s appeal. Addressing

first Objector’s contention that a standing challenge had to be raised before the Board to

avoid waiver, the trial court agreed with FT that it was irrelevant whether FT objected to

Objector’s standing to appear before the Board. Rather, the trial court perceived that

the issue of standing to appeal from the Board to the trial court was distinct, could not

have been raised previously, and therefore was not waived.

Turning next to the substantive issue of whether Objector had standing to appeal

to the trial court, the trial court rejected Objector’s argument that he was an “aggrieved

party” as that term was discussed in Baker and Thompson, because those cases

utilized the MPC definition of “party,” a definition that is inapplicable in Philadelphia.

Rather, the court examined Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1

(granting standing to appeal from the Board to “any aggrieved person”), as applied in

Spahn, which held that “a party is aggrieved if the party can show an interest that is

substantial, direct, and immediate.” Spahn, 977 A.2d at 1151 (citing William Penn

Parking, 346 A.2d at 280). In this respect, the trial court held that Objector was not

aggrieved because he failed to demonstrate that the variances would injure any of his

interests. Tr. Ct. Op. at 9 (“Simply put, [Objector] does not want to look at [FT’s]

project.”).

After the trial court denied Objector’s motion for reconsideration, he appealed to

the Commonwealth Court, which reversed. Scott v. City of Philadelphia, Zoning Bd. of

Adjustment, 88 A.3d 1071 (Pa. Cmwlth. 2014). The Commonwealth Court did not reach

the substantive question of Objector’s standing. Instead, it held that FT’s objection to

standing to appeal to the trial court had been waived because FT did not raise it before

the Board.

[J-34-2015] - 7
In reversing the trial court, the Commonwealth Court rejected FT’s reliance on

Spahn, which addressed when an individual is aggrieved and therefore has standing to

appeal from the Board to the trial court in Philadelphia. The Commonwealth Court

reasoned that Spahn solely analyzed “aggrievement” without mentioning whether the

landowner was obligated to challenge an objector’s standing before the Board, and

therefore did not address whether a landowner’s failure to challenge an objector’s

standing before the Board waived the standing challenge before the trial court. In

contrast, this was the precise issue addressed by the Commonwealth Court in South of

South Street. 54 A.3d at 119-20 (applying Baker and Thompson to hold that where the

neighborhood association participated in the proceedings before the Board without

objection from the landowner, it had standing to appeal to the trial court). Accordingly,

the Commonwealth Court relied on Baker, Thompson, and South of South Street to hold

that FT waived the issue of standing when it did not raise it before the Board. The

Commonwealth Court did not address whether Objector was, in fact, aggrieved.

We granted allowance of appeal to resolve two issues:

(1) Whether the Commonwealth Court erred when it held that FT Holdings'
objection to standing was untimely and the issue of standing was waived
where, pursuant to the Pennsylvania's Supreme Court holding in Spahn v.
Zoning Bd. of Adjustment, 602 Pa. 83, 977 A.2d 1132 (2009), standing to
appear before the [Board] is fundamentally different than standing to
appeal a [Board] decision to the Court of Common Pleas and the issue of
standing was, therefore, timely raised by FT Holding[s'] Motion to Quash.

(2) Whether, pursuant to the Pennsylvania's Supreme Court's holding in
Spahn v. Zoning Bd. of Adjustment, 602 Pa. 83, 977 A.2d 1132 (2009),
John Scott lacks standing to appeal the decision of the Philadelphia
Zoning Board of Adjustment and, as a result, the trial court properly
dismissed his appeal with prejudice.

[J-34-2015] - 8
Scott v. City of Philadelphia, Zoning Bd. of Adjustment & FT Holdings L.P., 104 A.3d

1287 (Pa. 2014). Because these are questions of law, our standard of review is de

novo and our scope of review is plenary. Mesivtah Eitz Chaim of Bobov, Inc. v. Pike

Cnty. Bd. of Assessment Appeals, 44 A.3d 3, 6 (Pa. 2012); Buckwalter v. Borough of

Phoenixville, 985 A.2d 728, 730 (Pa. 2009).

