          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of East Torresdale         :
Civic Association                        :
                                         :
                                         :   No. 562 C.D. 2019
Appeal of: Kevin Goodchild               :   Submitted: March 24, 2020



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge (P.)
             HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: May 4, 2020


             Kevin Goodchild (Landowner) appeals from the order of the Court of
Common Pleas of Philadelphia County (trial court), dated April 17, 2019, which
granted the appeal of the East Torresdale Civic Association (Association) and
reversed the decision of the Philadelphia Zoning Board of Adjustment (Board),
thereby denying Landowner’s use variance. Landowner also challenges the trial
court’s order dated March 4, 2019, denying his motion to quash the Association’s
appeal.
             Landowner owns Maggie’s Waterfront Café, which is located at 9242
North Delaware Avenue, Philadelphia (Property). See Board’s Decision at 1. The
Property has been zoned RSA-5 residential since the time Landowner purchased it
in December 2007. Board’s Findings of Fact (F.F.) 8. In 2014, the Board granted
Landowner’s zoning/use permit “for the erection of a two (2) story addition and a one
(1) story addition over a one (1) story portion of an existing building, with the erection
of a canopy and an accessory storage shed.” F.F. 13. The Board conditioned the
approval on several provisos detailed in an August 8, 2014 letter from the Association,
a registered community organization1 with the City of Philadelphia (City), which
prohibited the use of the outdoor patio, among other things. See id.; Supplemental
Reproduced Record (S.R.R.) at 73b-77b. The August 8, 2014 letter stated the intent
was that “there will be no features or functions (tables, chairs, etc.) that would allow,
invite, entice or promote patrons to congregate outside.” S.R.R. at 76b.
              In 2016, Landowner purchased an adjacent parcel at 5216 Arendell
Avenue and consolidated the two parcels. Application for Stay ¶ 7. The additional
land is situated to the northwest of the Property between an outdoor patio and
neighbors’ houses.
              Thereafter, Landowner applied to the City’s Department of Licenses and
Inspections (L&I) for a zoning/use registration permit for the Property. F.F. 1.
Landowner proposed: (1) construction of a two-story addition to an existing structure;
(2) extension of the existing restaurant; and (3) erection of a one-story walk-in box and
a detached shed. F.F. 1. The Department denied the permit, stating, inter alia, the
existing restaurant had been originally approved by variance, so any extension or
modification of the use required further Board approval. F.F. 2. Landowner appealed
to the Board and amended his application to include a request for approval for outdoor
seating. F.F. 3-4. L&I then issued a revised refusal denying the amended proposal.

       1
         Registered community organizations, or RCOs, are groups that are concerned with the
physical development of their community. Registered community groups receive advance notice
of projects within their community that will be reviewed by the Board, hold public meetings where
comments on planned development may be made and receive notification of variance or special
exception     applications.        See    https://www.phila.gov/programs/registered-community-
organizations-rcos/ (last visited March 17, 2020).

                                               2
F.F. 5. In addition to the reasons set forth in its initial denial, L&I also stated that the
variance for the existing restaurant included a proviso stating, “no outdoor seating.”
F.F. 5. Therefore, L&I concluded that the request for outdoor seating was not
consistent with the previous proviso and required Board approval. F.F. 5.
              The Board held a June 13, 2018 hearing on Landowner’s appeal at which
the Association, as well as other neighbors, opposed the variance application. F.F. 15,
35, 47 & 54. William Kennedy, vice-president of the Association, testified. F.F. 47.
Mr. Kennedy testified that he lives about three-quarters of a mile from the Property but
he did not otherwise place his address on the record. Hearing Transcript (H.T.) 6/13/18
at 36, Reproduced Record (R.R.) at 205a. He further testified regarding the conditions
placed on Landowner’s 2014 permit. F.F. 48-49.
              The Board granted the variances on July 11, 2018, with the conditions
that there cannot be any outdoor music and no use of the outdoor café after 9:30 p.m.,
that deliveries must be made between 8:00 a.m. and 10:00 a.m. only, and that
Landowner provide a registered community organization member with an email and
phone number for contact persons. F.F. 59.
              The Association appealed to the trial court. Landowner filed a motion
to quash the appeal on the ground that the Association lacked standing to appeal,
which the trial court denied by order dated March 1, 2019. After argument on the
merits of the Association’s appeal, the trial court, by order dated April 17, 2019,
reversed the Board’s determination and denied Landowner’s application for a use
variance.   In doing so, the trial court concluded that the alleged unnecessary
hardship, that is, the prohibition against food and beverage service on the outdoor
patio, was self-created by Landowner when he agreed to the 2014 proviso. Trial
Court Opinion at 8-9.


