Scenic Phila.v.Phila. Zoning Bd. of Adjustment

COMMONWEALTH COURT OF PENNSYLVANIAApr 17, 2015
No. 324 C.D. 2014 (Pa. Cmmw. Ct. Apr. 17, 2015)

No. 324 C.D. 2014

04-17-2015

Scenic Philadelphia, Appellant v. Philadelphia Zoning Board of Adjustment and H.A. Steen Industries, Inc.


BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER

Scenic Philadelphia (Objector) appeals from the February 6, 2014 Order of the Court of Common Pleas of Philadelphia County (trial court) denying, for lack of standing, Objector's appeal from a Decision of the Philadelphia Zoning Board of Adjustment (ZBA). Objector's appeal to the trial court challenged the ZBA's denial of its appeal of the Philadelphia Department of Licenses and Inspection's (L&I) issuance of a zoning permit (Permit) to H.A. Steen Industries, Inc. (Applicant) to erect a double-faced digital monopole outdoor advertising sign. On appeal, Objector argues that (1) the trial court erred in determining that Objector lacked standing; (2) the ZBA was without authority to issue a corrected Decision; and (3) the ZBA's Decision is not supported by the record. Because we agree that under current Supreme Court jurisprudence Objector lacked standing, we affirm the trial court's Order.

On January 13, 2012, L&I issued Applicant its "Permit for the erection of one double faced digital" 14 foot by 48 foot "monopole outdoor advertising sign" with a total height of 96 feet at 3144 W. Passyunk Avenue (Property), on the same lot as an oil refinery and where another billboard had been previously located. (ZBA Decision, Findings of Fact (FOF) ¶ 1; ZBA Decision at 1.) On January 26, 2012, Objector appealed L&I's issuance of the Permit. (FOF ¶ 2.) According to its Petition of Appeal, Objector appealed the issuance of the Permit because the signage section for the revised Philadelphia Zoning and Planning Code (Zoning Code) had not yet been created and the best practices for large digital signs "'should be determined before this new double faced, 96 foot digital sign is erected.'" (FOF ¶ 3 (quoting Petition of Appeal).)

The Zoning Code, as set forth in Title 14 of The Philadelphia Code, was repealed and reenacted effective August 22, 2012. Because this action commenced January 26, 2012, the previous version of the Zoning Code governs this appeal.

On March 14, 2012, the ZBA conducted a public hearing on the appeal. (FOF ¶ 4.) The ZBA framed the issues before it as "whether L&I (i) followed the proper procedures in reviewing the application for the sign at issue; [and] (ii) properly issued the Permit." (FOF ¶ 5.) At the hearing, counsel before the ZBA included Samuel Stretton and Stephanie Kindt for Objector, Leslie Gerstein for Applicant, and Andrew Ross for the City of Philadelphia (City). (FOF ¶ 6.) At the beginning of the hearing Mr. Stretton submitted an exhibit package to the ZBA, which included notarized Letters of Engagement of several members belonging to Objector's organization. (FOF ¶ 7.) Ms. Kindt also testified on behalf of Objector. (FOF ¶ 13.) Objector presented the testimony of Ms. Kindt to establish why Objector's appeal to the ZBA did not include certain allegations of error on the part of L&I in issuing the Permit. (ZBA Hr'g Tr. at 19, R.R. at 57.) Ms. Gerstein submitted a memo to the ZBA on behalf of Applicant challenging Objector's standing as well as the merits of the appeal. (FOF ¶ 7.) The City and Applicant also challenged Objector's standing at the hearing. (FOF ¶ 8.) Neither the City nor Applicant presented the sworn testimony of any witnesses.

The Letters of Engagement demonstrate an agreement between Objector and its members under which Objector will provide legal representation for its members. (Letters of Engagement, R.R. 189-93.) The Letters of Engagement are signed and notarized by Objector's members. (Letters of Engagement, R.R. 189-93.)

At the hearing, Mr. Stretton argued that L&I should not have issued the Permit for the following reasons: the proposed sign would be too high; a similar sign was not removed prior to the issuance of the Permit, as required by the Zoning Code; and the proposed sign would be too close to a bridge crossing the Schuylkill River. (FOF ¶ 9.) In contrast, Mr. Ross asserted that L&I had properly reviewed Applicant's application and that the proposed sign met all Zoning Code requirements. (FOF ¶¶ 10-12.)

Following the hearing, the ZBA issued a Notice of Decision on April 10, 2012, sustaining the appeal by Objector. Subsequently, Applicant appealed to the trial court. According to the ZBA, the Notice of Decision was incorrectly drafted and did not accurately reflect the votes of the ZBA members, and on February 4, 2013 the ZBA issued a corrected Notice of Decision denying the appeal. Consequently, Applicant discontinued its appeal from the ZBA's April 10, 2012 Decision.

