          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roseanne Adams,                  :
                                 :
                    Appellant    :
                                 :
             v.                  : No. 534 C.D. 2017
                                 : Argued: March 6, 2018
                                 :
The Philadelphia Zoning          :
Board of Adjustment              :

BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                        FILED: August 30, 2018

             Roseanne Adams (Appellant) appeals from the March 27, 2017 order
of the Court of Common Pleas of Philadelphia County (trial court) affirming the
Philadelphia Zoning Board of Adjustment’s (Board) decision that granted zoning
and use variances to Janice Yager (Applicant) for the property located at 1944
Hamilton Street, Philadelphia, Pennsylvania (Property). We vacate and remand.
             The Property is zoned for residential mixed-use (RMX-3), which
prohibits non-accessory surface parking.1 On July 30, 2015, Applicant applied to
the Philadelphia Department of Licenses and Inspections (L & I) for zoning and use
permits to build two non-accessory surface parking spaces with a six-foot security
fence and a roll-up gate at the Property, which is next door to Applicant’s home.

      1
         RMX-3 applies primarily in higher density locations. Philadelphia City Planning
Commission, 2016 Philadelphia Zoning Code Information Manual: Quick Guide, at 14-15,
https://www.phila.gov/CityPlanning/resources/Publications/Philadelphia%20Zoning%20Code_Q
uick%20Reference%20Manual.pdf (last visited August 17, 2018).
Reproduced Record (R.R.) at 115a. On August 26, 2015, L & I refused Applicant’s
permit application on the grounds that: (1) Section 14-602-1 of the Philadelphia
Zoning Code prohibits the proposed use of non-accessory surface parking in the
RMX-3 district; and (2) Section 14-706(3)(b) of the Zoning Code prohibits the
proposed front fence height from exceeding a height of four feet in the RMX-3
district. R.R. at 99a. Applicant appealed to the Board.
             The Board held a hearing on February 17, 2016. Applicant testified
that she sought the variance in order to use the Property for personal parking because
parking is very limited in the area and anyone could park in front of her house,
Applicant’s husband has Parkinson’s disease, and having parking and access to the
rear door of Applicant’s home would be helpful to accommodate their changing
needs. Notes of Testimony (N.T.) at 7, 17. She stated that she had maintained the
Property for the previous 28 years, though she only purchased the Property in 2014.
N.T. at 16. Applicant admitted that she could purchase parking at the lot across the
street. N.T. at 17. She also testified that she had not applied to have a handicapped
spot put in front of her home. N.T. at 18.
             A representative from Applicant’s local Registered Community
Organization (RCO), Logan Square Neighborhood Association (LSNA), and several
neighbors also testified in favor of the variance. N.T. at 43-46. Additionally,
Applicant submitted a letter of non-opposition from LSNA, a petition of support
signed by 32 neighbors, and letters of support from adjacent neighbors. Applicant
Exhibits 5, 9. Paula Burns, testifying on behalf of the City Planning Commission,
stated that though the Commission would prefer that Applicant consolidate the
Property with the adjacent lot, 1942 Hamilton, on which her home is located, the
Commission understood that Applicant wanted to keep the lots separate. N.T. at 47.


                                          2
Burns requested that the Board restrict the fence height to four feet if it otherwise
granted Applicant’s variance. Id.
               Appellant was the sole objector to the variance. She testified that she
and other neighbors, including Applicant’s husband, had participated in negotiating
a neighborhood development agreement (Agreement) that restricted the Property to
remain solely a landscaped area until it was developed for single-family residential
use. 2 N.T. at 19. She further testified that there was high demand for residential
properties in the Logan Square neighborhood. N.T. at 31-32. Appellant conceded
that she would not have challenged Applicant’s permit application if Applicant had
agreed to either consolidate the Property with the lot on which she resided or placed
a deed restriction on the Property. N.T. at 33-34.
               Appellant also raised safety concerns, stating that she waits for the bus
on the corner near the Property with her back to where the proposed parking spaces
would be located. N.T. at 24. She testified that anyone parking in the proposed lot
would have to back out onto the street. N.T. at 26. Appellant expressed concern
that there were several utility poles near the proposed parking area, that cars often
parked immediately next to the utility poles, or even illegally in the bus stop, and
that traffic on the street was congested during rush hours. N.T. at 26-28.
               At the hearing’s conclusion, the Board voted to grant the requested
variance with provisos that the fence not exceed a height of four feet, that the parking
be considered accessory parking for the use of the residents of 1942 Hamilton only,

