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Liberties Lofts LLC v. Zoning Board of Adjustment

Commonwealth Court of Pennsylvania

April 2, 2018

Liberties Lofts LLC, Appellant
v.
Zoning Board of Adjustment

          Argued: March 8, 2018

          BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          ROBERT SIMPSON, Judge

         In this zoning appeal, Liberties Lofts LLC (Objector) asks whether the Court of Common Pleas of Philadelphia County[1] (trial court) erred in affirming a decision of the Philadelphia Zoning Board of Adjustment (ZBA) that granted a use variance to Hightop Brown, LLC (Applicant) to permit construction of a 26-unit multi-family residence with one commercial space in an ICMX Industrial Commercial Mixed-Use Zoning District in the City of Philadelphia (City). Despite raising numerous issues, Objector essentially argues that: (1) Applicant lacked standing to seek the requested zoning relief; and, (2) the ZBA erred in granting the variance where Applicant did not satisfy the requisite variance criteria. Upon review, we affirm.

          I. Background

         The ZBA made the following findings. In April 2016, Applicant, the equitable owner of the property located at 723-729 North Sixth Street (subject property), applied to the Philadelphia Department of Licenses and Inspections (L&I) for a zoning/use registration permit for the proposed construction of a 5-story, 26-unit, multi-family residence with one commercial space, garage parking for 14 cars, and a roof deck and pilot house. L&I determined the proposed use was prohibited in the ICMX zoning district in which the subject property lies pursuant to the Philadelphia Zoning Code (Zoning Code). Thus, L&I issued a notice of refusal. Applicant appealed to the ZBA. A hearing ensued.

         The hearing record revealed that the subject property is an 8, 762-square foot lot located at the southeast corner of North Sixth and Brown Streets in the City. It is improved with a one-story structure that Applicant's counsel described as a "blighted … former industrial building" that was "mostly vacant for some time." ZBA Op., 11/23/16, Finding of Fact (F.F.) No. 8 (quoting ZBA Hr'g, 6/22/16, Notes of Testimony (N.T.) at 3). The area surrounding the subject property is comprised of a mix of Residential Multi-Family-1 (RM-1), Residential Single-Family Attached-5 (RSA-5), Industrial Residential Mixed-Use (IRMX), and Neighborhood Commercial Mixed-Use-2 (CMX-2) zoning districts. Applicant's counsel described the surrounding area as including a number of residential uses:

To the north there is a series of single family houses. To our west there is a school. To the east there are multi[-] family houses. And directly to the east is a large 61-unit, multi[-]family building. And to our south is also a couple of multi[-]family properties as well.

F.F. No. 10 (quoting N.T. at 5-6).

          Applicant's counsel submitted a list identifying 11 multi-family residential uses in the immediate vicinity, including a 61-unit multi-family building located adjacent to the subject property, which was approved by virtue of a use variance granted in 2001.

         Applicant's counsel described Applicant's proposal as "a five story building, 26 condo units, 14 parking spaces at the ground floor, as well as a small commercial space on the corner." F.F. No. 12. He indicated that two 700-square foot one-bedroom units would be located on the ground floor and the remaining 24 units-a mix of one and two-bedroom units ranging from 1, 000 to 1, 300 square feet -would be located on the upper floors. Applicant's counsel described the building as designed "to an IRMX standard" and stated the height of the building is intended to "match the height of the adjacent building." Id. (quoting N.T. at 4, 47).

         Applicant's counsel further stated Applicant had numerous meetings with the community prior to appearing before the ZBA, and Applicant revised its proposal in response to community requests for more on-site parking and "activity along North 6th Street." F.F. No. 13 (quoting N.T. at 4).

         In support of its variance request, Applicant presented the testimony of project architect Michael Skolnick (Applicant's Architect) regarding the design and use of the proposed building and its compatibility with surrounding uses. Applicant's Architect stated that, in designing the proposed multi-family dwelling, Applicant "looked at adjacent land uses and the adjacent zoning" then "tried to … design this project based on an IRMX use." F.F. No. 16 (quoting N.T. at 5-6). Applicant's Architect described the proposal as "pretty consistent with everything around us" and stated "we believe that we comply with that IRMX use with the area, the [height], the uses that are in the buildings, as well as our adjacent property." F.F. No. 16 (quoting N.T. at 12). Applicant's Architect estimated the height of the adjacent multi-family building as approximately "55 feet to the roofline." F.F. No. 17 (quoting N.T. at 7).