                                             3
               Landowner then appealed to this Court.2 Before this Court,3 Landowner
raises four arguments: (1) that the trial court erred in failing to grant Landowner’s
motion to quash, as the Association lacks standing; (2) that the trial court erred by
reversing the entire Board decision when the only issue preserved on appeal was
related to the outdoor patio and the trial court failed to address issues other than the
outdoor patio; (3) that the Board and the trial court incorrectly applied the variance
standard to a request for a modification of a condition; and (4) that Landowner
satisfied the standard for a modification to justify the Board’s grant of approval.
Landowner’s Brief at 4.
   1. The Association’s Standing
               Landowner contends that the Association did not demonstrate
organizational standing by virtue of its organizational purpose because it failed to
prove that its interests are greater than that of any other citizen or that any of its
members are aggrieved. See Landowner’s Brief at 14-16. Landowner argues that
the Association did not show evidence of property interests in the immediate
vicinity, nor did it assert any particular harm suffered due to the variances. Id. at 11.
Moreover, the vice-president of the Association, Mr. Kennedy, lives almost a mile
away from the Property and did not place his address on the record. Id. at 11 & 16-



       2
        Landowner filed an Emergency Application for a Stay Pending Appeal Pursuant to
Pa.R.A.P. 1732, which this Court denied. In Re: Appeal of East Torresdale Civic Association (Pa.
Cmwlth., No. 562 C.D. 2019, filed Aug. 30, 2019) (single-judge op.) (Goodchild I).
       3
          Where, as here, the trial court does not take additional evidence, this Court’s review is
limited to determining whether the Board committed an error of law or an abuse of discretion. See
Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa. 1983). A zoning
board abuses its discretion “only if its findings are not supported by substantial evidence.” Id. at
640. Substantial evidence is such evidence a reasonable mind might accept as adequate to support
a conclusion. Id.

                                                 4
17. Landowner also argues that participation alone in a Board hearing does not
confer standing to appeal. Id. at 17-18.
              A challenge to a party’s standing raises a question of law subject to this
Court’s plenary, de novo review. Ams. for Fair Treatment, Inc. v. Phila. Fed’n of
Teachers, 150 A.3d 528 (Pa. Cmwlth. 2016).
              Section 17.1 of the First Class City Home Rule Act4 (Home Rule Act)
limits standing to appeal a zoning decision to two classes—aggrieved persons and
the governing body. 53 P.S. § 13131.1; O’Neill v. Phila. Zoning Bd. of Adjustment,
169 A.3d 1241, 1245 (Pa. Cmwlth. 2017). Section 17.1 further provides, “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 development.” 53 P.S. § 13131.1. “To have standing, a party
must demonstrate a substantial, direct and immediate interest in the outcome of
litigation as opposed to a remote and speculative interest.” Soc’y Hill Civic Ass’n v.
Phila. Bd. of License & Inspection Review, 905 A.2d 579, 586 (Pa. Cmwlth. 2006).
“A substantial interest is one that surpasses the common interest of all citizens in
procuring obedience to the law.” Id. at 586 n.3. “A direct interest requires a showing
that the matter complained of has caused harm to a party’s interest, and an immediate
interest involves the nature of the causal connection between the action complained
of and the injury to the party challenging it.” Id.
              In Society Hill, this Court recognized an association’s standing to
appeal to the trial court from a Board decision affirming a decision of the City’s
architectural committee that allowed the landowner to replace deteriorated marble
cornices with fiberglass cornices. Id. at 583. The association appealed to the trial

