Argued: March 8, 2018
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
zoning appeal, Liberties Lofts LLC (Objector) asks whether
the Court of Common Pleas of Philadelphia
County (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.
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.
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.
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).
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.
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).
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).
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).
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).
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).
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).
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).
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).
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.
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).
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."
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.
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.
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.
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.
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
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)).
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.
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.
taking additional evidence, the trial court affirmed the ZBA.
This appeal by Objector followed.
appeal,  Objector raises seven issues in its
Statement of Questions Involved. 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.
Subject Matter Jurisdiction/Standing
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.
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 18.104.22.168 of the ZBA Rules &
Regulations; Reproduced Record (R.R.) at 532a (emphasis
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.
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
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.
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
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.
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
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.
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,
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
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. 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.
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
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.
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
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.
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.
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.
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
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.
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) ("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).
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), rather than the [Pennsylvania
Municipalities Planning Code (MPC). 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,
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
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 ...