         Applicant also presented the testimony of its corporate representative David Landskroner (Applicant's Representative). Applicant's Representative testified that he "reviewed leases [and] seller documentation[, ]" "did an inspection of the [subject] property and … ran financial analyses to make sure that the project made sense from an economic standpoint." F.F. No. 19 (citing N.T. at 8).

         Describing the subject property's rental history, Applicant's Representative stated, "the [subject] property consists of four spaces, and there is a long history of vacancy." F.F. No. 20. He then identified the prior uses by space, stating that space A "was a kitchen business that went out of business in 2009, " space B was a "grocery store that went out of business in 2014, " space C was a "gym and karate space" that was "vacated in January of 2016, " and space D was occupied by tenants who chose not to renew their lease when it expired in 2015 and remained at the subject property "on a month-to-month lease" while "looking for a new space." F.F. No. 20 (quoting N.T. at 9). Applicant's Representative noted that the prior tenants in space B "were delinquent in their rent month after month" and the prior tenants of space C "were three to six months in arrears in rent" and in default on their lease when they vacated the property in January 2016. F.F. No. 21 (quoting N.T. at 9).

         Applicant's Representative described the existing structure as "a single story, old, dilapidated, outdated warehouse" and the rental spaces as needing "extensive renovations." F.F. No. 22 (quoting N.T. at 8-9). When questioned about the viability of ICMX uses for the subject property, and specifically asked if "after the cost of renovation, of demolition" he could "find a tenant to pay any kind of market rent that would make this project work, " Applicant's Representative responded "absolutely not." F.F. No. 23 (quoting N.T. at 10).

         Applicant's Representative also submitted documents pertaining to the feasibility of retail, industrial, and residential uses of the subject property using a range of purchase prices, including a purchase price of zero. The results supported his conclusion that retail and industrial uses were not viable, even assuming a zero cost. F.F. No. 25. When asked if there was "any scenario where [he] could utilize the property with an ICMX use and not lose money, [Applicant's Representative] responded 'Absolutely not. The property, as it is zoned currently, is valueless. There's no value.'" F.F. No. 26 (quoting N.T. at 11).

         In addition, Applicant presented the testimony of Jacob Cooper, the managing director of MSC Retail, a commercial real estate brokerage firm based in the City (Applicant's Commercial Real Estate Broker), who testified he was familiar with the Northern Liberties neighborhood in which the subject property is located. When asked to describe the type of retail, commercial and industrial uses commonly located there, Applicant's Commercial Real Estate Broker stated: "Depending on the street it's a variety of neighborhood goods and services, food and beverage uses, fitness uses, ground floor offices. As you move more north to Fishtown, there is more entertainment-driven uses. Also specifically along the Delaware Avenue corridor as well." F.F. No. 30 (quoting N.T. at 13).

         When asked if there was "a particular area in Northern Liberties where the retail market is stronger, " Applicant's Commercial Real Estate Broker replied:

North Second Street is really the main corridor of retail activity in Norther[n] Liberties. Other prime intersections are Frankford Avenue and Girard Avenue, which [go] into Fishtown. Specifically in Northern Liberties it is the larger streets, so it's Spring Garden, it's North Second Street, largely between Fairmount and Girard, as well as West Girard Avenue to the north of Northern Liberties.

F.F. No. 31 (quoting N.T. at 13).

         Further, when asked if there was a strong market for retail use at the corner of Sixth and Brown Streets, Applicant's Commercial Real Estate Broker opined it "is not a viable retail location or one that I would characterize with any significant retail value." F.F. No. 32 (quoting N.T. at 15). Applicant's Commercial Real Estate Broker testified the existing building on the subject property is not, in any case, rentable in its current condition. Applicant's Commercial Real Estate Broker opined the subject property also was not "a viable industrial site ... [l]argely because of the physical nature of the building, the lack of high ceilings, the lack of loading, the lack of parking, as well as the surrounding nature of the building in the neighborhood." F.F. No. 34 (quoting N.T. at 17).

