ZONING LAW UPDATE: Commonwealth Court Addresses the "Standing" of a Protesting Neighbor to Oppose a Zoning Application

April 10 2014

On March 21, 2014, the Commonwealth Court of Pennsylvania issued a binding appellate level decision in Scott v. City of Philadelphia, Zoning Bd. of Adjustment, __ A.3d __ (Pa.Cmwlth.2014) that clarified the law on when it is necessary to raise an objection to the standing of a neighbor-protestant to a zoning case before the Philadelphia Zoning Board of Adjustment.    

In Scott, a developer sought variances before the City of Philadelphia Zoning Board of Adjustment needed to construct a four story, mixed-use condominium complex.  Before the Zoning Board, a neighbor, who lived over three hundred and fifty feet away from the proposed condominium, retained an attorney to appear and present objections.  Of note, the developer did not object to the neighbor’s standing before the Zoning Board and the neighbor was allowed to present testimony through his attorney without objection.  

The Zoning Board of Adjustment ultimately granted the developer’s requested variances and the neighbor appealed to the Philadelphia Court of Common Pleas.  Before the Court of Common Pleas, the developer first raised an objection to the standing of the neighbor through the filing of a motion to quash, which was granted by the Court.  The Court reasoned that the neighbor had not established that he was an “aggrieved party” because he lacked a substantial, direct, and immediate interest in the zoning application and the Board’s grant of variances.    

On appeal, the Commonwealth Court reversed and reasoned the “standing” issue had been waived by the developer.  The Commonwealth Court resolved a conflict between two of its prior decisions: South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115 (Pa. Cmwlth. 2012) (reasoning that a party is “aggrieved” by a zoning hearing board’s ‘adverse decision when a protestant participates in the proceeding before the Zoning Board, without objection) and Spahn v. Zoning Board of Adjustment, 602 Pa. 83, 977 A.2d 1132 (2009) (holding that party status before a Court of Common Pleas is governed by the statewide Judicial Code, not enabling legislation for a zoning board). 

In reaching its holding, the Commonwealth Court construed the South of South Neighborhood Association case as being most analogous and held that a proper challenge to a party’s standing to oppose a zoning application must be first raised during the zoning hearing if it is to be raised as an issue on appeal. 

Please contact the attorneys at Orphanides & Toner, LLP, for the latest on important procedural tactics like when and how to address an issue like a party’s “standing” in a zoning case.