In support of the denial of Objector's appeal, the ZBA noted that, "[t]here is a presumption that municipal officers perform their duties properly and take steps necessary to give validity to their official acts." (ZBA Decision, Conclusions of Law (COL) ¶ 3.) Moreover, the ZBA determined that the "presumption of official propriety is conclusive" unless it is "rebutted by affirmative evidence of irregularity." (COL ¶ 4.) The ZBA accepted as credible and persuasive Mr. Ross's statements "on behalf of L&I that not only did L&I have a process in place to review the request for the Permit, but that the application at issue . . . complied with those requirements." (COL ¶ 5.)

Accordingly, the ZBA concluded that Objector "failed to present sufficient affirmative evidence of irregularity by L&I and did not meet [its] burden of proof." (COL ¶ 6.) In addition, the ZBA determined that L&I properly performed its duties and took the necessary steps to issue a valid Permit. (COL ¶ 7.) The ZBA concluded that it had properly denied the appeal. (COL ¶ 8.)

Objector appealed the ZBA's corrected Decision to the trial court and Applicant filed a praecipe to intervene. After hearing the parties' arguments on January 29, 2014, the trial court denied the appeal due to Objector's lack of standing. On April 25, 2014, the trial court issued its 1925(a) Opinion.

Applicant also filed a Motion to Quash Objector's appeal based on lack of standing. (Trial Ct. Op. at 3.) The trial court denied Applicant's Motion to Quash on November 7, 2013. (Trial Ct. Op. at 3.)

In its Opinion, the trial court concluded that the main issue before it was whether Objector had standing to contest L&I's issuance of the Permit. (Trial Ct. Op. at 4.) The trial court noted that, although standing cannot be addressed sua sponte, Applicant timely objected to Objector's standing at the ZBA hearing. (Trial Ct. Op. at 6-7.) The trial court determined that Objector did not present any evidence that it was aggrieved as an organization by the Permit's issuance. (Trial Ct. Op. at 7.) In particular, the trial court determined that the Letters of Engagement signed by Objector's members were "entirely devoid of any information regarding these members' specific Permit related grievances, serving only as evidence that they had authorized [Objector] to represent them before the ZBA." (Trial Ct. Op. at 7 (emphasis in original).) The trial court noted that none of the supposed aggrieved members participated in the ZBA hearing and that the "letters fall far short of establishing that these individuals were aggrieved parties." (Trial Ct. Op. at 7 (emphasis in original).) Since none of the members had standing the trial court concluded that, under Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009), Objector, as an organization, also did not establish its standing to appeal the issuance of the Permit. (Trial Ct. Op. at 7.)

The trial court, however, also addressed the ZBA's corrected Decision, noting that "the ZBA voted 3-2 in favor of denying [Objector]'s appeal and upheld L&I's decision to issue the Permit." (Trial Ct. Op. at 3.) The trial court found that, because of an "administrative/clerical error, the ZBA reported its decision on April 10, 2012 as having been one vote in favor of" Objector and that Applicant was unaware of the clerical error when it initially appealed to the trial court. (Trial Ct. Op. at 3.) The trial court determined that the ZBA's corrected February 4, 2013 Decision "accurately reflected the [ZBA]'s denial of [Objector]'s appeal." (Trial Ct. Op. at 3.)

On appeal, Objector argues that (1) the trial court erred in determining that Objector lacked standing; (2) the ZBA was without authority to change the disposition of its initial opinion after more than thirty days had passed and the case was already on appeal to the trial court; and (3) the ZBA erred in affirming the Permit for the proposed sign since there was no evidence presented and no hardship shown. We shall first address whether Objector lacked standing to appeal the issuance of the Permit.

Our review in a zoning case, where the trial court has taken no additional evidence, "is limited to determining whether the [ZBA] committed a manifest abuse of discretion or an error of law." Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). The ZBA will be found to have "abused its discretion only if its findings are not supported by substantial evidence[,] . . . mean[ing] such relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Id. at 640.

In order for an appellant to have standing to appeal a determination of the ZBA, they must demonstrate that they are an "aggrieved person." Spahn, 977 A.2d at 1149. For a party to be "aggrieved," the party must show an interest that is "substantial, direct, and immediate." Id. (citing William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975)). For an interest to qualify as "substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of proceedings." Id. at 1151; see also William Penn, 346 A.2d at 280-81 (noting that "it is not sufficient for the person claiming to be 'aggrieved' to assert the common interest of all citizens in procuring obedience to the law"). An interest is direct where the party demonstrates "some causation of harm to his interest." Spahn, 977 A.2d at 1151. In order for an interest to be considered "immediate, there must be a causal connection between the action complained of and the injury to the person challenging it." Id. Therefore, to meet the three requirements for an aggrieved party, the party must demonstrate that the challenged action personally harms his or her interest in a way that is greater than that of another citizen. Id. at 1151-52.