          In opposition to the requested variance, Howard Silverman, an attorney and the managing member of Liberties Lofts (Objector's Representative), testified regarding Objector's opposition to the proposed development. When questioned by Applicant's counsel, Objector's Representative acknowledged that the building he owns, which is adjacent to the subject property, received variances, and the additional multi-family units proposed for the subject property would create competition for his property, which he identified as a ground for objection. Objector's Representative also expressed concern as to the proposed development's impact on light and air to his property and parking availability, but he did not dispute that the proposed height and parking were permitted by Zoning Code.

         Objector's Representative further argued Applicant did not establish hardship and the requested variance was not "the least restrictive." F.F. No. 39. He suggested the "least restrictive" variance would be one that permitted development in accordance with RSA-5 standards. Id. (quoting N.T. at 37-38).

         The final witness to testify, Planning Commission representative Paula Burns (Planning Commission Representative), reported that her agency recommended that Applicant be required to dedicate the subject property to an industrial or commercial use, but she did not express opposition to the remainder of the proposed development. In response to Planning Commission Representative's comments, Applicant's counsel again noted that "renting commercial here is difficult" and stated "any additional commercial reduces parking." F.F. No. 41 (quoting N.T. at 46-47). He characterized the proposed first floor mix of parking, commercial and residential as having resulted from "juggling with the community" and responding to the community's "desire for additional parking." Id.

         The ZBA also received and considered a letter from Northern Liberties Neighbors Association Zoning Chair Larry Freedman confirming that the registered community organization (RCO) supported the project as reflected in the revised plans presented at the public meeting on the proposal.

         At the conclusion of the hearing, the ZBA voted to grant the requested variance, subject to the proposed development's conformance with the revised plans submitted at the hearing.

         In its decision, the ZBA made the following relevant conclusions of law. The proposed residential use is not permitted in the ICMX district; thus, it requires a use variance.

         To establish entitlement to a variance, an applicant must show: an unnecessary hardship resulting from the property's unique physical conditions or circumstances; that such hardship is not self-imposed; that granting the variance would not adversely affect the public health, safety or welfare; and that the variance, if granted, would represent the minimum necessary to afford relief. Alpine, Inc. v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186 (Pa. Cmwlth. 1995).

         Further, the ZBA observed, Pennsylvania courts recognize that changes to the surrounding neighborhood may give rise to unnecessary hardship. Thus, in South of South Street Neighborhood Ass'n v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115, 120 (Pa. Cmwlth. 2012), disapproved of on other grounds by Scott v. City of Philadelphia, Zoning Board of Adjustment, 126 A.3d 938 (Pa. 2015) (Scott 2015), the Commonwealth Court noted, while "a property may once have not been burdened by an unnecessary hardship, the course of time may effect changes to that property and the surrounding area, which may ultimately result in the creation of an unnecessary hardship that did not previously exist." See also Chosen 300 Ministries, Inc. v. Phila. Zoning Bd. of Adjustment (Pa. Cmwlth., No. 67 C.D. 2015, filed January 19, 2016), slip op. at 9, 2016 WL 224036 at *4 (unreported) (approving ZBA's finding that "it was not only the irregular shape of the lot that formed the basis of the hardship, but also the lack of industrial development in the neighborhood and the transitioning from industrial to commercial that created the hardship.").

         The ZBA further noted this Court rejected the argument that an existing passive or minimal use of a property is sufficient to show that no hardship exists. Chosen 300 Ministries. Indeed, our Supreme Court "explicitly rejected the requirement that an applicant for a variance … eliminate every possible permitted use." Id. (quoting Marshall v. Phila. Zoning Bd. of Adjustment, 97 A.3d 323, 333 (Pa. 2014)).

         Here, the ZBA determined, Applicant established entitlement to the requested variance. Specifically, the ZBA explained, the existing building on the subject property is a dilapidated warehouse that has been vacant or underused for many years. Further, the uses surrounding the subject property consist of several multi-family developments, including a 61-unit multi-family building on the adjacent property to the east. The ZBA further determined Applicant presented evidence, including credible expert testimony, sufficient to establish that uses permitted under existing zoning regulations are not viable, and the requested variance is the minimum necessary to afford relief. The ZBA also noted the partial occupation of the building by tenants (some of whom failed to pay rent in a timely manner in the recent past) did not preclude a finding of hardship.

         In addition, the ZBA determined the proposed development would not negatively impact the public health, safety or welfare. The ZBA stated the proposed use will replace a blighted, mostly vacant building with a mixed use structure that conforms to all applicable dimensional standards, is consistent with surrounding structures and uses, and provides more than the required number of on-site parking spaces. Additionally, the proposed use received support from the area's RCO. For these reasons, the ZBA granted the requested variance. Objector appealed to the trial court.

