           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian J. O'Neill,                             :
                       Appellant              :
                                              :
               v.                             : No. 1403 C.D. 2016
                                              : ARGUED: May 1, 2017
The Philadelphia Zoning Board of              :
Adjustment                                    :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
JUDGE HEARTHWAY                                  FILED: August 30, 2017

               Appellant Brian J. O’Neill (O’Neill), a Philadelphia City Councilman,
appeals from the August 4, 2016 order of the Court of Common Pleas of
Philadelphia County (trial court) affirming the Philadelphia Zoning Board of
Adjustment’s (Board) grant of a variance “per the revised plans” for a proposed
residential development.1 We quash O’Neill’s appeal for lack of standing.2


               This case has a long history of court and agency proceedings and
concerns a proposed residential development on property located at 9838-44
Legion Street, Philadelphia (Property). The Property lies in O’Neill’s district.

       1
          The City of Philadelphia filed a notice of non-participation with this Court, stating that
it never participated in this matter and that O’Neill is privately represented. (Docket at 4/03/17).
        2
          At oral argument, O’Neill asserted that Land Endeavor O-2, Inc. waived the issue of
standing by not filing a cross-appeal. The issue of an appellant’s standing to appeal may be
raised in an appellee’s brief, as was done here. See G. RONALD DARLINGTON ET AL.,
PENNSYLVANIA APPELLATE PRACTICE § 501:16 (2016-17).
              On September 18, 2003, applicant/appellee Land Endeavor O-2, Inc.
(Land Endeavor) applied to the Philadelphia Department of Licenses & Inspections
(L&I) for a zoning/use permit to erect two structures containing multiple single-
family dwelling units. (Board’s Findings of Fact (F.F.) No. 1.) The application
proposed access to the dwellings by way of a shared driveway off of Legion
Street.3 L&I denied the permit and years of litigation ensued. (F.F. Nos. 2, 5.)
Ultimately, on June 1, 2011, Land Endeavor returned to the Board for a hearing,
along with protestant, West Torresdale Civic Association, and O’Neill. (F.F. No.
6, Certified Record (C.R.), 6/1/11 Notes of Testimony (N.T.) at 2, 27.) The Board
instructed Land Endeavor to work with the community and come back at a later
time. (See F.F. No. 6.)


              Subsequently, on February 4, 2015, the Board held a hearing, at which
Land Endeavor presented a new development plan. (See F.F. Nos. 11-12.) The
new plan reduced the number of dwelling units and still provided for access to the
units by way of a shared driveway off of Legion Street (Revised Plans). (F.F. Nos.
12-14.) The Revised Plans were stamped by the City’s Planning Commission and
Streets Department, and had been given conceptual approval by the City’s Water
Department. (F.F. No. 16.) Although Land Endeavor had expected to present the
Revised Plans as part of a universal settlement, O’Neill raised concerns to the
Board. (F.F. No. 17.) O’Neill referred to the driveway as a “private street,” and
asked the Board to require that the “street” itself and the water and sewer


       3
        Certified Record (C.R.), Land Endeavor 02, Inc. v. City of Philadelphia (Pa. Cmwlth.,
No. 268 C.D. 2006, filed August 23, 2007) (Land Endeavor 02), slip opinion (op.) at 2.



                                             2
underneath it be built as if the “street” was a city street. (F.F. Nos. 18-19.) The
Planning Commission representative testified that her agency had no objection to
the development at this location. (F.F. No. 24.) The Board held its decision for
further details regarding the water and sewer utilities and surfacing of the “street,”
and Land Endeavor and O’Neill subsequently submitted letters regarding their
positions. (F.F. Nos. 25-28.) On August 18, 2015, the Board granted the variance
per the Revised Plans. (F.F. No. 29.)


             O’Neill appealed from the Board’s decision to the trial court. Land
Endeavor intervened to oppose the appeal. O’Neill argued that Land Endeavor
failed to establish that it was entitled to a variance. Additionally, O’Neill argued
that the Pennsylvania Supreme Court case of Zimmerman v. Zoning Board of
Adjustment of City of Philadelphia, 654 A.2d 1054 (Pa. 1995) controlled, and that
pursuant to Zimmerman, Land Endeavor first had to apply to the City for a street to
be placed on the City plan before applying for a zoning variance due to lack of
street frontage. In response, Land Endeavor argued, inter alia, that O’Neill lacked
standing to appeal.


             The trial court ruled from the bench that O’Neill had standing and
explained its reasoning. (Reproduced Record at 114a, 5/4/16 transcript at 10-11.)
Subsequently, the trial court issued an order denying O’Neill’s appeal on the merits
and affirming the Board’s decision. In its opinion in support of its order, the trial
court stated that the Board reviewed all the relevant factors for a variance, and the
trial court determined that the Board’s decision was supported by substantial




                                          3
evidence. Additionally, the trial court ruled that Zimmerman was not controlling
because it was factually distinguishable.