FT argues that this case is resolved by a straightforward application of Spahn, in

which this Court interpreted Section 17.1 of the Home Rule Act (permitting appeals by

any individual aggrieved by the Board’s decision) by applying the definition of an

aggrieved individual as established in William Penn Parking, 346 A.2d at 280 (as one

who has a substantial, direct and immediate interest in the claim sought to be litigated)

to appeals to the trial court from zoning decisions in Philadelphia. FT argues that

because we defined standing to appeal from the Board to the trial court without

obligating a landowner to preserve a standing challenge before the Board, there is no

such obligation, and standing may be challenged for the first time on appeal to the trial

court. FT asserts that this makes sense because whether an objector is aggrieved by a

decision of the Board can only be determined after the Board’s decision is rendered, not

before the Board’s decision. FT continues that because Objector’s standing to appeal

(i.e., whether he was aggrieved within the meaning of William Penn Parking) could not

have been raised until Objector was the appellant, FT challenged standing at the

appropriate time before the trial court.

Responding to Objector’s reliance on Thompson, FT argues that the court therein

clearly stated that the MPC, and by implication cases interpreting it, are inapplicable to

Philadelphia, in which standing is specifically resolved by Spahn. Thompson, 963 A.2d

[J-34-2015] - 9
at 625 n.6 (holding that a landowner outside of Philadelphia could not rely on Spahn

“because that case was governed by the Zoning Code of the City of Philadelphia, not

the MPC.”).

FT contends that by dismissing the applicability of Spahn in favor of the

Commonwealth Court’s decision in South of South Street, the court below failed to

recognize that South of South Street was decided incorrectly. According to FT, the

holding in South of South Street (a case that arose in Philadelphia) that challenges to

standing are waived unless presented to the Board, was premised on an improper

application of the MPC, or non-Philadelphia cases, such as Thompson, to Philadelphia

zoning cases. In contrast to the MPC, which limits participation before the zoning

hearing board to “parties,” the Philadelphia Code does not limit who may participate

before the Board. The import of this distinction, according to FT, is that while many

individuals may lodge objections and voice concerns to the Board, only those

individuals whose interest in the application is actually affected in a substantial way after

the Board issues its decision have the right to file an appeal to the trial court in accord

with Spahn. FT asserts that the Commonwealth Court’s decision in this case and in

South of South Street improperly extended the reasoning of cases resolved under the

MPC to cases arising under the distinct framework of Philadelphia, to which the MPC is

not applicable.

The result of the Commonwealth Court decision in this case, according to FT, will

be an end to open and inclusive hearings before the Board in favor of aggressive

adversarial proceedings designed to investigate the background and motivation of every

person appearing before the Board, so that the landowner may develop and preserve all

[J-34-2015] - 10
objections to standing. FT continues that the consequence to the landowner of failing to

explore the standing of everyone appearing before the Board would be frivolous

appeals from individuals who are not aggrieved by the Board’s decision contrary to the

requirement of Section 17.1 of the Home Rule Act and Spahn. If the Commonwealth

Court’s holding stands, FT asserts that anyone who appears before the Board or even

merely fills out an appearance slip will be deemed to have standing to appeal through

waiver of the right to object, which is the precise result that Section 17.1 of the Home

Rule Act, as interpreted in Spahn, was designed to eliminate by specifically requiring an

appealing party to be aggrieved in order to appeal from the Board.

FT continues that requiring standing objections to be raised on pain of waiver

before the Board is an unworkable standard for several reasons. First, there is no

discovery or prehearing investigation prior to a hearing before the Board, and the

landowner is generally unaware of who will appear and object, what the objections will

be, or what the objector’s motivations are. As demonstrated in this case, FT had no

prior knowledge of Objector’s intentions, and had no basis to cross-examine him on

standing. Second, FT asserts that requiring standing objections to be made before the

Board is only workable where the objector actually testifies, which, in many cases, is not

possible. For example, group concerns are usually represented by the testimony of

one, a scenario encouraged by the Board’s limitations on duplicative testimony.