         Without taking additional evidence, the trial court affirmed the ZBA. This appeal by Objector followed.

         II. Issues

          On appeal, [2] Objector raises seven issues in its Statement of Questions Involved.[3] However, Objector's issues can be consolidated into two primary issues: (1) whether the ZBA lacked subject matter jurisdiction over Applicant's variance request where Applicant lacked standing to file the application; and, (2) whether the ZBA erred in granting the requested variance where Applicant did not satisfy the criteria necessary to obtain a variance.

         III. Discussion

         A. Subject Matter Jurisdiction/Standing

         1. Contentions

         Objector first argues the ZBA had no jurisdiction to grant the variance here because Applicant had no authority to file the underlying zoning application, and the record lacks any evidence to the contrary. Objector asserts this Court holds that zoning boards are administrative agencies created by the General Assembly and their jurisdiction is only that which the legislature expressly conveyed or which is necessary by implication. Joe Darrah, Inc. v. Zoning Hearing Bd. of Spring Garden Twp., 928 A.2d 443 (Pa. Cmwlth. 2007). Objector contends the Zoning Code grants the ZBA the power to, among other things, "authorize variances from the terms of th[e] Zoning Code, " after public notice and a public hearing. See Section 14-103(4)(a)(.3) of the Zoning Code. However, Objector maintains, a variance may only be granted on a duly authorized Application for Zoning/Use Registration Permit, and Applicant had no authority to file the Application here.

         Objector argues the Zoning Code dictates who may file a zoning application. Section 14-303(1)(b) of the Zoning Code states that an Application for Zoning/Use Registration Permit "may only be filed by (a) a department or agency of the City or (b) the property owner, except as provided in § 14-303(1)(c) (Equitable Owners, Authorized Agents, and Conservators)." Id. (emphasis added). In turn, Section 14-303(1)(c)(1) states: "Any person or entity with written documentation of equitable ownership of that real property" may file a zoning application. Id. (emphasis added). Objector asserts that, premised on Section 14-303(1)(c), the ZBA's Rules and Regulations mandate that an applicant seeking zoning relief from the ZBA must submit: "Proof of legal or equitable interest in the property in question, such as a fully-signed deed, agreement of sale, lease or similar instrument." Section 5.2.3.1 of the ZBA Rules & Regulations; Reproduced Record (R.R.) at 532a (emphasis added).

         Therefore, Objector contends, to be authorized to file the application, Applicant must, at the time of filing, have been (1) the legal owner of the subject property, or (2) the equitable owner of the subject property with written proof of its equitable ownership. Objector maintains Applicant was neither the legal nor equitable owner, so it filed the application without authority to do so under the Zoning Code and the ZBA's Rules and Regulations.

         As to legal ownership, Objector argues, at all relevant times, the legal owners of the subject property were Irene and Constantinos Vouladas, not Applicant. Applicant asserts the Office of Property Assessment (OPA) records and the deed for the subject property that Applicant presented at the hearing confirm that Irene and Constantinos Vouladas are the subject property's legal owners. R.R. at 186a-191a. Further, as to equitable ownership, Objector contends, the record includes an executed agreement of sale, dated November 19, 2015, in which Irene Vouladas agreed to sell and RLDL Spruce LLC agreed to purchase the subject property. R.R. at 241a-252a. Objector points out that, at oral argument before the trial court, Applicant asserted the agreement of sale included language allowing it to be assigned; however, Objector maintains, the record does not include an assignment.

          Because Applicant was neither the legal nor equitable owner of the subject property, Objector argues, there is no dispute that Applicant improperly filed the application. Objector asserts the record lacks any evidence to the contrary, and this Court's review is limited to the record on appeal. In fact, Objector contends, Applicant's own documents, the subject property's deed and the OPA records as well as the executed agreement of sale, make clear that Irene and Constantinos Vouladas are the legal owners of the subject property and that RLDL Spruce LLC- not Applicant-is the equitable owner. Thus, Objector maintains, the application was null and void because Applicant filed it impermissibly. Objector argues the ZBA was conferred no jurisdiction by virtue of Applicant's application for appeal, and the variance at issue is void ab initio. Because the ZBA had no jurisdiction, Objector asserts, the trial court had no jurisdiction and now this Court lacks jurisdiction, so this Court must vacate the variance it granted to Applicant.

