Submitted: January 25, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E.
COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
E. COVEY, JUDGE
Plaxton (Mr. Plaxton) and Elke Plaxton (Mrs. Plaxton)
(collectively, Objectors) appeal, pro se, from the
Philadelphia County Common Pleas Court's (trial court)
February 22, 2018 order denying Objectors' appeal and
affirming the City of Philadelphia (City) Zoning Board of
Adjustment's (ZBA) April 25, 2017 decision granting 1903
Spring Garden Associates, LP (Applicant) a use variance to
park four vehicles in the rear yard of its property located
at 1903 Spring Garden Street, Philadelphia (Property) and a
dimensional variance from the Philadelphia Zoning Code's
(Code) landscaping requirements. Objectors present three
issues for this Court's review: (1) whether the trial
court erred by determining that Objectors lacked standing;
(2) whether the trial court abused its discretion by applying
the unclean hands doctrine; and (3) whether the trial court
erred or abused its discretion by upholding the ZBA's
Plaxton v. Zoning Board of Adjustment (Pa. Cmwlth.
No. 727 C.D. 2015, filed June 13, 2016) (Plaxton I),
this Court reversed the ZBA's ruling that rear parking on
Applicant's property was permitted as of right, and
granted Applicant a variance from the Code's landscaping
requirement due to Applicant's inability to use the
Property. This Court remanded the matter for the ZBA to
determine whether Applicant is entitled to a variance for the
proposed parking and, if so, whether a variance should be
granted from the Code's landscaping requirements.
February 15 and March 22, 2017, the ZBA held remand hearings
during which various witnesses testified in support of the
variances. The witnesses described their concerns about the
lack of parking in the neighborhood and explained that it was
usual and customary for property owners to use rear yards for
parking. See ZBA Decision at 3. Further,
Objectors testified that they had previously obtained zoning
approval to alter the rear of their property to create a rear
yard and that Objectors have been using this rear yard as
space in which to park their vehicle for many years. Mrs.
Plaxton testified that to pull their vehicle into their rear
yard, they do not have to drive over anyone else's
property. However, Mrs. Plaxton claimed that, to pull out of
the parking spaces Applicant seeks to use, cars have to
'trespass' over her public sidewalk ( which
Objectors are legally obligated to maintain) and into her
yard before they can drive away down Monterey Street.
Moreover, Mrs. Plaxton testified that the cars leave tire
marks in her yard. Mr. Plaxton also testified that the
traffic in and out of Applicant's proposed parking spaces
has not caused the poor, cracking, and deteriorating
condition of his sidewalks.
Trial Ct. Op. at 4.
April 25, 2017, the ZBA unanimously approved Applicant's
variances, allowing the Property's rear yard area to be
used for four parking spaces. On May 5, 2017, Objectors
appealed to the trial court. On February 22, 2018, the trial
court dismissed Objectors' appeal because they lacked
standing and were ineligible for equitable relief based on
the doctrine of unclean hands. In dismissing the appeal, the
trial court determined:
Objectors did not have standing to appeal from the
[ZBA]'s decision to the [trial court] because Objectors
failed to demonstrate that they were 'aggrieved'
persons. More specifically, Objectors failed to prove
that the granting of the variances would have some
discernible effect on some interest of the Objectors in a way
that is greater than that of any other citizens. The
credible evidence at the hearing indicated that vehicles
entering or leaving Applicant's proposed parking spaces
would not trespass over Objectors' property or affect it
in any way.
The [ZBA] found [Applicant's agent's] testimony as
credible and persuasive and accepted that cars entering or
leaving Applicant's proposed parking spaces would not
trespass over Objectors' property or effect it in any
way. Moreover, the [ZBA] found [Applicant's agent's]
testimony consistent with the [City's] Streets
Department's approval of the parking spaces. Indeed,
Objectors even stated that to move vehicles into and out of
their rear yard (which they, like the Applicant, use for
parking), they do not have to drive over anyone else's
property. Mr. Plaxton even stated that the cars entering or
leaving Applicant's proposed parking spaces had not and
would not have any effect on the condition of Objectors'
Thus, the variances did not harm any interest of Objectors in
any way that was greater than any other citizen. As such,
Objectors failed to demonstrate that they are
'aggrieved' persons with standing to appeal from the
[ZBA]'s decision to the [trial court].
Trial Ct. Op. at 7-8 (emphasis added; citations omitted). The
trial court further reasoned:
Objectors were ineligible for equitable relief - in other
words, barred from objecting to the variances - based upon
the doctrine of unclean hands. Both Objectors testified that, in
1986, they had previously obtained zoning approval to
demolish a garage in the rear of their property and replace
it with a rear yard. Objectors indicated in their [z]oning
[a]pplication that the rear yard would not be used as
'off-street parking' as their drawing did not include
such a label. However, both Objectors testified that, for
many years, they have used this rear yard as a parking lot in
which to park their vehicle. Objectors' use of the rear
yard as a parking lot is clearly contrary to and not
permitted by the zoning approval they received in 1986.
Objectors cannot use the [Code] as both a sword and a shield.
Objectors' use of their rear yard as space for parking
their vehicle in violation of the terms of their zoning
approval while at the same time objecting to and appealing
from the [ZBA]'s granting of a variance allowing
accessory parking in the rear of Applicant's Property is
(1) bad faith conduct offending the moral sensibilities of
the Judge, (2) related to the controversy at ...