CIVIL PROCEDURE

Zoning • Residential Development • Variances • Standing to Appeal

Scott v. City of Philadelphia Zoning Bd. of Adjustment, PICS Case No. 14-0469 (Pa. Commw. March 21, 2014) McGinley, J. (17 pages).

Where a party seeking a zoning variance failed to object to the standing of a third party at the zoning hearing, the third party was necessarily aggrieved by the adverse decision of the zoning board, and had standing to appeal the board’s decision to the trial court. Reversed and remanded.

Appellant John Scott appealed the zoning variance decision granted by the City of Philadelphia Zoning Board of Adjustment to FT Holdings, L.P. for FT’s residential development project that was located on the same block as Scott’s residence.

FT initially applied to the Department of Licenses and Inspections for variances regarding open area, height, number of floors, frontage and number of parking spaces, which was denied. FT appealed to the Zoning Board of Adjustment, which conducted a hearing. An attorney for Scott appeared on his behalf at the hearing, and argued that proper notice was not given, and that FT had failed to demonstrate an undue hardship that would entitle it to a variance and that the variances sought would affect the character of the neighborhood, reduce light and air, and increase parking and traffic problems.

After the board granted FT’s variance, Scott appealed to the common pleas court. FT moved to quash Scott’s appeal on the basis that he lacked standing because he failed to establish that he was aggrieved by the board’s decision. FT noted that Scott’s allegations were purely limited to legal arguments, and failed to establish any specific negative impact on Scott.

The common pleas court found that Scott did lack standing to appeal the board decision and that FT had not waived its objection to Scott’s standing by not raising it at the board hearing, and that Scott had not demonstrated that he was an aggrieved party or had a substantial, direct, and immediate interest.

Scott appealed to this court, arguing that FT waived its objection to Scott’s standing by failing to object to, question, or raise Scott’s aggrieved status or standing until Scott filed his brief on the merits with the trial court, and that the trial court erred in finding that Scott was not aggrieved by FT’s variance.

Scott further argued that, by participating in the board hearing, he became an aggrieved party by the board’s decision. In particular, Scott cited S. of S. St. Neighborhood Ass’n v. Philadelphia Zoning Bd. of Adjustment and Thomson v. Zoning Hearing Bd. of Horsham Township, which determined that the issue of standing must be raised at the earliest possible moment, such as the board hearing, and that a party that participates in the board hearing without objection becomes aggrieved by an adverse decision.

In opposition, FT cited Spahn v. Zoning Bd. of Adjustment, which held that in order to have standing in zoning matters, a party must have a substantial interest in the matter, the interest must be direct, and the interest must be immediate.

The court found that S. of S. St. was the more analogous case, as Spahn did not decide when the issue of standing must be raised. Accordingly, the court held that FT waived the issue of Scott’s standing when it did not raise it before the board.