         Objector further contends there was no executed written assignment of the agreement of sale here. Therefore, it asserts, Applicant had no equitable interest in the subject property at any relevant time. As such, Objector argues the ZBA and the trial court erred in holding Applicant was the equitable owner of the subject property by way of an assignment. Specifically, Objector asserts the trial court held, "there is sufficient evidence of the equitable ownership of [A]pplicant, including among other bases, the testimony of [Applicant's Representative] at the [ZBA] hearing, and the fact that the assignment itself is not of record is immaterial." R.R. at 719a. Objector argues the trial court abused its discretion in determining there was any evidence, let alone, sufficient evidence of Applicant's equitable ownership.

          Additionally, Objector maintains, the trial court erred in finding it immaterial that the record did not contain the assignment.

         Objector points out that Applicant argues it was the equitable owner of the subject property by way of an assignment of the agreement of sale from RLDL Spruce LLC to Applicant. Objector asserts that, although RLDL Spruce LLC was permitted to assign its rights under the agreement of sale, there is no record evidence it did so.

         Objector contends Applicant's Representative testified, as the corporate representative of Applicant, that he was the equitable owner of the subject property.

Q: David, you are the equitable owner of the property under agreement of sale?
A: Correct. Yes.

R.R. at 35a. Objector argues this single question and answer is Applicant's Representative's complete testimony regarding Applicant's equitable ownership of the subject property. Objector asserts Applicant's Representative did not mention an assignment of the agreement of sale. Further, Objector contends, Applicant's counsel did not mention an assignment when he informed the ZBA that he had an agreement of sale when questioned by the ZBA Chairman. R.R. at 33a-34a. Again, Objector maintains, that single question and answer is Applicant's counsel's complete statement regarding Applicant's documentary evidence of its equitable ownership.

          Moreover, Objector asserts, when the parties appeared before the trial court at oral argument, and the issue of jurisdiction arose, the trial court expressly asked Applicant's counsel: "Q: Is there any evidence in the record that would indicate that your client had the authority or had the assignment of the property?" In response, Applicant's counsel stated: "My client is a member of both entities, RLDL Spruce, LLC and Hightop Brown, LLC." R.R. at 703a.

         Notably, Objector contends, Applicant's counsel made no reference to an assignment of the agreement of sale, which the trial court realized because it followed up by asking: "Right. But is there evidence in the record that was before the ZBA that would have supported that finding?" Id. Objector maintains Applicant's counsel still made no reference to an assignment of the agreement of sale. Rather, he answered:

Other than the fact that it is in the agreement of sale, and it's expressly permitted that the assignment is there and to the extent that the applicant is referred to as Hightop Brown or RLDL Spruce, LLC, single member - I mean, single purpose LLCs that were created for the purpose of purchasing this property.
My client is still the equitable owner of the [subject] property. [It is] not the owner of the [subject] property because ownership is contingent upon obtaining full and unappealable zoning relief. ...

Id. Objector asserts Applicant's counsel had no knowledge of an actual, written assignment of the agreement of sale. Despite this fact, Objector contends, a purported assignment was presented (not as part of the record) to the trial court at oral argument regarding jurisdiction.

          Objector further maintains that as a matter of law an assignment of the agreement of sale had to be in writing based on the Statute of Frauds.[4] Trowbridge v. McCaigue, 992 A.2d 199 (Pa. Super. 2010); Strausser v. Pramco, III, 944 A.2d 761, 765 (Pa. Super. 2008). Objector argues, it is indisputable that, as found by the trial court and admitted to by Applicant's counsel, there is no written assignment of the agreement of sale in the record. Therefore, Objector asserts, because the assignment must be in writing to satisfy the Statute of Frauds, the trial court erred in concluding that the fact that the assignment itself is not of record is immaterial. R.R. at 719a.

         Objector further contends, because the ZBA had no jurisdiction, and the trial court had no jurisdiction, this Court now lacks jurisdiction. Objector argues that if an adjudicative body below lacks subject matter jurisdiction, an appellate court does not acquire it on appeal. Fircak v. N. Strabane Twp. (Pa. Cmwlth., No. 1942 C.D. 2011, December 5, 2012), 2012 WL 8699987 (unreported). Here, Objector argues, Applicant improperly filed the application without the requisite authority, as it was neither the legal nor equitable owner. Thus, Objector asserts the application was void ab initio and conferred no jurisdiction on the ZBA.

