                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elke Plaxton                             :
                                         :
                    v.                   :
                                         :
Zoning Board of Adjustment and           :
1903 Spring Garden Associates, LP        :
                                         :   No. 438 C.D. 2018
Appeal of: Arthur and Elke Plaxton       :   Submitted: January 25, 2019


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                  FILED: July 9, 2019

               Arthur Plaxton (Mr. Plaxton) and Elke Plaxton (Mrs. Plaxton)
(collectively, Objectors) appeal, pro se, from the Philadelphia County Common Pleas
Court’s (trial court) February 22, 2018 order denying Objectors’ appeal and affirming
the City of Philadelphia (City) Zoning Board of Adjustment’s (ZBA) April 25, 2017
decision granting 1903 Spring Garden Associates, LP (Applicant) a use variance to
park four vehicles in the rear yard of its property located at 1903 Spring Garden
Street, Philadelphia (Property) and a dimensional variance from the Philadelphia
Zoning Code’s (Code) landscaping requirements. Objectors present three issues for
this Court’s review: (1) whether the trial court erred by determining that Objectors
lacked standing; (2) whether the trial court abused its discretion by applying the
unclean hands doctrine; and (3) whether the trial court erred or abused its discretion
by upholding the ZBA’s decision.
               In Plaxton v. Zoning Board of Adjustment (Pa. Cmwlth. No. 727 C.D.
2015, filed June 13, 2016) (Plaxton I), this Court reversed the ZBA’s ruling that rear
parking on Applicant’s property was permitted as of right, and granted Applicant a
variance from the Code’s landscaping requirement due to Applicant’s inability to use
the Property.    This Court remanded the matter for the ZBA to determine whether
Applicant is entitled to a variance for the proposed parking and, if so, whether a
variance should be granted from the Code’s landscaping requirements.
             On February 15 and March 22, 2017, the ZBA held remand hearings
during which various witnesses testified in support of the variances. The witnesses
described their concerns about the lack of parking in the neighborhood and explained
that it was usual and customary for property owners to use rear yards for parking.
See ZBA Decision at 3. Further,

             Objectors testified that they had previously obtained zoning
             approval to alter the rear of their property to create a rear
             yard and that Objectors have been using this rear yard as
             space in which to park their vehicle for many years. Mrs.
             Plaxton testified that to pull their vehicle into their rear
             yard, they do not have to drive over anyone else’s property.
             However, Mrs. Plaxton claimed that, to pull out of the
             parking spaces Applicant seeks to use, cars have to
             ‘trespass’ over her public sidewalk ([] which Objectors are
             legally obligated to maintain) and into her yard before they
             can drive away down Monterey Street. Moreover, Mrs.
             Plaxton testified that the cars leave tire marks in her yard.
             Mr. Plaxton also testified that the traffic in and out of
             Applicant’s proposed parking spaces has not caused the
             poor, cracking, and deteriorating condition of his sidewalks.

Trial Ct. Op. at 4.
             On April 25, 2017, the ZBA unanimously approved Applicant’s
variances, allowing the Property’s rear yard area to be used for four parking spaces.
On May 5, 2017, Objectors appealed to the trial court. On February 22, 2018, the
trial court dismissed Objectors’ appeal because they lacked standing and were




                                          2
ineligible for equitable relief based on the doctrine of unclean hands.1 In dismissing
the appeal, the trial court determined:

              Objectors did not have standing to appeal from the [ZBA]’s
              decision to the [trial court] because Objectors failed to
              demonstrate that they were ‘aggrieved’ persons. More
              specifically, Objectors failed to prove that the granting
              of the variances would have some discernible effect on
              some interest of the Objectors in a way that is greater
              than that of any other citizens. The credible evidence at
              the hearing indicated that vehicles entering or leaving
              Applicant’s proposed parking spaces would not trespass
              over Objectors’ property or affect it in any way.
              The [ZBA] found [Applicant’s agent’s] testimony as
              credible and persuasive and accepted that cars entering or
              leaving Applicant’s proposed parking spaces would not
              trespass over Objectors’ property or effect it in any way.
              Moreover, the [ZBA] found [Applicant’s agent’s] testimony
              consistent with the [City’s] Streets Department’s approval
              of the parking spaces. Indeed, Objectors even stated that to
              move vehicles into and out of their rear yard (which they,
              like the Applicant, use for parking), they do not have to
              drive over anyone else’s property. Mr. Plaxton[] even
              stated that the cars entering or leaving Applicant’s proposed
              parking spaces had not and would not have any effect on
              the condition of Objectors’ sidewalk.
              Thus, the variances did not harm any interest of Objectors
              in any way that was greater than any other citizen. As such,
              Objectors failed to demonstrate that they are ‘aggrieved’
              persons with standing to appeal from the [ZBA]’s decision
              to the [trial court].