Similarly, FT speculates that any meaningful cross-examination on standing is

impossible where an attorney appears on behalf of the objector, such as occurred here.

Counsel for FT would have been unable to cross-examine Objector’s counsel regarding

Objector’s standing. According to FT, the landowner’s obligation before the Board is not

[J-34-2015] - 11
to cross-examine every objector, but to present evidence in support of the requested

variance to enable the Board to make a proper decision.

FT finally argues that Objector is not aggrieved as that term is defined in Spahn

and William Penn Parking, and therefore lacks standing to appeal to the trial court,

because his interest is not substantial, direct, or immediate. Specifically, FT notes that

Objector put forward no evidence that his interest would be adversely affected by the

proposed development, but rather made purely generic arguments by referring to

hardship, light, height, and parking. FT argues that such general, neighborhood

concerns are insufficient to establish that he was personally aggrieved as required in

Spahn.

The City of Philadelphia has filed a brief in support of FT responding to what it

perceives to be an incorrect decision by the Commonwealth Court, and the burden the

decision has imposed on the Board, which hears more than a hundred zoning appeals

each month. The City agrees with FT that the Commonwealth Court in this case erred

in following South of South Street, rather than Spahn. Like FT, the City reads Spahn as

defining standing to appeal from the Board to the trial court, without regard for whether

standing was challenged before the Board. The City asserts that the reason the Spahn

Court did not expressly decide whether standing must be raised before the Board was

because the Court did not consider it relevant to the issue of standing before the trial

court. Rather, in addressing whether the appellant in Spahn was not aggrieved, and

therefore lacked standing, the Court essentially omitted any analysis concerning

questions of timing and waiver and presumed that the landowner could challenge

standing for the first time in the trial court.

[J-34-2015] - 12
According to the City, cases from suburban counties subject to the MPC, such as

Thompson and Baker, are not applicable to Philadelphia cases decided under the

Zoning Code. In addition, the City posits that the objecting neighbors in Thompson and

Baker were specifically permitted to appear by the zoning board as “parties,” see 53

P.S. § 10908(3), without objection by the landowner. The City asserts that under these

cases, and the MPC, it is necessary to appear and be considered a party in order to be

adversely affected by the zoning board decision and to have standing to appeal. In

contrast, individuals participating before the Philadelphia Zoning Board of Adjustment

are not required to receive permission to act as parties or otherwise voice their

concerns about a development.

Turning to a broader examination of the impact of the Commonwealth Court’s

decision in this case and in South of South Street on the City’s procedure and

administration of zoning hearings, the City, like FT, argues that these determinations

have created a substantial detrimental impact on the process of conducting zoning

hearings in the City under the Zoning Code. In this respect, the City asserts that only

appellants (usually landowners) are required to demonstrate standing to appeal to the

Board, while those who merely appear before the Board as objectors do not. According

to the City, anyone is free to attend and address the Board in its public hearings, without

establishing either party status or standing. In addition, anyone may submit a written

“appearance slip” at the Board’s hearings to entitle himself to written notification of the

Board’s decision, again without establishing standing.

If the holding below were to stand, the City asserts that all persons and

organizations appearing before the Board, either personally or through a representative,

[J-34-2015] - 13
could appeal a decision to the trial court, regardless of whether they are aggrieved as

required by Section 17.1 of the Home Rule Act and Spahn, absent a grounded objection

by the landowner. The City argues that the practical effect of requiring the landowner to

challenge the standing of everyone who comes before the Board, even via a

representative or written appearance slip, would be to add detrimental delay to every

proceeding. According to the City, one of the goals of the City’s Zoning Code is

promoting greater certainty and timeliness in the zoning process, which has allowed for

improved economic development opportunities while achieving greater participation and

input from neighbors and community groups. The City considers that the addition of

doubt and time to the zoning process will undermine the achievement of this goal.

