Brian J. O'Neill, Appellant
The Philadelphia Zoning Board of Adjustment
ARGUED: May 1, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, JULIA K. HEARTHWAY, JAMES
GARDNER COLINS, Senior Judge.
K. HEARTHWAY, JUDGE.
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. We quash
O'Neill's appeal for lack of standing.
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.
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. 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.)
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.
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.
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.
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.
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).
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.
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 (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
first address O'Neill's arguments that he has
standing under the Home Rule Act and the Code. 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 ...