         Moreover, Objector contends, even if this Court determines the ZBA had jurisdiction to grant the variance, and that the trial court and now this Court have jurisdiction on appeal from that grant by the ZBA, Applicant lacks standing because it is not an aggrieved party under Pennsylvania law and because it has no ownership interest in the subject property. Specifically, Objector argues, Applicant lacks standing because it can demonstrate no direct or actual aggrievement-a legal requirement for standing.

         Objector points out that the trial court held that the issue of standing was waived because it was not raised at the ZBA hearing. The trial court further stated that the case Objector relied on was distinguishable as it related to the standing of a protestant rather than an applicant as is the case here. R.R. at 719a. Objector notes the case on which it relied was Scott 2015. Objector asserts the trial court did not address the merits of Objector's standing argument based on its determination that Objector waived that issue.

         Objector argues Pennsylvania courts hold that a land use appeal is moot for lack of standing where a party has no ownership interest in the property at issue. See Gwynedd Props. v. Bd. of Supervisors of L. Gwynedd Twp., 635 A.2d 714 (Pa. Cmwlth. 1993); see also Peach Bottom Twp. v. Peach Bottom Zoning Hearing Bd., 526 A.2d 837 (Pa. Cmwlth. 1987). As set forth above, Objector maintains, Applicant has no ownership interest in the subject property; therefore, it lacks standing in this appeal.

         Moreover, Objector asserts, Applicant is not an aggrieved party and, thus, has no standing here. Specifically, Objector contends, Applicant can show no substantial, direct or immediate interest. See William Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975); see also Spahn v. Zoning Bd. of Adjustment, 977 A.2d 1132 (Pa. 2009). With the understanding that Applicant has no standing in this appeal based on an analysis of the merits of standing requirements, Objector argues, the only issue is whether Objector waived a standing challenge.

         Objector concedes it first raised the issue of standing before the trial court and not before the ZBA. However, it asserts, in line with the reasoning of recent Pennsylvania standing cases in zoning appeals, it raised the issue at the first opportunity to do so. Therefore, Objector maintains, the trial court's decision not to follow the Supreme Court's decision in Scott 2015 was in error. To that end, Objector argues, there is no dispute that in Scott 2015, the Supreme Court addressed an appellant's standing in a land use appeal and held, "to appeal from the [ZBA] to the trial court, an appellant must demonstrate in the trial court, if challenged, that he is aggrieved pursuant to William Penn and as applied in Spahn, and may not avoid this obligation by arguing that the landowner failed to challenge standing before the ZBA." Scott 2015, 126 A.3d at 949. Objector maintains the same analysis should apply when a protestant challenges an applicant's standing. Indeed, Objector argues, Scott 2015 calls into question whether standing can even be waived in Philadelphia, if not raised before the ZBA.

         2. Analysis

         Contrary to Objector's assertions, "the courts of this Commonwealth view the issue of standing as nonjurisdictional and waivable." In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913 A.2d 178, 181 n.6 (Pa. 2006) (emphasis added); Twp. of Bristol v. 1 Enters., LLC, __ A.3d__, __ (Pa. Cmwlth., Nos. 658, 727 C.D. 2017, filed January 5, 2018), slip op. at 10, 2018 WL 296835 at *5 (citing Commonwealth v. Allen, 107 A.3d 709, 711 n.1 (Pa. 2014); City of Phila. v. Rivera, 171 A.3d 1, 6 (Pa. Cmwlth. 2017)) ("Lack of standing is not a jurisdictional defect."); Hous. Auth. of City of Pittsburgh v. Van Osdol, 40 A.3d 209, 214 (Pa. Cmwlth. 2012) ("Standing is a non-jurisdictional and waivable issue.").

         Indeed, the law is well-established that "the question of standing is not an issue of subject matter jurisdiction and, therefore, may not be raised sua sponte." Firearm Owners Against Crime v. L. Merion Twp., 151 A.3d 1172, 1180 n.10 (Pa. Cmwlth. 2016) (citing Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43 (Pa. 1998)); see also In re Nomination Petition of DeYoung, 903 A.2d 1164 (Pa. 2006). Thus, we reject Objector's thinly-veiled attempt to recast its standing argument as implicating subject matter jurisdiction.