In response, Objector relies on the MPC cases noted above to argue that when a

person is permitted to appear as a party before a zoning hearing board in opposition to

a zoning application, he is entitled to appeal any adverse decision as an aggrieved

party. See Baker, 367 A.2d 819; In re Larsen, 616 A.2d 529; Thompson, 963 A.2d 622.

Objector further relies on South of South Street, 54 A.3d 115, as Commonwealth Court

precedent arising out of Philadelphia that likewise penalized, on pain of waiver, a

landowner’s failure to challenge “a party’s” standing/aggrievement before the Board. As

Objector observes, the facts of South of South Street are identical to those herein.

According to Objector, under South of South Street, standing must be raised at the

Board level, otherwise a party adversely affected by the Board’s decision is aggrieved

per se without having to prove anything in the trial court.

Objector argues that this makes perfect sense from a policy perspective,

because issues of justiciability, such as standing, should be dealt with early in the case,

[J-34-2015] - 14
before proceeding to the merits. Because Objector appeared before the Board, he

argues that his status as an aggrieved party should have been challenged there, to

ensure that all preliminary justiciability issues were resolved at the outset of the

litigation.9 Objector argues in favor of the Commonwealth Court’s interpretation of

Spahn as having nothing to do with when a challenge to standing must be brought, and

asserts that if this Court had wanted Spahn to address the timing of a challenge to

standing, we would have said so.

Turning to whether he is aggrieved, Objector focuses on his proximity to the

development and his general concerns about parking, light, height, view, and traffic. He

asserts that had FT questioned his aggrieved status before the Board, he would have

provided further “testimony” (apparently, through counsel) on these details. Finally,

Objector dismisses FT’s and the City’s concerns about the Board’s procedure by

asserting that the Commonwealth Court in this case simply applied long-standing

precedent, and that no such chaos resulted from any of these prior cases.

The parties herein rely on different cases to support their position, with the City

and FT arguing primarily that cases arising under the MPC are not precedential in

Philadelphia. We will therefore address the differences between zoning appeals

brought pursuant to the MPC and those that arise in Philadelphia, and the relevant

precedent.

Beginning with the MPC, we note that Section 913.3, entitled “[p]arties appellant

before the board,” provides that “any person aggrieved” may file an appeal from a

9
To be precise, Objector did not appear before the Board; rather, he sent counsel
on his behalf.

[J-34-2015] - 15
zoning officer’s decision to the zoning hearing board. 53 P.S. § 10913.3 (“Appeals

[from, inter alia, decisions of a zoning officer] may be filed with the board in writing by

the landowner affected, any officer or agency of the municipality, or any person

aggrieved.”). Once the appeal to the board is taken, Section 908(3) provides that the

parties to the hearing before the board are “the municipality, any person affected by the

application who has made timely appearance of record before the board, and any other

person including civic or community organizations permitted to appear by the board.”

53 P.S. § 10908(3).

Baker was decided pursuant to Section 1007 of the MPC, which was repealed in

1988 and recodified in Section 913.3, supra. Section 1007 provided that “[p]ersons

aggrieved by a use or development permitted on the land of another who desire to

secure review . . . shall first submit their objections to the zoning hearing board . . .” 53

P.S. § 11007 (repealed). It further provided that “‘[a]ppeals to court from the decision of

the zoning hearing board may be taken by any party aggrieved by appeal filed not later

than thirty days after notice of the decision is issued.” Id.

