High Court Clarifies Standing Requirements Before Zoning Bodies

December 29, 2015

On Oct. 29, the Pennsylvania Supreme Court rendered a decision in Scott v. City of Philadelphia, 2015 Pa. LEXIS 2510 (Pa. 2015), clarifying the difference in the law related to standing before a zoning hearing board governed by the Pennsylvania Municipalities Planning Code, 53 P.S. Section 10101 et seq., (MPC) and standing before a zoning board of adjustment governed by the Pennsylvania First Class City (i.e., Philadelphia) Home Rule Act, 53 P.S. Section 13131.1, ("Home Rule Act). Attention to the intricacies of the law governing standing is critical because a failure to challenge an objector's standing at the appropriate stage of a proceeding can result in the use of an applicant's property being interrupted or prevented by an objector who may not be directly impacted by that use.

The law regulating standing to appear before, present evidence to, and thereafter appeal a decision from a zoning hearing board governed by the MPC differs at each stage of a proceeding. First, standing to initiate an appeal to a zoning hearing board is limited by Section 913.3 of the MPC to: (1) affected landowners; (2) officers or agencies of the municipality; and (3) persons aggrieved. Once an appeal is filed, standing to appear before the board (i.e., standing to respond to and present evidence, advance arguments and cross-examine adverse witnesses on all relevant issues) is limited by Section 908(3) of the MPC to "parties," which are defined as: the municipality; any person affected by the application who has made timely appearances of record before the zoning hearing board; and any other person, including civic or community organizations, permitted to appear before the board. Once a person becomes a party before a zoning hearing board without objection by the applicant, the person is considered "necessarily aggrieved" by an adverse decision of the board and is entitled to appeal the board's decision to court.

In stark contrast to the MPC, the Home Rule Act does not limit who may bring, attend and participate in a hearing before the Philadelphia Zoning Board of Adjustment (ZBA). Thus, unlike hearings under the MPC, once an appeal is brought before the ZBA, anyone is free to attend and address the board during a hearing (i.e., anyone is free to respond to and present evidence, advance arguments and cross-examine adverse witnesses on all relevant issues). Standing only becomes relevant in a hearing governed by the Home Rule Act when a decision of the ZBA is appealed to court. Pursuant to Section 17.1 of the Home Rule Act, only persons aggrieved by a ZBA decision have standing to appeal the decision to court.

Pennsylvania courts have explained, in instances under both the MPC and the Home Rule Act, that to establish "aggrieved" status for purposes of standing, a party must have a substantial, direct and immediate interest in the claim sought to be litigated, as held in Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa.Cmwlth.2009). In order to have a substantial interest, there must be some discernible adverse effect to some immediate interest other than the abstract interest of all citizens in having others comply with the law, as in Pilchesky v. Doherty, 941 A.2d 95 (Pa.Cmwlth.2008). Accordingly, courts have deemed persons to be aggrieved where they have suffered or will suffer "injury in fact," as in William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975).

The facts underlying the Scott decision illustrate the confusion that arises when analyzing the law regarding standing before a zoning hearing board versus a ZBA. In Scott, FT Holdings, a developer who was in the process of developing a three-phase residential condominium complex in Philadelphia, submitted a zoning/use permit application to the Philadelphia Department of Licenses and Inspections seeking various approvals necessary to implement the third phase of its development. Specifically, the developer sought approval to relocate, consolidate and merge various lot lines associated with three adjacent lots; demolish existing structures on two of these three lots; and erect a four-story residential structure on the lots. Despite the developer's receipt of all necessary approvals for the first two phases of the development, the Department of Licenses and Inspections denied the developer's application for phase three on the basis that the proposed residential structure violated several provisions of the Philadelphia Zoning Code.

The developer appealed the Department of Licenses and Inspections' denial to the ZBA and, in conjunction therewith, requested the appropriate variances. The ZBA held a hearing on the request, during which a property owner, through his legal counsel, objected to the approval of the developer's request, asserting that the developer had failed to establish undue hardship sufficient to warrant a variance; the proposed residential structure did not conform to the character of the neighborhood; there would be less light on the street once the proposed residential structure was built; and the proposed structure would create traffic and parking issues. The ZBA, finding no merit in the objector's unsubstantiated assertions, granted the requested variances.

The objector next appealed the ZBA's decision to the trial court. The developer intervened and moved to quash the appeal on the basis that the objector lacked standing. Specifically, the developer argued, among other things, that the objector was not aggrieved by the ZBA's decision as required by Section 17.1 of the Home Rule Act and thus lacked standing to challenge the decision on appeal; the objector presented no evidence that his interest would be affected by the proposed development; and the objector's concerns were general to the neighborhood and did not demonstrate any negative impact on him in particular. In response, the objector argued that the developer waived any right to challenge standing before the trial court because it did not challenge the objector's standing before the ZBA. Finding the objector's argument unpersuasive, the trial court quashed the appeal. The objector appealed to the Commonwealth Court, which reversed. In doing so, the Commonwealth Court, relying upon precedent established under the MPC, explained that challenges to an objector's standing must be raised before a ZBA or are otherwise waived. Thus, the Commonwealth Court concluded that the trial court should have heard the merits of the objector's appeal.

The Pennsylvania Supreme Court granted the developer's petition for allowance of appeal and reversed the Commonwealth Court's ruling, concluding that the developer properly raised its challenge to standing, for the first time, before the trial court. In reaching this decision, the court thoroughly analyzed the statutory and precedential authority applicable to proceedings before and appeals from zoning hearing boards governed by the MPC versus the ZBA governed by the Home Rule Act. Emphasizing the vast difference between the law applicable to each type of board, the court held that, pursuant to the Home Rule Act, the objector's ability to appear and participate before the ZBA is separate and distinct from the objector's standing to appeal the ZBA's decision to court. Thus, the court concluded that the first time that the developer was able to challenge the objector's standing was before the trial court. The Scott decision is significant in that it clearly articulates the difference in the law of standing before a zoning hearing board governed by the MPC versus the ZBA. In addition, the court in Scott clarified that, due to the MPC's express restrictions on standing before a zoning hearing board, applicants before a zoning hearing board governed by the MPC must first challenge an objector's standing before the board. Failure to do so constitutes a waiver of such a challenge and subjects the applicant to a court appeal by an objector who may not be directly impacted by the applicant's use of the property. Conversely, in light of the Home Rule Act's silence on standing before the ZBA, applicants are not required to challenge an objector's standing before the ZBA, but rather may raise such a challenge, for the first time, on appeal to court. 

Blaine A. Lucas is a shareholder and Alyssa E. Golfieri an associate in the Public Sector Services and Energy and Natural Resources Groups of the Pittsburgh law firm of Babst, Calland, Clements & Zomnir. In these capacities, Lucas coordinates the firm's representation of energy clients on land use and other local regulatory matters. He also teaches land use law at the University of Pittsburgh School of Law. Golfieri focuses her practice on zoning, subdivision, land development, taxation, real estate, code enforcement, public bidding, and contracting matters.