         Further, Objector concedes it did not raise the issue of Applicant's standing to file the Application for Zoning/Use Registration Permit or to seek the requested variance before the ZBA. See Appellant's Br. at 32. Therefore, this issue is waived. THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330, 343-44 (Pa. Cmwlth. 2014) (objectors waived argument that applicant lacked standing to obtain requested use permit on the ground that applicant did not have an ownership interest in property when it filed the application where objectors did not raise standing issue before ZBA); see also Scott v. Zoning Bd. of Adjustment (Pa. Cmwlth., 358 C.D. 2015, filed April 13, 2017), slip op. at 14, 2017 WL 1365601 at *7 n.16 (unreported) (Scott 2017)[5] ("While [the objector] questioned the [p]roperty's ownership and the ZBA's failure to obtain proof of the [p]roperty's ownership in his brief to this Court, [the objector] failed to properly preserve such issue on appeal because he failed to raise it in his 1925(b) Statement. See Pa. R.A.P. 1925(b)(4)(vii). … In addition, [the objector] did not raise this issue or object to [the applicants'] failure to submit such documentation into the record at the time of the ZBA hearing. For all of these reasons, we will not address [the objector's] arguments relative to the ownership of the [p]roperty.") (emphasis added).[6]

         Moreover, Scott 2015, relied on by Objector, does not compel a different result. There, the applicant sought and obtained variances before the ZBA. An objector appealed the grant of the variances, and the applicant challenged the objector's standing to appeal. The trial court agreed with the applicant that the objector lacked standing to appeal, and it quashed the objector's appeal. On further appeal, this Court held the applicant waived its challenge to the objector's standing by failing to raise it before the ZBA. Ultimately, the Supreme Court disagreed with this Court's holding, explaining (with emphasis added):

Zoning in the [City] is governed by the Zoning Code … as well as the [First Class City] Home Rule Act [(Home Rule Act)[7], rather than the [Pennsylvania Municipalities Planning Code (MPC)[8]. The Philadelphia Code, unlike the MPC, provides no definition of who is a party before the [ZBA] and does not limit who may appear and participate in a zoning hearing. Once an appeal is properly brought before the [ZBA], as it was by [the applicant] as appellant from the decision of [L&I], no other person who appears at the zoning hearing is required to have standing. As the City emphasizes, anyone is free to attend and address the [ZBA] at its hearings. In stark contrast to the MPC, attending and participating at the hearing does not confer standing to appeal to the trial court or render an individual 'necessarily aggrieved' to appeal an adverse decision. Rather, as this Court decided in Spahn, the Home Rule Act defines who may appeal from the [ZBA] to the trial court.
Specifically, Section 17.1 of the Home Rule Act, [9]53 P.S. § 13131.1, provides standing in appeals from zoning matters in [the City], as a city of the first class, to 'any aggrieved person' as follows:
In addition to any aggrieved person, the governing body vested with legislative powers under any charter adopted pursuant to this act shall have standing to appeal any decision of a zoning hearing board or other board or commission created to regulate development within the city. As used in this section, the term 'aggrieved person' does not include taxpayers of the city that are not detrimentally harmed by the decision of the zoning hearing board or other board or commission created to regulate development.
Section 17.1 of the Home Rule Act is contrary to the Philadelphia Code, which broadly granted standing to any taxpayer under Section 14-1807(1) ('Any person or persons jointly or severally aggrieved by any decision of the Board, or any taxpayer, or any officer, department, board or bureau of the City, may appeal ….'). We resolved this conflict in Spahn.
Specifically, in Spahn, we addressed, inter alia, whether by enacting Section 17.1 of the Home Rule Act the General Assembly had eliminated general taxpayer standing in Philadelphia and whether the appellants in fact had standing to pursue zoning challenges under traditional notions of standing. In resolving the question of Section 17.1, we held that by its plain language, the General Assembly intended 'to give the specific power of standing to appeal a decision of a zoning hearing board within a city of the first class to the governing body vested with legislative powers and to 'aggrieved persons, ' Spahn, 977 A.2d at 1143, and that the local Philadelphia Code must cede to this legislative enactment. We further held that the General Assembly intended the term 'aggrieved person' as it is generally understood and defined in William Penn. Under William Penn, a party is aggrieved if the party can show an interest that is substantial, direct, and ...

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