In re City of Phila.

245 A.3d 346

IN RE: Appeal of CITY OF PHILADELPHIA

Property Address: 1314 Spring Garden St. Philadelphia PA 19103

Property Owner: Spring Garden Parking Association

Appeal of: City of Philadelphia

No. 419 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued September 17, 2020

Decided November 23, 2020

Reargument Denied January 7, 2021

Leonard F. Reuter, Philadelphia, for Appellant.

Glenn A. Weiner, Philadelphia, for Appellees Spring Garden Parking Association and JSF Spring Garden, LLC.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE J. ANDREW CROMPTON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY SENIOR JUDGE LEADBETTER

The City of Philadelphia appeals from an order of the Court of Common Pleas of Philadelphia County granting JSF Spring Garden, LLC's motion to quash the City's appeal from the decision of the City's Zoning Board of Adjustment (ZBA) granting JSF's application for a variance. In concluding that the City lacked standing, the trial court also dismissed the City's appeal, with prejudice. We reverse and remand this matter to the trial court for a decision on the merits of the City's appeal from the ZBA's decision.

Spring Garden Parking Association is the record owner of the subject property, located at 1314-1332 Spring Garden Street, Philadelphia, Pennsylvania, and designated as a "Center City Commercial Mixed-Use" zoning district. For over thirty years, the property served as a surface parking lot. (Aug. 23, 2019 Trial Court Op. at 1.) In June 2018, equitable owner JSF applied for a variance under the Philadelphia Zoning Code to demolish the structures located on the property and construct a seven-story building consisting of mixed retail and commercial storage uses contrary to the underlying zoning classification. (Id . at 1-2.) Additionally, the variance would permit JSF to deviate from the applicable dimensional requirements. The City's Department of Licenses and Inspections (L&I) refused the application.

Following JSF's appeal, the ZBA held a hearing at which witnesses in support of the project included JSF's president, an employee of JSF's parent company, an architect, a licensed professional planner, and a traffic engineer. Evidence in support of the project also included several petitions and letters, one of which was from the councilmember for the City Council district in which the property sits. (Id . at 2.)

In opposition to the project, a representative from the City Planning Commission, Paula Brumbelow Burns, appeared in person and informed the ZBA that the Commission's Civic Design Review Committee had not yet conducted a "civic design review" of the project.¹ The Zoning Code provides the following with respect to the sequencing of civic design review:

L&I shall not issue a final decision on an application for any development that meets the criteria in Table 14-304-2 until review by the Civic Design Review Committee has been completed pursuant to the procedures in this subsection; provided, however, that, upon request of an applicant, L&I shall promptly issue any refusal or referral, without awaiting completion of review by the ... Committee. Where L&I issues a refusal or referral on an application for a development that meets the criteria ... and the applicant files an appeal to the [ZBA] pursuant to § 14-303(15), the [ZBA] shall not commence a hearing on the application until review by the ... Committee has been completed pursuant to the procedures in this subsection.

(Section 14-304(5)(b)(.1)(.b) of the Zoning Code.)

In asserting the Commission's opposition to the project, Burns stated:

Chairman and Members of the Board, this property is indicated for Commercial use on the Comprehensive Plan. The Central District Plan specifically recommended that this property be used to the full extent of CMX[-]4 District [Center City Commercial Mixed-Use District] and create a vibrant mixed[-]use corridor.

This intersection has several transit lines creating the potential for a Transit Oriented Development District, which the Central District commented on. We feel that this application does not meet the spirit of the district or the goals of the Phila[.] 2035 plans.^[2] Additionally this applicant has yet to participate in the CDR [civic design review] process. Accordingly, we recommend the requested variance not be granted.

(Oct. 3, 2018 ZBA Hearing, Notes of Testimony "N.T." at 52-53; Reproduced Record "R.R." at 107a-08a) (footnote added).