       2
        R.R. at 169a-253a. The named parties to the Agreement were Rodin Parking Partners,
L.P. (Developer), LSNA, Hamilton Townhouse Association, Appellant, John Surman, and those
owners of the properties at 417, 419, 421, 423, 425, 427, and 429 North 20 Street and 1938, 1940,
and 1942 Hamilton Street (non-Developer parties are collectively known as the “Neighbor
Group”). Under the terms of the Agreement, Developer agreed to specific restrictions and
requirements for its development of certain properties in exchange for the support of the Neighbor
Group.
                                                3
and that the approval would be for a temporary term of five years. In support of its
decision, the Board found that substantial community growth significantly reduced
available street parking and, as a result of Applicant’s husband’s Parkinson’s disease
diagnosis, proximate parking was a serious concern for Applicant. Findings of Fact
(F.F.) No. 15. The Board concluded that the evidence of record, including submitted
exhibits and witness testimony, satisfied the requirements for grant of the requested
variance. The Board noted that the Property had been abandoned for decades, the
proposed use was supported by a number of neighbors and not opposed by the area
RCO, the Philadelphia Streets Department approved the proposed curb cut, and the
imposed provisos would limit the duration of use and restrict parking to the use of
the adjacent property owner. The Board further noted that its jurisdiction is limited
under the Philadelphia Zoning Code and the Home Rule Charter and that the effect
and enforceability of the Agreement introduced by Appellant were not within the
Board’s purview.
             Appellant appealed to the trial court and Applicant intervened in the
appeal. Applicant also filed a Motion to Quash the appeal, asserting that Appellant
was not an aggrieved person and lacked standing. The trial court heard argument on
November 16, 2016, and the parties also submitted supplemental briefs. On March
27, 2017, the trial court issued an order affirming the Board’s decision. In its July
12, 2017 opinion in support of its order, the trial court determined that the Board’s
grant of the variance was supported by substantial evidence.
             The trial court also concluded that the Board appropriately determined
that the effect and enforceability of the Agreement were outside its jurisdiction.
Additionally, the trial court determined that the Agreement did not provide sufficient
evidence to establish that Appellant had standing to challenge the Board’s decision


                                          4
as a person aggrieved by the decision.3 Nevertheless, the trial court did not rule on
the Motion to Quash and decided the matter based on the merits.
               On appeal to this Court,4 Appellant asserts that she has standing to
appeal the variance granted by the Board because she is a named party and signatory
to the Agreement and because she owns and resides in a home located approximately
250 feet from the Property. Appellant also argues that Applicant failed to satisfy her
burden of proving the hardship required for the Board to grant the requested
variance.
               Initially, regarding Appellant’s assertion that she has standing based on
the Agreement, this Court has previously determined that the proper remedy for
violations of building and use restrictions created by private contract is enforcement
of the restrictions in court through civil action. See Fayette County v. Cossell, 430
A.2d 1226, 1228 (Pa. Cmwlth. 1981) (“Zoning law has no application to the
resolution of disputes between private parties over real estate interests.”); Calvanese
v. Zoning Board of Adjustment of City of Philadelphia, 414 A.2d 406, 408 (Pa.
Cmwlth. 1980) (“Zoning laws are enacted under the police power, and they have no
concern whatever with building or use restrictions which are created merely by
private contracts. . . . The proper forum to redress such breaches is not the [B]oard.”


       3
          The trial court made no determination regarding whether Appellant had standing as a
person aggrieved by the Board’s decision based on her home’s proximity to the Property or her
participation and interest in the hearing before the Board.