              O’Neill now appeals to this Court from the trial court’s order. Before
this Court, O’Neill argues that (i) the trial court erred in failing to find Zimmerman
controlling; and (ii) the Board erred in granting the variance because the finding of
hardship is not supported by substantial evidence and because Land Endeavor
created the hardship. In response, in addition to refuting these arguments, Land
Endeavor argues that O’Neill lacks standing to appeal the Board’s decision.


              We will first address the threshold question of standing. A challenge
to a party’s standing raises a question of law subject to this Court’s plenary, de
novo review. Americans for Fair Treatment, Inc. v. Philadelphia Federation of
Teachers, 150 A.3d 528 (Pa. Cmwlth. 2016).


              Land Endeavor argues that O’Neill does not have standing to appeal
the Board’s decision, either in his individual capacity or in his capacity as a City
Council member. Land Endeavor argues that O’Neill is not personally aggrieved
and does not have legislative standing.


              In response, O’Neill asserts that his standing to appeal is supported on
three grounds: (i) section 17.1 of the First Class City Home Rule Act4 (Home Rule
Act); (ii) section 14-303(15)(b)(.1) of the Philadelphia Zoning Code (Code); and

       4
        Act of April 21, 1949, P.L. 665, added by Section 2 of the Act of November 30, 2004,
P.L. 1523, 53 P.S. § 13131.1.


                                             4
(iii) legislative standing. O’Neill contends that any one of these three grounds is
sufficient to establish his standing, and he does not need to show that he is
aggrieved by the Board’s decision. (O’Neill’s Reply Brief at 6.) O’Neill contends
that in Philadelphia, it is customary for councilmembers to appeal zoning
decisions. O’Neill points out that City councilmembers represent the community
and its members and to deny standing to councilmembers would lock the
courthouse doors to his constituents who cannot afford lawyers. He also points out
that in ruling on the issue of standing, the trial court explained it would be
“cumbersome” to the court to require City Council to pass a resolution authorizing
the appeal before the trial court could adjudicate it. O’Neill also argues that he has
legislative standing because the Board usurped City Council’s authority to legislate
for public streets and made an “end run” of the process by providing a private
street by means of a variance.


              We will first address O’Neill’s arguments that he has standing under
the Home Rule Act and the Code.5 These arguments involve an issue of statutory
construction, which presents a pure question of law. See Spahn v. Zoning Board of
Adjustment, 977 A.2d 1132 (Pa. 2009). As such, our standard of review is de
novo, and our scope of review is plenary. Id. Any issue involving the construction
of a statute or ordinance must begin by focusing on the plain language. See
Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b);
Spahn; cf. Trojnacki v. Board of Supervisors Solebury Township, 842 A.2d 503

       5
          The Home Rule Act takes precedence and controls over the Code where there are
conflicting provisions concerning standing to appeal a zoning decision. Spahn v. Zoning Board
of Adjustment, 977 A.2d 1132 (Pa. 2009). Because we do not discern a conflict between the
Home Rule Act and the Code with respect to the issue before us, we will address both.


                                             5
(Pa. Cmwlth. 2004) (stating that although the Statutory Construction Act of 1972,
1 Pa. C.S. §§ 1501-1991, does not expressly apply to zoning ordinances, the
principles contained in that act are followed when construing a local ordinance).


            Section 17.1 of the Home Rule Act provides:

                In addition to any aggrieved person, the governing
                body vested with legislative powers under any charter
                adopted pursuant to this act shall have standing to
                appeal any decision of a zoning hearing board or
                other board or commission created to regulate
                development within the city. As used in this section,
                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. Thus, under the plain language of the Home Rule Act, standing
to appeal a zoning decision in the City is limited to two classes—aggrieved persons
and the governing body vested with legislative powers, Spahn, which in
Philadelphia is the City Council, see Code, § 14-301(2)(a).


            Section 14-303(15)(b)(.1) of the Code provides:

                A final decision made by the Zoning Board or the
                Commission pursuant to this Zoning Code may be
                appealed to a Pennsylvania Court of Common Pleas
                by any aggrieved party or by City Council pursuant
                to Act 193 of 2004 (Act of November 30, 2004, P.L.
                1523, 53 P.S. § 13131.1) within 30 days of the
                decision or such other time as may be provided by
                law.


                                         6
Thus, an appeal to the trial court from the Board’s decision may be taken by any
aggrieved party or by City Council. O’Neill argues that the Home Rule Act and
the Code grant standing to City Council and City Council is not required to be
aggrieved.


             The plain language of both the Home Rule Act and the Code grants
standing to City Council as a body; nowhere does either grant standing to the
individual councilmembers. The Home Rule Act and Code could have easily been
drafted to include language to grant standing to the individual councilmembers if
that was the intent; however, neither was drafted as such. This Court cannot insert
language or otherwise redraft the Home Rule Act or the Code. Moreover, whether
councilmembers have appealed zoning decisions in the past and whether
constituents can afford to appeal are not considerations for this Court and do not
allow this Court to ignore the plain language of the Home Rule Act and the Code.
Likewise, the fact that the trial court deems it “cumbersome” for City Council to
pass a resolution authorizing a councilmember to appeal a zoning decision before
the trial court adjudicates the matter is not relevant. Our review of the pleadings
indicates that O’Neill has appealed the Board’s decision in his capacity as an
individual member of City Council. Thus, O’Neill lacks standing under the Home
Rule Act and the Code to appeal from the Board’s decision.


