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O'Neill v. The Philadelphia Zoning Board of Adjustment

Commonwealth Court of Pennsylvania

August 30, 2017

Brian J. O'Neill, Appellant
The Philadelphia Zoning Board of Adjustment

          ARGUED: May 1, 2017




         Appellant Brian J. O'Neill (O'Neill), a Philadelphia City Councilman, appeals from the August 4, 2016 order of the Court of Common Pleas of Philadelphia County (trial court) affirming the Philadelphia Zoning Board of Adjustment's (Board) grant of a variance "per the revised plans" for a proposed residential development.[1] We quash O'Neill's appeal for lack of standing.[2]

         This case has a long history of court and agency proceedings and concerns a proposed residential development on property located at 9838-44 Legion Street, Philadelphia (Property). The Property lies in O'Neill's district.

         On September 18, 2003, applicant/appellee Land Endeavor O-2, Inc. (Land Endeavor) applied to the Philadelphia Department of Licenses & Inspections (L&I) for a zoning/use permit to erect two structures containing multiple single-family dwelling units. (Board's Findings of Fact (F.F.) No. 1.) The application proposed access to the dwellings by way of a shared driveway off of Legion Street.[3] L&I denied the permit and years of litigation ensued. (F.F. Nos. 2, 5.) Ultimately, on June 1, 2011, Land Endeavor returned to the Board for a hearing, along with protestant, West Torresdale Civic Association, and O'Neill. (F.F. No. 6, Certified Record (C.R.), 6/1/11 Notes of Testimony (N.T.) at 2, 27.) The Board instructed Land Endeavor to work with the community and come back at a later time. (See F.F. No. 6.)

         Subsequently, on February 4, 2015, the Board held a hearing, at which Land Endeavor presented a new development plan. (See F.F. Nos. 11-12.) The new plan reduced the number of dwelling units and still provided for access to the units by way of a shared driveway off of Legion Street (Revised Plans). (F.F. Nos. 12-14.) The Revised Plans were stamped by the City's Planning Commission and Streets Department, and had been given conceptual approval by the City's Water Department. (F.F. No. 16.) Although Land Endeavor had expected to present the Revised Plans as part of a universal settlement, O'Neill raised concerns to the Board. (F.F. No. 17.) O'Neill referred to the driveway as a "private street, " and asked the Board to require that the "street" itself and the water and sewer underneath it be built as if the "street" was a city street. (F.F. Nos. 18-19.) The Planning Commission representative testified that her agency had no objection to the development at this location. (F.F. No. 24.) The Board held its decision for further details regarding the water and sewer utilities and surfacing of the "street, " and Land Endeavor and O'Neill subsequently submitted letters regarding their positions. (F.F. Nos. 25-28.) On August 18, 2015, the Board granted the variance per the Revised Plans. (F.F. No. 29.)

         O'Neill appealed from the Board's decision to the trial court. Land Endeavor intervened to oppose the appeal. O'Neill argued that Land Endeavor failed to establish that it was entitled to a variance. Additionally, O'Neill argued that the Pennsylvania Supreme Court case of Zimmerman v. Zoning Board of Adjustment of City of Philadelphia, 654 A.2d 1054 (Pa. 1995) controlled, and that pursuant to Zimmerman, Land Endeavor first had to apply to the City for a street to be placed on the City plan before applying for a zoning variance due to lack of street frontage. In response, Land Endeavor argued, inter alia, that O'Neill lacked standing to appeal.

         The trial court ruled from the bench that O'Neill had standing and explained its reasoning. (Reproduced Record at 114a, 5/4/16 transcript at 10-11.) Subsequently, the trial court issued an order denying O'Neill's appeal on the merits and affirming the Board's decision. In its opinion in support of its order, the trial court stated that the Board reviewed all the relevant factors for a variance, and the trial court determined that the Board's decision was supported by substantial evidence. Additionally, the trial court ruled that Zimmerman was not controlling because it was factually distinguishable.

         O'Neill now appeals to this Court from the trial court's order. Before this Court, O'Neill argues that (i) the trial court erred in failing to find Zimmerman controlling; and (ii) the Board erred in granting the variance because the finding of hardship is not supported by substantial evidence and because Land Endeavor created the hardship. In response, in addition to refuting these arguments, Land Endeavor argues that O'Neill lacks standing to appeal the Board's decision.

         We will first address the threshold question of standing. A challenge to a party's standing raises a question of law subject to this Court's plenary, de novo review. Americans for Fair Treatment, Inc. v. Philadelphia Federation of Teachers, 150 A.3d 528 (Pa. Cmwlth. 2016).

         Land Endeavor argues that O'Neill does not have standing to appeal the Board's decision, either in his individual capacity or in his capacity as a City Council member. Land Endeavor argues that O'Neill is not personally aggrieved and does not have legislative standing.

         In response, O'Neill asserts that his standing to appeal is supported on three grounds: (i) section 17.1 of the First Class City Home Rule Act[4] (Home Rule Act); (ii) section 14-303(15)(b)(.1) of the Philadelphia Zoning Code (Code); and (iii) legislative standing. O'Neill contends that any one of these three grounds is sufficient to establish his standing, and he does not need to show that he is aggrieved by the Board's decision. (O'Neill's Reply Brief at 6.) O'Neill contends that in Philadelphia, it is customary for councilmembers to appeal zoning decisions. O'Neill points out that City councilmembers represent the community and its members and to deny standing to councilmembers would lock the courthouse doors to his constituents who cannot afford lawyers. He also points out that in ruling on the issue of standing, the trial court explained it would be "cumbersome" to the court to require City Council to pass a resolution authorizing the appeal before the trial court could adjudicate it. O'Neill also argues that he has legislative standing because the Board usurped City Council's authority to legislate for public streets and made an "end run" of the process by providing a private street by means of a variance.

         We will first address O'Neill's arguments that he has standing under the Home Rule Act and the Code.[5] These arguments involve an issue of statutory construction, which presents a pure question of law. See Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009). As such, our standard of review is de novo, and our scope of review is plenary. Id. Any issue involving the construction of a statute or ordinance must begin by focusing on the plain language. See Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b); Spahn; cf. Trojnacki v. Board of Supervisors Solebury Township, 842 A.2d 503 (Pa. Cmwlth. 2004) (stating that although the Statutory ...

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