B.J. O'Neill v. The Philadelphia Zoning Board of Adjustment

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian J. O'Neill, :

Appellant :

:

v. : No. 1403 C.D. 2016

: ARGUED: May 1, 2017

The Philadelphia Zoning Board of :

Adjustment :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY

JUDGE HEARTHWAY FILED: August 30, 2017

Appellant Brian J. O’Neill (O’Neill), a Philadelphia City Councilman,

appeals from the August 4, 2016 order of the Court of Common Pleas of

Philadelphia County (trial court) affirming the Philadelphia Zoning Board of

Adjustment’s (Board) grant of a variance “per the revised plans” for a proposed

residential development.1 We quash O’Neill’s appeal for lack of standing.2

This case has a long history of court and agency proceedings and

concerns a proposed residential development on property located at 9838-44

Legion Street, Philadelphia (Property). The Property lies in O’Neill’s district.

1

The City of Philadelphia filed a notice of non-participation with this Court, stating that

it never participated in this matter and that O’Neill is privately represented. (Docket at 4/03/17).

2

At oral argument, O’Neill asserted that Land Endeavor O-2, Inc. waived the issue of

standing by not filing a cross-appeal. The issue of an appellant’s standing to appeal may be

raised in an appellee’s brief, as was done here. See G. RONALD DARLINGTON ET AL.,

PENNSYLVANIA APPELLATE PRACTICE § 501:16 (2016-17).

On September 18, 2003, applicant/appellee Land Endeavor O-2, Inc.

(Land Endeavor) applied to the Philadelphia Department of Licenses & Inspections

(L&I) for a zoning/use permit to erect two structures containing multiple single-

family dwelling units. (Board’s Findings of Fact (F.F.) No. 1.) The application

proposed access to the dwellings by way of a shared driveway off of Legion

Street.3 L&I denied the permit and years of litigation ensued. (F.F. Nos. 2, 5.)

Ultimately, on June 1, 2011, Land Endeavor returned to the Board for a hearing,

along with protestant, West Torresdale Civic Association, and O’Neill. (F.F. No.

6, Certified Record (C.R.), 6/1/11 Notes of Testimony (N.T.) at 2, 27.) The Board

instructed Land Endeavor to work with the community and come back at a later

time. (See F.F. No. 6.)

Subsequently, on February 4, 2015, the Board held a hearing, at which

Land Endeavor presented a new development plan. (See F.F. Nos. 11-12.) The

new plan reduced the number of dwelling units and still provided for access to the

units by way of a shared driveway off of Legion Street (Revised Plans). (F.F. Nos.

12-14.) The Revised Plans were stamped by the City’s Planning Commission and

Streets Department, and had been given conceptual approval by the City’s Water

Department. (F.F. No. 16.) Although Land Endeavor had expected to present the

Revised Plans as part of a universal settlement, O’Neill raised concerns to the

Board. (F.F. No. 17.) O’Neill referred to the driveway as a “private street,” and

asked the Board to require that the “street” itself and the water and sewer

3

Certified Record (C.R.), Land Endeavor 02, Inc. v. City of Philadelphia (Pa. Cmwlth.,

No. 268 C.D. 2006, filed August 23, 2007) (Land Endeavor 02), slip opinion (op.) at 2.

2

underneath it be built as if the “street” was a city street. (F.F. Nos. 18-19.) The

Planning Commission representative testified that her agency had no objection to

the development at this location. (F.F. No. 24.) The Board held its decision for

further details regarding the water and sewer utilities and surfacing of the “street,”

and Land Endeavor and O’Neill subsequently submitted letters regarding their

positions. (F.F. Nos. 25-28.) On August 18, 2015, the Board granted the variance

per the Revised Plans. (F.F. No. 29.)

O’Neill appealed from the Board’s decision to the trial court. Land

Endeavor intervened to oppose the appeal. O’Neill argued that Land Endeavor

failed to establish that it was entitled to a variance. Additionally, O’Neill argued

that the Pennsylvania Supreme Court case of Zimmerman v. Zoning Board of

Adjustment of City of Philadelphia, 654 A.2d 1054 (Pa. 1995) controlled, and that

pursuant to Zimmerman, Land Endeavor first had to apply to the City for a street to

be placed on the City plan before applying for a zoning variance due to lack of

street frontage. In response, Land Endeavor argued, inter alia, that O’Neill lacked

standing to appeal.

The trial court ruled from the bench that O’Neill had standing and

explained its reasoning. (Reproduced Record at 114a, 5/4/16 transcript at 10-11.)

Subsequently, the trial court issued an order denying O’Neill’s appeal on the merits

and affirming the Board’s decision. In its opinion in support of its order, the trial

court stated that the Board reviewed all the relevant factors for a variance, and the

trial court determined that the Board’s decision was supported by substantial

3

evidence. Additionally, the trial court ruled that Zimmerman was not controlling

because it was factually distinguishable.