             We next turn to whether O’Neill has legislative standing to appeal the
Board’s decision. In Fumo v. City of Philadelphia, 972 A.2d 487 (Pa. 2009), the
Pennsylvania Supreme Court reviewed jurisprudence concerning standing and
stated:


                                         7
              Legislators and council members have been permitted to
              bring actions based upon their special status where there
              was a discernible and palpable infringement on their
              authority as legislators. The standing of a legislator or
              council member to bring a legal challenge has been
              recognized in limited instances in order to permit the
              legislator to seek redress for an injury the legislator or
              council member claims to have suffered in his official
              capacity, rather than as a private citizen. Legislative
              standing has been recognized in the context of actions
              brought to protect a legislator's right to vote on
              legislation or a council member's viable authority to
              approve municipal action. Legislative standing also has
              been recognized in actions alleging a diminution or
              deprivation of the legislator's or council member's power
              or authority. At the same time, however, legislative
              standing has not been recognized in actions seeking
              redress for a general grievance about the correctness of
              governmental conduct.


Id. at 501.


              O’Neill argues that the Board’s decision violated the City’s authority
to create streets. O’Neill argues that the Board usurped City Council’s authority to
legislate for and create public streets, and that Land Endeavor made an “end run”
of the process by providing a private street by means of a variance. O’Neill
maintains that he has suffered an impairment or deprivation of his official authority
to act as a legislator, and therefore, he has legislative standing.


              Although O’Neill argues that the Board usurped his power to legislate
for a City Street, which seemingly would give him legislative standing if a street
were in fact at issue, O’Neill has mischaracterized the issue. Contrary to O’Neill’s

                                            8
characterization, the variance did not create a street. Rather, the variance, based
upon the Revised Plans, includes a driveway. Land Endeavor is not proposing, and
has never proposed, a public street. O’Neill simply prefers that Land Endeavor
propose a City street, rather than construct a driveway.6                    However, O’Neill’s
preference is not a legally protected interest. The Board has exclusive authority to
grant variances, see Code § 14-301(4)(b)(.1)(.b), and significantly, the variance
here does not involve a street. The Board’s decision is not a discernible and
palpable infringement on O’Neill’s authority as a legislator, nor does it deprive or
diminish O’Neill’s right to vote or other power or authority. Both issues O’Neill
raises on appeal (i.e., the trial court’s failure to follow Zimmerman and whether
Land Endeavor established it was entitled to a variance) are general grievances
about the correctness of the decisions of the trial court and the Board. Legislative
standing does not lie for such challenges. See Fumo.7


               Accordingly, for the foregoing reasons, O’Neill lacks legislative
standing to appeal the Board’s decision under the circumstances here. Therefore,
we quash O’Neill’s appeal.

                                               __________________________________
                                               JULIA K. HEARTHWAY, Judge

       6
          O’Neill does not argue that the proposed driveway does not meet the definition of a
“driveway” under the Code. Cf. Land Endeavor O-2, slip op. at 8 (discussing trial court’s
decision and statement that the proposed driveway fits the Code’s definition of a “driveway”).
        7
           O’Neill argues that Fumo does not apply because in Fumo, the Supreme Court
determined that the statute at issue did not contemplate a role for City Council in the issuance of
the license, and here the Home Rule Act and the Code confer standing upon City Council to
appeal decisions of the Board. While City Council may appeal zoning decisions, to have
legislative standing, it is still necessary for the Board’s decision to undercut the authority of City
Council or a councilman, or diminish their vote. As stated, that did not occur here.


                                                  9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian J. O'Neill,                   :
                    Appellant       :
                                    :
             v.                     : No. 1403 C.D. 2016
                                    :
The Philadelphia Zoning Board of    :
Adjustment                          :



                                   ORDER


             AND NOW, this 30th day of August, 2017, the appeal of Brian J.
O’Neill is hereby quashed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian J. O'Neill,                              :
                              Appellant        :
                                               :
               v.                              :   No. 1403 C.D. 2016
                                               :   Argued: May 1, 2017
The Philadelphia Zoning Board of               :
Adjustment                                     :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


CONCURRING OPINION
BY JUDGE BROBSON                                   FILED: August 30, 2017


               I join in the majority’s disposition of this appeal. Specifically, I agree
that neither the First Class City Home Rule Act1 nor the Philadelphia Zoning Code
confers standing on an individual councilperson to challenge the Philadelphia
Zoning Board of Adjustment’s grant of a variance. I write separately because I can
fathom a circumstance where the Philadelphia City Council (City Council) may not
be nimble enough to act as a body within the time constraints for challenging such
a decision. In that situation, it may be adequate for a councilperson to initiate a
challenge on behalf of City Council, with prompt formal action by City Council
thereafter ratifying the appeal.

                                     P. KEVIN BROBSON, Judge

      1
          Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157.