At the conclusion of the hearing, the ZBA unanimously granted, with proviso, JSF's application for a variance.³ The City appealed to the trial court,⁴ listing "City of Philadelphia" as the appellant. (Oct. 18, 2018 Appeal to Trial Court; R.R. at 6a.) In the interim, JSF appeared before the Commission to complete the "civic design review." Subsequently, JSF filed a motion to quash the City's appeal for lack of standing, averring that no one appeared on behalf of either City Council or the City at the zoning hearing. (Dec. 31, 2018 Motion to Quash, ¶18; R.R. at 19a.) The trial court granted JSF's motion and dismissed the City's appeal with prejudice, determining that the City lacked standing to bring the appeal and that it waived any right to bring an appeal by failing to appear at the hearing. In so doing, the trial court engaged in an in-depth analysis of the City's alleged lack of procedural and substantive standing and Burns’ alleged inadequacy as a legal representative of the City authorized to voice formal opposition to the application for variance. The City's appeal to this Court followed.

On appeal, the City presents the following issues: (1) whether the trial court erred in determining that the City lacked procedural standing where a representative of the City appeared at the ZBA hearing and testified against granting the variance; and (2) whether the trial court erred in determining that the City lacked substantive standing where a representative of the Commission appeared and testified that the variance would undermine the goals of the City's Comprehensive Plan.⁵ In addressing these issues, we note generally that one must have procedural standing in order to be a party to a zoning hearing (e.g. , asserted a right to participate sufficiently early) and substantive standing (e.g. , possess a sufficient interest in the outcome of the litigation to be allowed to participate). Worthington v. Mount Pleasant Twp ., 212 A.3d 582, 590 (Pa. Cmwlth. 2019). However, there is nothing in the applicable statutes, the City's Zoning Code, or case law suggesting that there is a "procedural standing" rule in Philadelphia.

Both the First Class City Home Rule Act (Home Rule Act)⁶ and Chapter 14 of the City's Zoning Code govern zoning in the City. Scott v. City of Phila., Zoning Bd. of Adjustment , 633 Pa. 517, 534, 126 A.3d 938, 948 (2015) ; Plaxton v. Zoning Bd. of Adjustment , 213 A.3d 374, 378 (Pa. Cmwlth. 2019). Pursuant to Section 17.1 of the Home Rule Act,⁷ municipalities adopting a home rule charter "shall have and may exercise all powers and authority of local self government and shall have complete powers of legislation and administration in relation to its municipal functions." 53 P.S. § 13131.1. Section 1-100 of the Philadelphia Home Rule Charter provides: "The City shall have the power to enact ordinances and make rules and regulations necessary and proper for carrying into execution its powers; and such ordinances, rules and regulations may be made enforceable ...." (Section 1-100 of the Charter.) Accordingly, the Zoning Code was "enacted pursuant to the powers granted and limitations of the [Charter]." (Section 14-103 of the Zoning Code.)

In contrast to the Pennsylvania Municipalities Planning Code (MPC),⁸ the Zoning Code neither provides a definition of who is a party nor limits who may appear and participate in a zoning hearing.⁹ Scott , 126 A.3d at 948. However, Section 14-303(15)(a)(.1) of the Zoning Code provides:

(a) Appeals to [ZBA].

(.1) Any final order, requirement, decision, or determination made by L&I pursuant to this Zoning Code may be appealed to the [ZBA] by any person or organization affected by the decision or by any department or agency of the City.

(Section 14-303(15)(a)(.1) of the Zoning Code.) Additionally, "[i]n all public hearings before the [ZBA], any agency of the City shall have the power to appear and to present facts and information to assist the [ZBA] in reaching a decision." (Section 14-303(14)(k) of the Zoning Code.)

As for who may appeal from the ZBA to the trial court, our Supreme Court has held that the MPC's standing rules do not apply. Scott , 126 A.3d at 939-40. Consequently, our focus here is on the standing provisions found in the Home Rule Act and the Zoning Code. The plain language of Section 17.1 of the Home Rule Act limits standing to two classes—aggrieved persons and the governing body. Spahn v. Zoning Bd. of Adjustment , 602 Pa. 83, 101, 977 A.2d 1132, 1143 (2009). Section 17.1 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. In turn, the Zoning Code's standing provision provides:

(b) Appeals to the Courts.

(.1) A final decision made by the [ZBA] 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 [Section 17.1 of the Home Rule Act] ... within 30 days of the decision or such other time as may be provided by law.

(Section 14-303(15)(b)(.1) of the Zoning Code) (emphasis added).

As the Supreme Court observed, "[t]he...