Food Distribution District — 729 A.2d 117 (Pa. Commw. 1999)

Scenic Philadelphia, Philadelphia Industrial Development Corporation Food Distribution Center, Inc. (PIDC-FDC, Inc.), Center City Residents Association, Mary Tracy, Judith Eden v. Zoning Board of Adjustment of the City of Philadelphia, Joseph G. Procacci, Procacci Brothers Sales Corporation

Case History

1) Scenic Philadelphia appealed to the Commonwealth Court, which determined that Philadelphia laws allow any taxpayer to have standing in such a case. SCRUB appealed to the Court of Common Pleas to overturn, but the ruling was upheld.

2) The Zoning Board quashed the protestor’s appeal on the basis that SCRUB did not prove that they were particularly aggrieved by the granting of the variance.

3) Scenic Philadelphia protested the granting of a variance made by the Zoning Board of Adjustment that allow billboards in the Food Distribution Center.

Facts

In December 1996, Landowner applied to L & I for zoning and use permits to erect and use one freestanding, double-faced, non-accessory outdoor advertising sign at 3051 South Front Street a/k/a 3305 Packer Avenue; erect and maintain one freestanding, non-accessory, illuminated sign at 3655-61 Lawrence Street; and erect and maintain two (2) freestanding, non-accessory, double-faced, illuminated V-shaped signs at 3333 South Front Street a/k/a 50 Packer Avenue.

L & I denied all of Landowner’s applications because the dimensions of the signs did not conform to the requirements of Section 14-604 of the Philadelphia Zoning Code (Code), and outdoor advertising signs were prohibited in the FDC district pursuant to Section 14-608(1)(a) of the Code. Landowner appealed to the Board and sought a variance to erect the signs.

In support of its request for a variance, Landowner presented witnesses who testified that erecting the signs would allow Landowner’s property to be fully utilized by allowing it to receive income from sign rentals and that the signs would not be detrimental to the health, safety and welfare of the FDC district or any other area.

Scenic Philadelphia testified in opposition to Landowner’s request for a variance. Landowner objected to their participation, either individually or as representatives of their organization, because neither they nor their organizations had any tangible connection to the area where the signs were to be erected. The Board, however, allowed them to testify. The essence of Tracy’s and Eden’s testimony was that Landowner had failed to demonstrate the requisite hardship necessary for the Board to grant it a variance. The Philadelphia Planning Commission also appeared before the Board and submitted a letter into evidence strongly recommending that the Board deny the variances. Philadelphia City Councilman Cohen, Councilwoman Fernandez and Sharing, and commerce bank also submitted letters of opposition.

Based on the testimony presented, the Board granted Landowner’s request for a variance to erect the signs finding that the requisite showing of undue hardship had been demonstrated and that all of the criteria under Section 14-1802(1) of the Code required to establish entitlement to a variance had been met. The Board also found that none of the Protestors had established their standing to oppose the grant of the variance because they did not demonstrate a substantial, direct and immediate interest in the matter. Protestors appealed the Board’s decision to the trial court, which quashed their appeal. In quashing Protestors’ appeal, the trial court found they had failed to demonstrate that they were specifically and particularly harmed or aggrieved by the granting of the variance because they did not live or represent anyone living in the vicinity of the proposed signs. This appeal followed.

Issue

Whether the trial court erred in quashing Protestors’ appeal based upon a lack of standing because the Board determined that they were not proper parties?

Rule of Law

Any person or persons jointly or severally aggrieved by any decision of the Board or any taxpayer . . . may present to a Court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part, specifying the ground for that illegality.

Holding

Generally, persons having no real interest in a dispute are not considered to have standing to become parties to a proceeding, and zoning cases are no exception to this general rule. In most areas of the state, standing to become a “party” to oppose a variance sought by a property owner is governed by Section 908(3) of the Pennsylvania Municipalities Planning Code (MPC), which sets forth who is entitled to become a “party” before the Board and, necessarily, appeal any adverse determination. Section 908(3) provides that:

The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board.

To be considered a “person aggrieved”, the person seeking to be a party before the Board is usually a business owner or property owner within the vicinity of the requested variance.

However, the provisions of the MPC, including Section 908(3), do not govern Philadelphia. The corresponding provision governing the standard for Philadelphia is contained in Section 14-1806(1) of the Code, which sets forth those that have standing to take an appeal from a decision of the Board and, necessarily, those who are to be considered parties before the Board. It provides a rather broad standard to be considered a party with standing to participate in proceedings before the Board or to have standing to appeal an adverse decision to the trial court.

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