O’Neill now appeals to this Court from the trial court’s order. Before

this Court, O’Neill argues that (i) the trial court erred in failing to find Zimmerman

controlling; and (ii) the Board erred in granting the variance because the finding of

hardship is not supported by substantial evidence and because Land Endeavor

created the hardship. In response, in addition to refuting these arguments, Land

Endeavor argues that O’Neill lacks standing to appeal the Board’s decision.

We will first address the threshold question of standing. A challenge

to a party’s standing raises a question of law subject to this Court’s plenary, de

novo review. Americans for Fair Treatment, Inc. v. Philadelphia Federation of

Teachers, 150 A.3d 528 (Pa. Cmwlth. 2016).

Land Endeavor argues that O’Neill does not have standing to appeal

the Board’s decision, either in his individual capacity or in his capacity as a City

Council member. Land Endeavor argues that O’Neill is not personally aggrieved

and does not have legislative standing.

In response, O’Neill asserts that his standing to appeal is supported on

three grounds: (i) section 17.1 of the First Class City Home Rule Act4 (Home Rule

Act); (ii) section 14-303(15)(b)(.1) of the Philadelphia Zoning Code (Code); and

4

Act of April 21, 1949, P.L. 665, added by Section 2 of the Act of November 30, 2004,

P.L. 1523, 53 P.S. § 13131.1.

4

(iii) legislative standing. O’Neill contends that any one of these three grounds is

sufficient to establish his standing, and he does not need to show that he is

aggrieved by the Board’s decision. (O’Neill’s Reply Brief at 6.) O’Neill contends

that in Philadelphia, it is customary for councilmembers to appeal zoning

decisions. O’Neill points out that City councilmembers represent the community

and its members and to deny standing to councilmembers would lock the

courthouse doors to his constituents who cannot afford lawyers. He also points out

that in ruling on the issue of standing, the trial court explained it would be

“cumbersome” to the court to require City Council to pass a resolution authorizing

the appeal before the trial court could adjudicate it. O’Neill also argues that he has

legislative standing because the Board usurped City Council’s authority to legislate

for public streets and made an “end run” of the process by providing a private

street by means of a variance.

We will first address O’Neill’s arguments that he has standing under

the Home Rule Act and the Code.5 These arguments involve an issue of statutory

construction, which presents a pure question of law. See Spahn v. Zoning Board of

Adjustment, 977 A.2d 1132 (Pa. 2009). As such, our standard of review is de

novo, and our scope of review is plenary. Id. Any issue involving the construction

of a statute or ordinance must begin by focusing on the plain language. See

Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b);

Spahn; cf. Trojnacki v. Board of Supervisors Solebury Township, 842 A.2d 503

5

The Home Rule Act takes precedence and controls over the Code where there are

conflicting provisions concerning standing to appeal a zoning decision. Spahn v. Zoning Board

of Adjustment, 977 A.2d 1132 (Pa. 2009). Because we do not discern a conflict between the

Home Rule Act and the Code with respect to the issue before us, we will address both.

5

(Pa. Cmwlth. 2004) (stating that although the Statutory Construction Act of 1972,

1 Pa. C.S. §§ 1501-1991, does not expressly apply to zoning ordinances, the

principles contained in that act are followed when construing a local ordinance).

Section 17.1 of the Home Rule Act provides:

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.

53 P.S. § 13131.1. Thus, under the plain language of the Home Rule Act, standing

to appeal a zoning decision in the City is limited to two classes—aggrieved persons

and the governing body vested with legislative powers, Spahn, which in

Philadelphia is the City Council, see Code, § 14-301(2)(a).

Section 14-303(15)(b)(.1) of the Code provides:

A final decision made by the Zoning Board or the

Commission pursuant to this Zoning Code may be

appealed to a Pennsylvania Court of Common Pleas

by any aggrieved party or by City Council pursuant

to Act 193 of 2004 (Act of November 30, 2004, P.L.

1523, 53 P.S. § 13131.1) within 30 days of the

decision or such other time as may be provided by

law.

6

Thus, an appeal to the trial court from the Board’s decision may be taken by any

aggrieved party or by City Council. O’Neill argues that the Home Rule Act and

the Code grant standing to City Council and City Council is not required to be

aggrieved.

The plain language of both the Home Rule Act and the Code grants

standing to City Council as a body; nowhere does either grant standing to the

individual councilmembers. The Home Rule Act and Code could have easily been

drafted to include language to grant standing to the individual councilmembers if

that was the intent; however, neither was drafted as such. This Court cannot insert

language or otherwise redraft the Home Rule Act or the Code. Moreover, whether

councilmembers have appealed zoning decisions in the past and whether

constituents can afford to appeal are not considerations for this Court and do not

allow this Court to ignore the plain language of the Home Rule Act and the Code.

