1200 Byberry — Taxpayer Standing 682 A.2d 1 (Pa. Commw. 1996)

Scenic Philadelphia, Appellant v. Zoning Board of Adjustment of the City and County of Philadelphia and Revere National Corporation

Case History

April 21, 1994 – On appeal, the ZBA granted a variance allowing the erection of a billboard within 660 feet of proposed right-of-way lines.

Apr. 25, 1995 – Revere filed a motion to quash Scenic Philadelphia’s appeal on the grounds SCRUB had a lack of standing.

Dec. 7, 1995 – The court determined that Scenic Philadelphia 1) failed to make a record below as to how its interests differed from the common interests of all citizens in procuring obedience to the law; 2) failed to show how it might be harmed by a governmental decision to grant relief from a special restriction on outdoor advertising, as opposed to a general ban; and 3) owned no property near the proposed billboard.

Aug. 21, 1996 – The Commonwealth Court ruled that Scenic Philadelphia did indeed have standing to challenge the granting of the variance.

Facts

On February 25, 1993, Revere filed an application with L & I for permission to erect an outdoor advertising sign in a G-2 Industrial District where such signs are permitted. The Department rejected its application, however, because such signs are not permitted within 660 feet of right-of-way lines under Section 14-1604 of the Philadelphia Zoning Code. The right-of-way at issue here was proposed, but not yet “exercised.” In other words, no one knew precisely when Penn DOT would commence construction on the right-of-way.

On March 29, 1994, the ZBA held a hearing on Revere’s request for a variance from the 660-feet provision. Scenic Philadelphia opposed the application largely on aesthetic grounds. Also, an adjacent landowner testified as to how the billboard would negatively impact his property. Revere never objected to Scenic Philadelphia’s standing at the hearing. The ZBA granted the variance until either the right-of-way is exercised or five years pass, whichever occurs first.

Scenic Philadelphia appealed to the trial court from the ZBA’s grant of a variance. The caption of the notice of appeal to the trial court incorrectly lists Scenic Philadelphia as Appellant and the ZBA as Appellee. The “Zoning Board of Adjustment” is handwritten above a scratched out and typewritten Revere National Corporation. In response Revere filed a motion to quash Scenic Philadelphia’s appeal for lack of standing. The trial court granted Revere’s motion to quash Scenic Philadelphia’s challenge to the Board’s decision, holding that Scenic Philadelphia had no standing to attack the variance.

Issue

Whether Revere waived its opportunity to raise an issue as to Scenic Philadelphia’s standing because it failed to object before the ZBA?

Whether, due to Scenic Philadelphia’s defective notice of appeal to the trial court, we must remand for a determination of who the proper parties are on appeal?

Rule of Law

If an opposing party lacks standing, and the landowner fails to raise the issue of standing at the zoning board hearing, that landowner has waived the issue and the trial court lacks the authority to raise the issue sua sponte (“on its own”) because standing is not a matter of subject matter jurisdiction for the trial court.

Holding

The court held that because Revere failed to object to Scenic Philadelphia’s standing at the zoning board hearing, the issue was waived and the trial court’s sua sponte raising the issue did not preserve that issue on appeal. It also found that Philadelphia, Pa., Zoning Code § 14-1806(1), provided a broad standard for standing to appeal and that SCRUB did have standing to challenge the variance.

However, having found that there was an error in naming the proper parties on appeal, the court remanded the case back to the trial court for further a determination of who the proper parties should have been and whether the case caption was amendable.

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