Objector argues it has standing as an organization to challenge the ZBA's granting of the Permit. Objector is an organization that has been active since the 1980s in drafting billboard legislation and opposing illegal billboards. Because Objector's mission is to improve the quality of life in Philadelphia and prevent illegal billboards, it maintains it has standing to challenge the ZBA's granting of the Permit based on this Court's decisions in Society Hill Civic Association v. Philadelphia Board of License & Inspection Review, 905 A.2d 579 (Pa. Cmwlth. 2006), and Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment of City of Pittsburgh, 604 A.2d 298 (Pa. Cmwlth. 1992). Moreover, during the hearing, Objector presented Letters of Engagement and affidavits of five of its members. Objector contends that all of these members reside adjacent to the Property where the proposed sign would be located and could see it at night. Consequently, Objector asserts that it also has standing based on where its members live in relation to the proposed sign.

In Pittsburgh Trust, both the Pittsburgh Cultural Trust (Trust) and Penn-Liberty Association (Penn-Liberty) contested the Pittsburgh ZBA's granting of a special exception and variances allowing the applicant to open an amusement arcade in the Penn-Liberty historic district of downtown Pittsburgh. Pittsburgh Trust, 604 A.2d at 300. The applicant challenged the standing of the Trust and Penn-Liberty. Id. at 301. In assessing whether the Trust had standing, this Court considered the fact that the Trust was headquartered at the Benedum Center in the Penn-Liberty historic district; had made "a substantial financial investment in the Penn-Liberty history district," and also had a "fundamental commitment [to] nurturing cultural activity in [the] area" of the proposed arcade. Id. at 304. Because the proposed arcade would be located within 200 feet of the Benedum Center, we concluded that the Trust was sufficiently aggrieved to have standing. Id. As for Penn-Liberty, we determined that for an association to have standing, "it must be alleged that at least one of the association's members has or will suffer a direct, immediate and substantial injury to an interest as a result of the challenged action." Id. (quotation omitted). Because Penn-Liberty comprised approximately 60 dues paying property owners in the Penn-Liberty area who all had a "substantial, direct and immediate interest in maintaining the integrity of [the] historic district and in encouraging upscale commercial establishments that w[ould] be adversely impacted by an amusement arcade," we determined that Penn-Liberty also had standing. Id.

Similarly, in Society Hill, the Society Hill Civic Association (Society Hill) challenged L&I's decision to uphold a decision of the Philadelphia Historical Commission allowing a property owner "to reconstruct marble cornices with fiberglass on the facades of certain historically designated properties located in the Society Hill section of Philadelphia." Society Hill, 905 A.2d at 581. The property owner contended that Society Hill lacked standing. Id. at 585. Because Society Hill's purpose was to promote the preservation and restoration of historic buildings, included over 900 dues paying members dedicated to protecting historic buildings, and had actively negotiated with the property owner over the preservation of several townhouses, this Court concluded that Society Hill had standing to appeal. Id. at 586.

In Spahn, both this Court and our Supreme Court clarified our holdings from Pittsburgh Trust and Society Hill. In Spahn, our Supreme Court consolidated three separate appeals from this Court involving, inter alia, standing in zoning cases. Spahn, 977 A.2d 1132. In the third consolidated case in Spahn, Society Created to Reduce Urban Blight (Objector's predecessor, hereinafter "SCRUB"), several other organizations, and several individuals appealed the ZBA's granting of a variance to Keystone Outdoor Advertising to erect a 2400 square foot billboard. Id. at 1139-40. In its appeal, SCRUB argued it had organizational standing based on Society Hill and Pittsburgh Trust. Spahn, 977 A.2d at 1150. On appeal to this Court, we held that "neither Society Hill . . . nor Pittsburgh Trust stands for the proposition that a civic group must be granted standing in any zoning litigation involving the mission of that group, no matter how remote the impact." Society Created to Reduce Urban Blight (SCRUB) v. Zoning Hearing Board of Adjustment of City of Philadelphia, 951 A.2d 398, 402 (Pa. Cmwlth. 2008). Because SCRUB "fail[ed] to show or allege any interest beyond the common interest of all citizens in procuring obedience to the law," we determined it lacked standing. Id. at 403.