       4
        Act of April 21, 1949, P.L. 665, as amended, added by Section 2 of the Act of November
30, 2004, P.L. 1523, 53 P.S. § 13131.1.
                                              5
court, and the landowner and the City sought to quash the appeal based on the
association’s purported lack of standing. Id. The trial court denied the motion to
quash, concluding that the association had a substantial, direct and immediate
interest in the preservation of historic attributes of the area. Id. On appeal, we noted
that the association and its members were directly involved in the subject of the
litigation by negotiating with the landowner for preservation of the facades and by
expressing their concerns at various architectural committee meetings and before the
City’s Historical Commission. Id. at 586. We concluded that the association’s
activities and purpose were sufficient to provide a direct, substantial and immediate
interest in the outcome of the litigation. Id.; see also Spahn v. Zoning Bd. of
Adjustment, 977 A.2d 1132, 1152 (Pa. 2009) (recognizing this Court in Society Hill
relied upon association’s intimate involvement in negotiations for preservation of
facades and participation in public hearings to conclude association had standing to
appeal).
             We acknowledge that Society Hill involved Philadelphia’s Historic
Preservation Ordinance, not an appeal of a zoning decision. Society Hill, 905 A.2d
at 581. Nevertheless, this Court still applied the aggrieved person standard, id. at
586, and we find the facts and reasoning of that case to be on point. In Society Hill,
the association was held to have standing because it and its members were involved
in negotiating the underlying preservation requirements that the developer sought to
modify and expressed their concerns at various public meetings. Id. at 582-83 &
586.
             Here, the Association is a registered community organization with the
City. Significantly, the Association was instrumental in the 2014 proviso that
allowed Landowner’s expansion of the Property in 2014 but without the availability


                                           6
of outdoor seating. F.F. 7 & 13. Like the association in Society Hill, the Association
and its members were directly involved in the subject of this litigation by negotiating
an agreement with Landowner that resulted in the 2014 proviso that Landowner now
seeks to modify. See S.R.R. at 73b-77b. Additionally, the Association also sought
“relief” from L&I to enforce violations of the 2014 proviso and participated in the
hearings that were the subject of Landowner’s 2017 variance application which
sought, among other things, to modify the 2014 proviso. See F.F. 47-52; H.T.
6/13/18 at 36-40, R.R. at 76a-80a. Therefore, we conclude that the Association had
standing to appeal, and the trial court did not err in denying Landowner’s application
to quash the Association’s appeal.
   2. Variances Challenged Before the Trial Court
             Landowner contends that the trial court erred by reversing the entire
Board decision because the Board decision granted multiple variances and a
modification of the proviso, and the Association only challenged the use for outdoor
seating before the trial court. Landowner’s Brief at 11-12 & 22-24.
             The Association disagrees that it only challenged the outdoor seating
before the trial court.   The Association points to its “Statement of Questions
Involved” section of its brief before the trial court, which asks whether the Board
“commit[ted] an error of law or an abuse of discretion when it granted [Landowner]
a use variance to expand the existing structures at the Property and permit Applicant
to use the outdoor patio at the Property for food and beverage service?”
Association’s Brief at 33 (emphasis in original) (citing the Association’s Trial Court
Brief at 4). The Association further points out that it argued Landowner “produced
little or no evidence regarding the economic impact related to the proposed
expansion of the existing structure.” Association’s Brief at 34 (citing R.R. at 122a).


                                          7
The Association points out that in support of this contention, it quoted the following
testimony in a footnote:


              To the extent Applicant produced evidence regarding its
              business operations, such evidence (if it qualifies as such)
              was limited to the proposed expansion of the existing
              structure. Counsel for Applicant stated that: (a) “[t]he
              expansion of the building is necessary for the continued
              operation of the previous[ly] approved second floor
              banquet” (Notes of Testimony (N.T.) 17:15-18); (b) “[n]ot
              having a kitchen on the second floor, becomes problematic
              when you’re trying to do catered events” (N.T. 5:20-22).

Association’s Brief at 34 (citing R.R. at 122a). The Association further points out
that Landowner raised this same argument in its Emergency Motion for Stay Pending
Appeal Pursuant to Pa.R.A.P. 1732 (Motion for Stay) filed with this Court. Id. The
Association contends that this Court found that it appropriately raised issues that
referred and related to the expansion of the existing restaurant structure. Id. The
Association quotes from this Court’s single-judge opinion, authored by the
undersigned, which states, “[o]ur review of [the Association’s] brief in support of its
appeal to the [t]rial [c]ourt reveals that [the Association] gave the same attention to
these issues as Landowner’s evidence in support of its variance request before the []
Board, that is, very little.” Association’s Brief at 34-35 (quoting Goodchild I, slip
op. at 9, n.5).
              Initially, we note that, contrary to the Association’s assertion, in
denying Landowner’s Motion for Stay, this Court did not decide the underlying
merits or whether the Association appropriately raised issues concerning the
expansion of the existing restaurant structure. Next, our review of the Association’s
trial court brief in its entirety, as well as its argument before the trial court, reveals