Likewise, the fact that the trial court deems it “cumbersome” for City Council to

pass a resolution authorizing a councilmember to appeal a zoning decision before

the trial court adjudicates the matter is not relevant. Our review of the pleadings

indicates that O’Neill has appealed the Board’s decision in his capacity as an

individual member of City Council. Thus, O’Neill lacks standing under the Home

Rule Act and the Code to appeal from the Board’s decision.

We next turn to whether O’Neill has legislative standing to appeal the

Board’s decision. In Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009), the

Pennsylvania Supreme Court reviewed jurisprudence concerning standing and

stated:

7

Legislators and council members have been permitted to

bring actions based upon their special status where there

was a discernible and palpable infringement on their

authority as legislators. The standing of a legislator or

council member to bring a legal challenge has been

recognized in limited instances in order to permit the

legislator to seek redress for an injury the legislator or

council member claims to have suffered in his official

capacity, rather than as a private citizen. Legislative

standing has been recognized in the context of actions

brought to protect a legislator's right to vote on

legislation or a council member's viable authority to

approve municipal action. Legislative standing also has

been recognized in actions alleging a diminution or

deprivation of the legislator's or council member's power

or authority. At the same time, however, legislative

standing has not been recognized in actions seeking

redress for a general grievance about the correctness of

governmental conduct.

Id. at 501.

O’Neill argues that the Board’s decision violated the City’s authority

to create streets. O’Neill argues that the Board usurped City Council’s authority to

legislate for and create public streets, and that Land Endeavor made an “end run”

of the process by providing a private street by means of a variance. O’Neill

maintains that he has suffered an impairment or deprivation of his official authority

to act as a legislator, and therefore, he has legislative standing.

Although O’Neill argues that the Board usurped his power to legislate

for a City Street, which seemingly would give him legislative standing if a street

were in fact at issue, O’Neill has mischaracterized the issue. Contrary to O’Neill’s

8

characterization, the variance did not create a street. Rather, the variance, based

upon the Revised Plans, includes a driveway. Land Endeavor is not proposing, and

has never proposed, a public street. O’Neill simply prefers that Land Endeavor

propose a City street, rather than construct a driveway.6 However, O’Neill’s

preference is not a legally protected interest. The Board has exclusive authority to

grant variances, see Code § 14-301(4)(b)(.1)(.b), and significantly, the variance

here does not involve a street. The Board’s decision is not a discernible and

palpable infringement on O’Neill’s authority as a legislator, nor does it deprive or

diminish O’Neill’s right to vote or other power or authority. Both issues O’Neill

raises on appeal (i.e., the trial court’s failure to follow Zimmerman and whether

Land Endeavor established it was entitled to a variance) are general grievances

about the correctness of the decisions of the trial court and the Board. Legislative

standing does not lie for such challenges. See Fumo.7

Accordingly, for the foregoing reasons, O’Neill lacks legislative

standing to appeal the Board’s decision under the circumstances here. Therefore,

we quash O’Neill’s appeal.

__________________________________

JULIA K. HEARTHWAY, Judge

6

O’Neill does not argue that the proposed driveway does not meet the definition of a

“driveway” under the Code. Cf. Land Endeavor O-2, slip op. at 8 (discussing trial court’s

decision and statement that the proposed driveway fits the Code’s definition of a “driveway”).

7

O’Neill argues that Fumo does not apply because in Fumo, the Supreme Court

determined that the statute at issue did not contemplate a role for City Council in the issuance of

the license, and here the Home Rule Act and the Code confer standing upon City Council to

appeal decisions of the Board. While City Council may appeal zoning decisions, to have

legislative standing, it is still necessary for the Board’s decision to undercut the authority of City

Council or a councilman, or diminish their vote. As stated, that did not occur here.

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian J. O'Neill, :

Appellant :

:

v. : No. 1403 C.D. 2016

:

The Philadelphia Zoning Board of :

Adjustment :

ORDER

AND NOW, this 30th day of August, 2017, the appeal of Brian J.

O’Neill is hereby quashed.

__________________________________

JULIA K. HEARTHWAY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian J. O'Neill, :

Appellant :

:

v. : No. 1403 C.D. 2016

: Argued: May 1, 2017

The Philadelphia Zoning Board of :

Adjustment :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

CONCURRING OPINION

BY JUDGE BROBSON FILED: August 30, 2017

I join in the majority’s disposition of this appeal. Specifically, I agree

that neither the First Class City Home Rule Act1 nor the Philadelphia Zoning Code

confers standing on an individual councilperson to challenge the Philadelphia

Zoning Board of Adjustment’s grant of a variance. I write separately because I can

fathom a circumstance where the Philadelphia City Council (City Council) may not

be nimble enough to act as a body within the time constraints for challenging such

a decision. In that situation, it may be adequate for a councilperson to initiate a

challenge on behalf of City Council, with prompt formal action by City Council

thereafter ratifying the appeal.

P. KEVIN BROBSON, Judge

1

Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157.