84 Pa. Commw. 538 | Pa. Commw. Ct. | 1984
Opinion by
Active Amusement Company (Active) appeals an order of the Philadelphia County Court of Common Pleas which affirmed the Philadelphia Zoning Board of Adjustment’s grant of a proximity variance and certificate of use to Bally’s Aladdin’s Castle, Inc. for operation of an amusement arcade in a shopping plaza owned by University City Associates, Inc.
We must determine
Bally’s appealed to the Philadelphia Zoning Board of Adjustment which held an evidentiary hearing at which Active entered an appearance through its counsel. The board permitted Active to place on the record its opposition to the grant of the certificate and to argue that the applicants had presented no evidence of unnecessary hardship to warrant the grant of a variance. The applicants voiced no objection to Active’s appearance before the board. The board reversed the department’s refusal and ordered the issuance of the use certificate and the variance.
Upon appeal, the common pleas court agreed with the contention which Bally’s then raised, that Active did not have standing as an aggrieved party because its interest in the subject matter of the litigation was
However, as to this case, Pennsylvania Petroleum (a public utility’s appeal of a PUC order approving a rate increase for a competing utility) is no.t controlling. The determination of who is aggrieved can vary with the particular type of action involved, and according to its statutory basis; the criteria for being aggrieved in a zoning case has evolved uniquely as to that type of proceeding.
Section 14-1806(1) of the Philadelphia Code provides in part:
Any person or persons jointly or severally aggrieved by any decision of the Board, or any taxpayer, . . . may present to a Court of record a Petition, duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality.
Under Bartle v. Zoning Board of Adjustment of Philadelphia, 391 Pa. 207, 137 A.2d 239 (1958), zoning ordinances enacted by City Council under the Philadelphia Home Rule Charter prevail over zoning enabling acts of the General Assembly because zoning is strictly local in scope and not of statewide concern. However, the zoning enabling act for cities of the first class
Similarly, the Pennsylvania Municipalities Planning Code (MPC),
Section 908(3) of the MPC, 53 P.S. §10908(3) sets forth who qualifies as a “party” before the board:
The parties to the hearing shall be the municipality, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board.
Having appeared and participated as a party before the Board, Mrs. Baker was necessarily aggrieved by the adverse decision of the Board. To hold otherwise would reduce to a nullity for purposes of the appeal of obtaining of the status of a party before zoning hearing boards.
Id. at 608, 367 A.2d at 823.
As a “party aggrieved,” Active thus clearly had standing to appeal the board decision to the common pleas court.
Moreover, the Pennsylvania decisions, including those antedating the MPC and hence based on zoning enabling acts more like the Philadelphia Code, have consistently approved the concept that an objector, if not located outside of the municipality involved, Cable-vision-Division of Sammons Communications, Inc. v. Zoning Hearing Board of Easton, 13 Pa. Commonwealth Ct. 232, 320 A.2d 388 (1974), could have, by
The present appellants, as owners of property in the immediate vicinity of the property involved in the present litigation, have the requisite interest and status to become intervenors within Pa. R.C.P. 2327(4).
For Esso, which arose under township law, the zoning enabling acts before the MPC provided the statutory background, with both the First Class Township Code
[a]ny person aggrieved by any decision of the board of adjustment ... or any taxpayer . . . may, within thirty days after such decision of the board, appeal to the court of common pleas
Significantly, those statutory provisions are virtually identical to those we find in the Philadelphia Code controlling here.
Active here admittedly is the owner of a business located nearby and is at least an occupant or lessee of that property. Its relationship to the land’s legal title has not been established on this record. Counsel for University City Associates, without denying Active’s status as business owner, asks that this court, at the appellate level, take judicial notice of “city
The law, as in Esso, has recognized that users of nearby land understandably have an interest in the proper implementation of land planning policies through zoning, in relation to ithe benefits to be: gained, not only with respect to the land value of a titleholder, but also with respect to the enjoyment of the land by a user of it, whether in connection with residential occupancy or business operation.
In addition, the applicants waive any objection to Active’s standing by failing to raise the issue during .the proceedings before the board. Cohen v. Zoning Board of Adjustment, 53 Pa. Commonwealth Ct. 311, 417 A.2d 852 (1980).
We conclude that the common pleas court should not have dismissed Active’s appeal for lack of standing and accordingly remand for further consideration of the merits in this case.
Now, August 16, 1984, the order of the Common Pleas Court of Philadelphia County, entered at No. 4793 October Term, 1982, on September 19, 1983, is reversed, and the case is remanded for further proceedings consistent with this opinion.
Jurisdiction relinquished.
In a zoning ease, the Commonwealth Court’s scope of review of a common pleas court order affirming a zoning board of adjustment decision without taking additional evidence is limited to a determination of whether the board committed an abuse of discretion or an error of law. Solow v. Zoning Hearing Board of Borough of Whitehall, 64 Pa. Commonwealth Ct. 414, 440 A.2d 683 (1982).
A use certificate is similar to a special exception under other zoning laws.
The Act of May 6, 1929, P.L. 1551, §8, 53 P.S. 14759(3).
Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101 to 11108-A.
Interestingly, there is a distinction between a “person” and a “party” aggrieved under the MPO, as we pointed out in Baker v. Zoning Hearing Board of West Goshen Township, 27 Pa. Commonwealth Ct. 602, 367 A.2d 819 (1976) :
While any person aggrieved by a decision regarding a use of another’s land may appeal to a zoning hearing board, it is necessary, for an appeal to be brought in our courts, that the appellant had been a party before the zoning hearing board. (Emphasis in original.)
Id. at 606, 367 A.2d at 821.
An objector who appears through counsel is a “party permitted to appear before the board” as contemplated under section 908(3) of the MPC, 53 P.S. §10908(3). Naimoli v. Zoning Hearing Board, of the Township of Chester, 56 Pa. Commonwealth Ct. 337, 425 A.2d 36 (1981).
This case is distinguishable from Florida First Bon Capital Corporation v. Zoning Hearing Board of Lonsdale, 40 Pa. Commonwealth Ct. 448, 397 A.2d 838 (1979), where we held that an objector’s participation in proceedings before the board did not render him a party aggrieved because on appeal he did not retain the Same interest in the subject property which had since been sold in a mortgage foreclosure.
Act of June 24, 1931, P.L. 1206, §3107, as amended, formerly 63 P.S. §58107, repealed by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, §1201, 53 P.S. §11201(3).
Act of May 1, 1933, P.L. 103, §2007, as amended, formerly 53 P.S. §67007, repealed by the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, §1201, 53 P.S. §11201(5).
The briefs here have pressed, in addition to the question of whether there is a sufficient basis for granting a variance, additional issues, including an attack upon the validity of the regulations by Bally’s and an unusual request on behalf of the Philadelphia Zoning Board of Adjustment itself, that the case be remanded to it to consider the suitability of the particular entities or persons who have