       4
         In an appeal from the grant or denial of a zoning variance where, as here, the trial court
has not taken any additional evidence, this Court’s scope of review is limited to a determination
of whether the zoning hearing board committed an error of law or abused its discretion. Valley
View Civic Association v. Zoning Board of Adjustment of the City of Philadelphia, 462 A.2d 637,
639-40 (Pa. 1983). An abuse of discretion arises only where the zoning board’s findings are not
supported by substantial evidence. Id. at 640. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. Id.
                                                5
(citations omitted)). Therefore, the Board correctly determined that the effect and
enforceability of the private Agreement were not within its purview.
               Next, we address Appellant’s argument that she has standing based on
her status as a person aggrieved by the Board’s decision. For an appellant to have
standing to appeal a determination of the Board, she must demonstrate that she is an
“aggrieved person.”      Spahn v. Zoning Board of Adjustment of the City of
Philadelphia, 977 A.2d 1132, 1149 (Pa. 2009).           However, “[a] party is not
necessarily aggrieved simply because he or she appeared or participated before the
Board.” Scott v. Zoning Board of Adjustment of the City of Philadelphia, 126 A.3d
938, 949 (Pa. 2015). It is well established that to be “aggrieved,” a party must “show
an interest that is substantial, direct, and immediate.”      William Penn Parking
Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975). For an interest to
qualify as “substantial, there must be some discernible effect on some interest other
than the abstract interest all citizens have in the outcome of the proceedings.” Spahn,
977 A.2d at 1151. An interest is direct where the party can demonstrate some
causation of harm to her interest. Id. To be considered immediate, a party’s interest
must have “a causal connection between the action complained of and the injury to
the person challenging it.” Id.
               In Spahn, our Supreme Court consolidated several appeals involving,
inter alia, standing in zoning cases in Philadelphia. Spahn, 977 A.2d at 1136. In
one case, the appellant appealed the Board’s grant of a dimensional variance. Id.
The Court concluded that though the appellant lived one and a half blocks from the
subject property and that he walked past the property every day, his interest was no
different from the interest common to all citizens in regards to obedience of the law.
Id. at 1138.


                                          6
               In another of the consolidated cases, individual objectors argued that
they had standing because they lived in the general vicinity of a proposed billboard.
Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of
City of Philadelphia, 951 A.2d 398, 401-02 (Pa. Cmwlth. 2008). This Court
concluded that the distance between the objectors’ property interest and the subject
property “can be critical because proximity of the properties may be sufficient to
establish a perceivable adverse impact.” Id. at 404. However, we further concluded
that while “an adjoining property owner, who testifies in opposition to a zoning
application before the [Board], has sufficient interest in the adjudication to have
standing to appeal the [B]oard’s decision to the trial court . . . [,] absent an assertion
of a particular harm, standing has been denied to a protestant with no property
interest in the immediate vicinity.” Id. On appeal, the Supreme Court affirmed this
Court’s decisions in both cases because the parties failed to establish that they were
“aggrieved” for purposes of appealing the Board’s decision. Spahn, 977 A.2d at
1152.
               In Armstead v. Zoning Board of Adjustment of City of Philadelphia, 115
A.3d 390, 392 (Pa. Cmwlth. 2015), an applicant requested a variance to convert an
existing sign from vinyl to digital. Objectors to the variance opposed the proposed
sign, but admitted that they could not see the existing sign from the windows of their
homes. Id. at 394-95. The individual objectors argued that they had standing to
appeal the Board’s grant of the variance because they all lived within three blocks
of the sign, at least two of them would be able to see the proposed sign from their
homes at night, and they use the park across from the sign and walk in the vicinity
of the sign.     Id. at 396.    This Court determined that none of the objectors
demonstrated standing because they were neither adjoining property owners nor did


                                            7
they live in the immediate vicinity of the proposed sign, holding that “an objector
does not have standing merely because he or she lives within one and a half blocks
of a property.” Id. at 397. Moreover, this Court determined that none of the
objectors demonstrated standing based on a particular harm because most could not
see the sign from their homes and those that could failed to explain how the proposed
illumination of the sign would cause injury or to what extent the illumination would
affect the homeowners. Id. at 397-98.
              Here, Appellant testified that her property is located within 250 feet of
the Property and that she has safety concerns because she waits for the bus in the
area of the proposed parking spaces. She also testified that she would not have
objected to the grant of a variance if Applicant had combined the Property with the
lot on which she resided or placed a deed restriction on the Property. However, the
trial court did not rule on Applicant’s Motion to Quash. Instead it considered the
merits of Appellant’s appeal, and so did not address these issues to determine the
threshold matter of whether Appellant had standing to appeal the Board’s decision.
              Accordingly, we vacate the order of the trial court and remand to the
trial court to determine whether Appellant had standing to take an appeal from the
Board’s decision.5




                                          MICHAEL H. WOJCIK, Judge




       5
         Given our determination above, this Court need not address the merits of Appellant’s
appeal regarding whether Applicant met her burden of proving the requisite hardship.
                                             8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roseanne Adams,                  :
                                 :
                   Appellant     :
                                 :
             v.                  : No. 534 C.D. 2017
                                 :
                                 :
The Philadelphia Zoning          :
Board of Adjustment              :



                                     ORDER


             AND NOW, this 30th day of August, 2018, the order of the Court of
Common Pleas of Philadelphia County (trial court), dated March 27, 2017, is
VACATED, and this matter is REMANDED to the trial court for proceedings
consistent with this opinion.
             Jurisdiction is relinquished.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