The landowner of the property at issue in Baker, which was located in West

Goshen Township, Chester County, took an appeal to the zoning hearing board from a

zoning officer’s denial of a permit. 367 A.2d at 820. Before the board, a township

resident, Baker, was present in opposition to the permit, called and cross-examined

witnesses, and read a four-page closing statement, all without objection by the

landowner. When the board granted the permit, Baker appealed to the trial court, which

dismissed the appeal on the ground that she was not “a party aggrieved” and thus

lacked standing to bring her appeal under Section 1007 of the MPC. On further appeal,

[J-34-2015] - 16
the Commonwealth Court resolved the issue of standing by distinguishing between

“persons aggrieved,” who, pursuant to Section 1007, could take an appeal to the board,

and a “party aggrieved,” which, pursuant to the same section, could take an appeal from

the board (to the trial court). Baker, 367 A.2d at 821 (“The distinction with which we are

here concerned is that between ‘persons aggrieved’ and a ‘party aggrieved[.]’ While

any person aggrieved by a decision regarding a use of another's land may appeal to a

zoning hearing board, it is necessary, for an appeal to be brought in our courts, that the

appellant had been a party before the zoning hearing board.”).

The Commonwealth Court looked to Section 908(3) to discern who was a party

before the board, and determined that because Baker was permitted by the board to

appear as a party, without objection by the landowner, she was a party within Section

908(3). The court then examined Section 1007 and determined that Baker was also a

“party aggrieved,” and thus permitted to appeal from the board’s decision to the trial

court. Id. at 822-23 (“Having appeared and participated as a party before the Board,

Mrs. Baker was necessarily aggrieved by the adverse decision of the Board. To hold

otherwise would reduce to a nullity for purposes of the appeal the obtaining of the status

of a party before zoning hearing boards.”). See also In re Larsen, 616 A.2d 529 (Pa.

2005) (applying Baker to hold that an individual who was permitted to appear in

opposition to an application by a landowner to the zoning board in Pittsburgh, to cross-

examine witnesses, and to present evidence, was a party to those proceedings and was

entitled to appeal the board’s grant of the landowner’s application as an aggrieved

party).

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In Thompson, a zoning appeal which arose in Horsham Township pursuant to the

MPC, the landowner sought a use and dimensional variance from the zoning hearing

board. 963 A.2d at 623. At a hearing on the matter, the board granted party status to

Thompson without objection by the landowner. Id. at 624. After the board granted the

variances, Thompson appealed to the trial court. The landowner sought to quash the

appeal, arguing that Thompson lacked standing to appeal the board’s decision because

he was not aggrieved by the variances. Relying on Baker, the trial court denied the

motion to quash, reasoning that the landowner waived any challenge to Thompson’s

standing by failing to object when the board granted him party status. Id. On appeal,

the Commonwealth Court affirmed, also relying on Baker, and concluding that “because

Thompson appeared and participated as a party before the [board] without objection by

Landowner, he necessarily is aggrieved by the [board’s] adverse decision and has

standing to appeal that decision to the trial court.” Id. at 625. The Commonwealth

Court specifically rejected the landowner’s reliance on Spahn “because that case was

governed by the Zoning Code of the City of Philadelphia, not the MPC.” Thompson,

963 A.2d at 625 n.6.

Therefore, by defining who is a party under the MPC, Section 908(3) limits who

may appear and participate in zoning hearings. According to Baker, the purpose of

achieving party status before the board is to establish who is aggrieved by an adverse

decision. Additionally, according to Baker and Thompson, once an objector becomes a

party before the board without objection by the landowner, the objector is “necessarily

aggrieved” by an adverse decision of the board. Consequently, when an objector in a

municipality governed by the MPC appears and participates before the board as a party

[J-34-2015] - 18
without objection, the party-objector is aggrieved and entitled to appeal the board’s

adverse decision. Philadelphia, however, is not governed by the MPC. Therefore, the

MPC and cases applying it, such as Thompson, Larsen, and Baker, have no bearing on

the distinct legislative and precedential framework applicable in Philadelphia.