SCRUB also argued that it had standing because its members' residences were in the general area of the proposed billboard. Id. at 403-04. We noted that "the distance between [an objector's] property interest and the property subject to the challenged zoning decision can be critical because proximity of the properties may be sufficient to establish a perceivable adverse impact." Id. at 404. We further concluded that "an adjoining property owner, who testifies in opposition to a zoning application before" the ZBA, "has sufficient interest in the adjudication to have standing." Id. However, we also determined that "absent an assertion of a particular harm," an objector without a property interest in the immediate vicinity does not have standing. Id. Thus, because none of SCRUB's members lived in the immediate area of the proposed billboard, had businesses there, or demonstrated that they would be adversely affected by the ZBA's decision, we determined that SCRUB did not have standing based on its own members' standing. Id.

On appeal from this Court's decision, our Supreme Court adopted the reasoning of this Court regarding SCRUB's failure to establish standing, determining that SCRUB's interest was no "greater than any other citizen of Philadelphia." Spahn, 977 A.2d at 1152. The Supreme Court determined further that although SCRUB's mission to enforce the Zoning Code, oppose "illegal billboards, and foster community development" was laudable, it was "no different from the abstract interest that all citizens have in the outcome of the proceedings." Id. In addition, the Supreme Court concluded that Society Hill and Pittsburgh Trust were factually distinguishable from SCRUB's situation. Spahn, 977 A.2d at 1152. Specifically, the Supreme Court noted that unlike Society Hill, where the organization was intimately involved in preservation negotiations and participated in public hearings, and Pittsburgh Trust, where the organization had made significant investments and whose offices were within 200 feet of the proposed arcade, SCRUB had not demonstrated that it was aggrieved. Spahn, 977 A.2d at 1152. With respect to whether SCRUB had standing based on its members' residences, the Supreme Court concluded that the members were not aggrieved because they did not live in the vicinity of the proposed billboard but, rather, lived over a mile away. Id.

Here, Objector did not establish that it has standing as an organization to oppose the ZBA's affirmance of L&I's issuance of the Permit. As our Supreme Court held in Spahn, Objector cannot establish standing simply by virtue of its organizational purpose. As laudable as Scenic Philadelphia's mission may be, this interest is no different than "the abstract interest that all citizens have" in ensuring obedience to zoning laws. Spahn, 977 A.2d at 1152; SCRUB, 951 A.2d at 402. Moreover, although Objector relies on Society Hill and Pittsburgh Trust to argue that it has standing, as we noted in SCRUB, those cases do not stand for the proposition that organizations are granted standing whenever the mission of the organization is implicated. SCRUB, 951 A.2d at 402. Unlike Society Hill, Objector has not been involved with negotiations with Applicant over the preservation of the area of the Property. Further, in contrast to Pittsburgh Trust, Objector has neither alleged that it has significant investments in the Property area nor presented evidence to demonstrate that its offices or members are located in the immediate vicinity of the proposed sign. Therefore, under Spahn, Objector does not have standing arising from its organizational purpose to oppose illegal billboards.

In addition, although organizations such as Objector can establish standing based on their members' own standing, Pittsburgh Trust, 604 A.2d at 304, in the instant case Objector did not establish that any of its members are aggrieved. Objector specifically argues that its members have standing because they live adjacent to the proposed sign. Under SCRUB, a member living in the "immediate vicinity" of the Property or asserting a particular harm resulting from the proposed sign would have standing to appeal the ZBA's decision. SCRUB, 951 A.2d at 404. However, the record is devoid of any evidence to demonstrate where Objector's members live in relation to the Property or that they will otherwise be adversely affected by the proposed sign. In fact, none of Objector's members appeared and testified at the ZBA hearing to voice their objections to the proposed sign. Because Objector did not demonstrate that its members have an interest in the Permit that is "substantial, direct and immediate," Objector does not have standing to pursue an appeal on their behalf. Spahn, 977 A.2d at 1149. Thus, Objector has not established standing under any of its various arguments.

While Objector specifically points to the Letters of Engagement as evidence that its members live in the area of the proposed sign, there is nothing in the Letters of Engagement to indicate where the members live. (Letters of Engagement, R.R. 189-93.) Objector also argues that its members will be able to see the proposed sign at night, yet there is no evidence in the record to substantiate this claim.

Because Objector has not established standing, we do not reach its other arguments raised in this appeal. --------

Accordingly, for the foregoing reasons, we are constrained to affirm the Order of the trial court.

/s/ _________


RENÉE COHN JUBELIRER
, Judge ORDER

NOW, April 17, 2015, the Order of the Court of Common Pleas of Philadelphia County, entered in the above captioned matter, is AFFIRMED.

/s/ _________


RENÉE COHN JUBELIRER
, Judge