Posted by: Patricia Salkin | April 2, 2014

PA Appeals Court Holds That a Failure to Object to Standing to Challenge Variance Before the Board Resulted in a Waiver of the Ability to Raise Standing as an Issue Before the Common Pleas Court

FT Holdings L.P. developed a condominium complex located at East Thompson and Columbia Avenue in the City of Philadelphia. On March 9, 2012, FT submitted an application for Zoning/Use Registration Permit on properties it owned. FT sought to relocate lot lines to consolidate and merge two lots (413 Moyer and 415 Moyer) into 1247 E. Columbia Avenue as part of a previously approved residential development, demolition of the all existing structures on 413 and 415 Moyer Street, erection of one four story residential structure containing nine residential dwelling units with accessory decks, green roofs, and bicycle storage, for a total of thirty-five residential units and one commercial unit with accessory parking for thirty-two vehicles, as previously approved. However, the City of Philadelphia, Department of Licenses and Inspections (L & I) denied the application pursuant to the Philadelphia Zoning Code (Code). FT appealed to the ZBA. During the appeal, an attorney for a third party neighbor, John 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 the requested, Scott appealed to the common pleas court where FT moved to quash 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.

Scott argued that he is aggrieved because: he has to drive by the project; he lives on the same block as the project; he doesn’t want to look at the project; the project is not within the character of the neighborhood, which he doesn’t want to turn into Brooklyn; and that Appellee [F.T.] did not show any hardship. FT did not object at the hearing to Scott’s comments.

The court found that Scott failed to establish any discernible effect that granting the variance would have on any claimed interests, and also failed to demonstrate a causal connection between granting the variance and the injury to any claimed interest. Accordingly, the court held that the appellant was not an aggrieved person and could not be held to have standing to appeal the ZBA’s [Board] decision.

Scott v City of Philadelphia Zoning Board of Adjustment, 2014 WL 1133286 (PA Commnwlth 3/21/2014)

The opinion can be accessed at:

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