Zoning in the City of Philadelphia is governed by the Zoning Code, at Chapter 14

of the Philadelphia Code, as well as the Home Rule Act, rather than the MPC. The

Philadelphia Code, unlike the MPC, provides no definition of who is a party before the

Board and does not limit who may appear and participate in a zoning hearing. Once an

appeal is properly brought before the Board, as it was by FT as appellant from the

decision of the Department of Licenses and Inspections, no other person who appears

at the zoning hearing is required to have standing. As the City emphasizes, anyone is

free to attend and address the Board at its hearings. In stark contrast to the MPC,

attending and participating at the hearing does not confer standing to appeal to the trial

court or render an individual “necessarily aggrieved” to appeal an adverse decision.

Rather, as this Court decided in Spahn, the Home Rule Act defines who may appeal

from the Board to the trial court.

Specifically, Section 17.1 of the Home Rule Act, 53 P.S. § 13131.1, provides

standing in appeals from zoning matters in Philadelphia, as a city of the first class, to

“any aggrieved person” as follows:

In addition to any aggrieved person, the governing body vested with
legislative powers under any charter adopted pursuant to this act shall
have standing to appeal any decision of a zoning hearing board or other
board or commission created to regulate development within the city. As
used in this section, the term “aggrieved person” does not include
taxpayers of the city that are not detrimentally harmed by the decision of
the zoning hearing board or other board or commission created to regulate
development.

[J-34-2015] - 19
53 P.S. § 13131.1.

Section 17.1 of the Home Rule Act is contrary to the Philadelphia Code, which

broadly granted standing to any taxpayer under Section 14–1807(1) (“Any person or

persons jointly or severally aggrieved by any decision of the Board, or any taxpayer, or

any officer, department, board or bureau of the City, may appeal. . . .”). We resolved

this conflict in Spahn.

Specifically, in Spahn, we addressed, inter alia, whether by enacting Section 17.1

of the Home Rule Act the General Assembly had eliminated general taxpayer standing

in Philadelphia and whether the appellants in fact had standing to pursue zoning

challenges under traditional notions of standing. In resolving the question of Section

17.1, we held that by its plain language, the General Assembly intended “to give the

specific power of standing to appeal a decision of a zoning hearing board within a city of

the first class to the governing body vested with legislative powers and to ‘aggrieved

persons,’” Spahn, 977 A.2d at 1143, and that the local Philadelphia Code must cede to

this legislative enactment. We further held that the General Assembly intended the term

“aggrieved person” as it is generally understood and defined in William Penn. Under

William Penn, a party is aggrieved if the party can show an interest that is substantial,

direct, and immediate. Spahn, 977 A.2d at 1151 (citing William Penn, 346 A.2d at 280).

We did not discuss whether a landowner was obligated to challenge an objector’s

standing before the Board, or otherwise address the timing of a challenge to standing.

Considering this legislative and precedential framework for zoning appeals in

Philadelphia, we agree with the City and with FT that although anyone may appear

[J-34-2015] - 20
before the Board, to appeal a decision of the Board to the trial court it is necessary for

the appellant to demonstrate that he or she is “an aggrieved person” as Section 17.1

requires and we defined in Spahn. A party is not necessarily aggrieved simply because

he or she appeared or participated before the Board. Rather, to appeal from the Board

to the trial court, an appellant must demonstrate in the trial court, if challenged, that he

is aggrieved pursuant to William Penn and as applied in Spahn, and may not avoid this

obligation by arguing that the landowner failed to challenge standing before the Board.

It would be futile, and contrary to the law, to require a landowner to challenge the

standing of everyone who participates before the Board, when there is no requirement

that participation before the Board requires standing at that stage. Moreover, because

the ability to appear and participate before the Board is distinct from standing to appeal

the Board’s decision to the trial court, the first time FT could challenge Objector’s

standing to appeal in this case was when Objector took the appeal to the trial court.

FT’s challenge to Objector’s standing was, therefore, timely.