                                            8
that the Association only challenged the outdoor seating, as Landowner contends.
While the Statement of Questions Involved may be ambiguous and, arguably, broad
enough to include structures in addition to the outdoor patio, it also, arguably, is
limited to only the outdoor patio, as it asks whether the trial court “commit[ted] an
error of law or an abuse of discretion when it granted [Landowner] a use variance
to expand the existing structures at the Property and permit Applicant to use the
outdoor patio at the Property for food and beverage service?” Association’s Trial
Court Brief,5 R.R. at 112a (emphases added). Notably, however, the Association
lists five sub-questions to the aforementioned question, all asserting errors as they
relate to the standards for granting a variance. These questions refer to only “a use
variance” in the singular and specifically mention only the food and beverage service
on the outdoor patio. R.R. at 112a. Additionally, and significantly, the argument
portion of the Association’s brief only develops arguments as they relate to the
outdoor patio.      See generally id. at 117a-30a.           Indeed, even the footnote the
Association quotes actually undermines its position. The Association’s trial court
brief states Landowner “produced little or no evidence regarding the economic
impact related to the proposed expansion of the existing structure” and then contains
a footnote stating that to the extent Landowner did, the evidence related to the
proposed expansion of the existing structure, namely the second floor banquet. R.R.
at 123a. Merely mentioning the expansion of the existing structures relating to the
second floor is not putting them at issue. Rather, the implication here is just the
opposite— the Association is saying to the extent there was such evidence, it related
to something else, i.e., the second floor banquet/kitchen facilities and not the outdoor
patio. Finally, the Association does not cite to anywhere in the hearing transcript of

       5
         The pages of the Association’s trial court brief are not numbered. Therefore, we will cite
only to the reproduced record page numbers.
                                                9
oral argument before the trial court where it raised and preserved a challenge to any
variance other than one related to the outdoor seating. See Pa.R.A.P. 2117(c)
(requiring brief to contain statement of place of preservation of issue). Therefore,
we conclude that, before the trial court, the Association only challenged the Board’s
decision as it related to the 2014 proviso. Further, we agree with Landowner that,
although the trial court’s decision only addressed the 2014 proviso, its order reverses
the Board’s decision in its entirety. Consequently, to the extent the trial court
reversed the Board’s decision as it related to the other variances sought, such was
error. Accordingly, what remains for our disposition is Landowner’s challenges
related to the 2014 proviso.
   3. Standard to Apply to Request to Modify 2014 Proviso
             Landowner argues that both the Board and the trial court incorrectly
applied the variance standard to a request for a modification of a condition.
Nevertheless, Landowner argues that it satisfied the standard for a modification to
justify the Board’s grant of approval permitting outdoor patio service. Landowner
requests that this Court reverse the trial court’s decision and reinstate the Board’s
decision or, alternatively, remand the matter to the Board to apply the appropriate
standard. Landowner’s Brief at 34.
             In response, the Association argues that Landowner is not entitled to
the relief he seeks. The Association argues that to the extent the traditional variance
standard applied, Landowner failed to meet his heavy burden for a variance.
Association’s Brief at 17. The Association contends that, before the trial court,
Landowner did not argue that the record supported the Board’s decision under the
traditional grounds for a variance. Id. at 24. The Association argues, however, that
even under the modification standard Landowner advanced, Landowner is not


                                          10
entitled to relief, because the record does not support a finding of a change in
circumstance that rendered the 2014 proviso inappropriate or an absence of injury to
the public interest. Id. at 24-25.
             This Court has previously considered a property owner’s request to
remove conditions that a zoning hearing board had attached to its grant of a variance.
See, e.g., German v. Zoning Bd. of Adjustment, 41 A.3d 947 (Pa. Cmwlth. 2012);
Ford v. Zoning Hearing Bd. of Caernarvon Twp., 616 A.2d 1089 (Pa. Cmwlth.
1992). In analyzing the issue, we referred to and quoted from Robert S. Ryan’s
treatise on zoning, stating:

             An owner which wishes to obtain a modification of a
             condition which has become final can obtain relief if he
             establishes:

             (1) Either grounds for traditional variance (Saber [v.
             Zoning Hearing Bd. of the Borough of Roaring Spring
             Borough, 526 A.2d 464 (Pa. Cmwlth. 1987)]) or changed
             circumstances which render the condition inappropriate
             (Amoco [Oil Co. v. Zoning Hearing Bd. of Middletown
             Twp., 463 A.2d 103 (Pa. Cmwlth. 1983)]); and

             (2) Absence of injury to the public interest.


Ford, 616 A.2d at 1092 (quoting Robert S. Ryan, Pennsylvania Zoning Law and
Practice, § 9.4.20 (1970)); see also German, 41 A.3d at 950. We explained:


             Because, as noted above, conditions imposed by a zoning
             hearing board are presumed to be for the purpose of
             protecting the public interest, when a party demonstrates a
             change in circumstances related to the land at issue which
             indicates that the conditions are no longer appropriate for
             the protection of the public’s interest, a zoning hearing
             board may re-evaluate the conditions it originally
                                         11
              imposed. If a party demonstrates a change in
              circumstances, then a reviewing body may proceed to
              consider whether the original conditions continue to serve
              the function of protecting the public interest that gave rise
              to the particular conditions in the first place.
German, 41 A.3d at 950.
              Notably, here, Landowner does not argue that the record supported the
Board’s decision under the grounds for a traditional variance. Thus, any challenge
to the trial court’s determination as it relates to Landowner’s failure to establish relief
on the basis of meeting the elements for a traditional variance is not before us.
Nevertheless, Landowner argues the Board and trial court applied the “incorrect”
standard. While the Board’s and trial court’s consideration of whether Landowner
met the standards for a traditional variance was not incorrect, it was incomplete, as
pursuant to the first requirement for a modification, an applicant must establish
“[e]ither grounds for [a] traditional variance or changed circumstances which render
the condition inappropriate . . . .” Ford, 616 A.2d at 1092 (emphasis added); see
also German, 41 A.3d at 950. Because both the trial court and the Board failed to
apply the changed circumstances standard, we must remand the matter to the Board
to apply this standard.
              Accordingly, in sum, we: (1) affirm the trial court’s determination that
the Association had standing to appeal from the Board’s decision; (2) reverse the
trial court’s order to the extent it reversed the grant of any variances other than the
use variance for the outdoor patio and reinstate the Board’s determination with
respect to those other variances; and (3) affirm, in part, the trial court’s decision to
the extent it reversed the grant of the use variance for the outdoor patio, but vacate,
in part, the trial court’s decision, to the extent it affirmed the Board’s failure to
consider whether Landowner is entitled to a modification of the 2014 proviso

                                            12
condition.   This matter is remanded to the Board to decide whether Landowner
established changed circumstances which render the condition inappropriate and
whether there is an absence of injury to the public interest. See Ford, 616 A.2d at
1092; see also German, 41 A.3d at 950.



                                      __________________________________
                                      CHRISTINE FIZZANO CANNON, Judge




                                         13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of East Torresdale            :
Civic Association                           :
                                            :
                                            :   No. 562 C.D. 2019
Appeal of: Kevin Goodchild                  :


                                     ORDER


             AND NOW, this 4th day of May, 2020, the order of the Court of
Common Pleas of Philadelphia County (trial court), dated April 17, 2019, is: (1)
REVERSED in part to the extent it denied any variance other than the use variance
for the outdoor patio; (2) AFFIRMED, in part, to the extent it denied the use variance
for the outdoor patio; and 3) VACATED, in part, to the extent the trial court
affirmed the Philadelphia Zoning Board of Adjustment’s (Board) failure to consider
whether Kevin Goodchild (Landowner) is entitled to a modification of the 2014
proviso condition. As such, the Board’s determinations with respect to all variances
other than the use variance for the outdoor patio are reinstated, and we REMAND
this matter to the Board to apply the test of whether Landowner established changed
circumstances which render the condition inappropriate and an absence of injury to
the public interest.
             Jurisdiction relinquished.



                                          __________________________________
                                          CHRISTINE FIZZANO CANNON, Judge