The Commonwealth Court in this case did not consider Spahn to be relevant to a

determination of Objector’s standing, focusing instead on FT’s failure to object to

standing before the Board. Rather than considering Spahn, the Commonwealth Court

herein applied its decision in South of South Street, which resolved a Philadelphia

zoning appeal by applying precedent decided under the MPC. In South of South Street,

a landowner submitted an application to the Philadelphia Department of Licenses and

Inspections seeking a zoning/use registration permit for his industrial zoned property,

which was denied. The landowner appealed the decision to the Board, seeking a

variance to use the property for commercial purposes. The Board conducted a hearing

[J-34-2015] - 21
on the landowner’s appeal and initially granted the requested variance. Upon a letter

from an objecting neighborhood association, however, the Board agreed to reconsider

its decision and held a second hearing, at which the neighborhood association

participated without objection by the landowner. The Board again granted the

landowner’s variance, subject to conditions. The neighborhood association appealed

the Board’s decision to the trial court, which affirmed.

On further appeal to the Commonwealth Court, the landowner challenged the

neighborhood association’s standing to bring the appeal. The Commonwealth Court

resolved this challenge by relying on Thompson. South of South Street, 54 A.3d at 119-

20 (citing Thompson, 963 A.2d at 625 (applying the MPC to hold that a party who

participated before the board without objection was necessarily aggrieved by the

board’s adverse decision and therefore had standing to appeal)). Relying on this

precedent without any analysis or recognition that Thompson arose outside of

Philadelphia, the Commonwealth Court in South of South Street held that because the

neighborhood association participated before the Board without objection from the

landowner, it had standing to appeal. In reaching this decision the Commonwealth

Court did not mention Spahn, William Penn, or otherwise analyze whether the

neighborhood association was aggrieved as required by Section 17.1 of the Home Rule

Act.

The South of South Street decision is problematic for several reasons. First, its

holding that challenges to standing are waived unless presented to the Board was

premised upon a case (Thompson) that was decided under the MPC which, as noted, is

not applicable in Philadelphia. There is no requirement in Philadelphia similar to that in

[J-34-2015] - 22
Section 908(3) of the MPC that one must be permitted by the board to appear as a party

as a prerequisite to standing. Rather, the City encourages broad public participation

before the Board. Second, pursuant to Spahn, which South of South Street did not

consider, only those individuals who are aggrieved by the Board’s decision may appeal

that decision to the trial court. Holding that an objector who participated before the

Board without objection by the landowner is necessarily aggrieved by an adverse

decision circumvents the limitation of Section 17.1 on the right to appeal the Board’s

decision to aggrieved persons as that term is defined in William Penn. Accordingly, the

conclusion in South of South Street premised on Thompson that the neighborhood

association had standing to appeal to the trial court because it participated before the

Board without objection by the landowner, 54 A.3d at 120, is disapproved to the extent it

is inconsistent with this decision.

In deciding the appeal in Objector’s favor, the Commonwealth Court found that

FT waived the issue of Objector’s standing and declined to consider whether Objector

was aggrieved as required by Section 17.1 of the Home Rule Act. This was error.

Moreover, as the trial court held, a determination of whether Objector was aggrieved

could not be made until after the Board issued its decision. FT therefore challenged

Objector’s standing to appeal the Board’s grant of variances in this case at the first

available opportunity in the trial court. We therefore reverse the Commonwealth Court’s

holding that FT waived its challenge to Objector’s standing. Although the trial court held

that Objector was not aggrieved, the Commonwealth Court did not consider this

conclusion based on its finding of waiver. Finding no waiver, we remand the matter to

[J-34-2015] - 23
the Commonwealth Court for resolution of Objector’s appeal from the trial court’s

determination that he was not aggrieved.

Mr. Chief Justice Saylor, Mr. Justice Eakin, Madame Justice Todd, and Mr.

Justice Stevens join the opinion.

[J-34-2015] - 24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3150759. Public record. Not legal advice.