Trial Ct. Op. at 7-8 (emphasis added; citations omitted). The trial court further
reasoned:

              Objectors were ineligible for equitable relief - in other
              words, barred from objecting to the variances - based upon

       1
         Because the trial court dismissed the appeal for lack of standing, it did not address the
substantive questions pertaining to whether the ZBA properly granted the variances.
Notwithstanding, the trial court affirmed the ZBA’s decision granting the variances.
                                                3
               the doctrine of unclean hands.[2] Both Objectors testified
               that, in 1986, they had previously obtained zoning approval
               to demolish a garage in the rear of their property and
               replace it with a rear yard. Objectors indicated in their
               [z]oning [a]pplication that the rear yard would not be used
               as ‘off-street parking’ as their drawing did not include such
               a label. However, both Objectors testified that, for many
               years, they have used this rear yard as a parking lot in
               which to park their vehicle. Objectors’ use of the rear yard
               as a parking lot is clearly contrary to and not permitted by
               the zoning approval they received in 1986.
               Objectors cannot use the [Code] as both a sword and a
               shield. Objectors’ use of their rear yard as space for
               parking their vehicle in violation of the terms of their
               zoning approval while at the same time objecting to and
               appealing from the [ZBA]’s granting of a variance allowing
               accessory parking in the rear of Applicant’s Property is (1)
               bad faith conduct offending the moral sensibilities of the
               Judge, (2) related to the controversy at issue, (3) detrimental
               to the opposing party, and (4) affecting the balance of
               equities between the litigants.

Trial Ct. Op. at 9. Objectors appealed to this Court.3
               Objectors first contend that the trial court erred by dismissing their
appeal for lack of standing. Objectors assert that they have standing. In particular,
they claim that the Property’s close proximity to their property, and the record
testimony alleging visual impacts, trespass onto their property, and potential damage
to their building, constitutes sufficient evidence of aggrievement.
               The Pennsylvania Supreme Court has explained:

               Zoning in the [City] is governed by the [] Code . . . , as well
               as the [First Class City] Home Rule Act, [(Home Rule Act),

       2
          “The doctrine of unclean hands requires that one seeking equity act fairly and without
fraud or deceit as to the controversy in issue.” Terraciano v. Dep’t of Transp., Bureau of Driver
Licensing, 753 A.2d 233, 237-38 (Pa. 2000).
        3
          “Where no additional evidence is taken by the trial court, our scope and standard of review
is limited to determining whether the trial court and the zoning hearing board abused [their]
discretion or erred as a matter of law.” Laughman v. Zoning Hearing Bd., 964 A.2d 19, 22 n.3 (Pa.
Cmwlth. 2008).
                                                 4
               Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§
               13101-13157,] rather than the [Pennsylvania Municipalities
               Planning Code (]MPC[)4]. The [] Code, unlike the MPC,
               provides no definition of who is a party before the [ZBA]
               and does not limit who may appear and participate in a
               zoning hearing. . . . [A]s this Court decided in Spahn [v.
               Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009)],
               the Home Rule Act defines who may appeal from the
               [ZBA] to the trial court.
               Specifically, Section 17.1 of the Home Rule Act, 53 P.S. §
               13131.1, [added by Section 2 of the Act of November 30,
               2004, P.L. 1523,] provides standing in appeals from zoning
               matters in Philadelphia, as a city of the first class, to ‘any
               aggrieved person’ as follows:
                       In addition to any aggrieved person, the
                       governing body vested with legislative powers
                       under any charter adopted pursuant to this
                       [Home Rule A]ct shall have standing to appeal
                       any decision of [the ZBA] . . . . As used in this
                       section, the term ‘aggrieved person’ does not
                       include taxpayers of the [C]ity that are not
                       detrimentally harmed by the decision of the
                       [ZBA] . . . .
              53 P.S. § 13131.1.
Scott v. City of Phila., Zoning Bd. of Adjustment, 126 A.3d 938, 948 (Pa. 2015).
               The law is well-established:

               In order for an appellant to have standing to appeal a
               determination of the ZBA, they [sic] must demonstrate that
               they [sic] are [sic] an ‘aggrieved person.’ Spahn. For a
               party to be ‘aggrieved,’ the party must ‘show an interest
               that is substantial, direct, and immediate.’ Id. (citing
               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.’ Id. at 1151; see
               also William Penn, 346 A.2d at 280-81 (noting that ‘it is not
               sufficient for the person claiming to be ‘aggrieved’ to assert

      4
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
                                                 5
           the common interest of all citizens in procuring obedience
           to the law’). . . . An interest is direct where the party
           demonstrates ‘some causation of harm to his interest.’
           [Spahn, 977 A.2d at 1151]. In order for an interest to be
           considered ‘immediate, there must be a causal connection
           between the action complained of and the injury to the
           person challenging it.’ Id. Therefore, to meet the three
           requirements for an aggrieved party, the party must
           demonstrate that the challenged action personally harms his
           or her interest in a way that is greater than that of another
           citizen. Id. at 1151-52.

Armstead v. Zoning Bd. of Adjustment of City of Phila., 115 A.3d 390, 396 (Pa.
Cmwlth. 2015). The Court expounded:

           In Spahn, our Supreme Court consolidated three separate
           appeals from this Court involving, inter alia, standing in
           zoning cases and the constitutionality of Section 17.1 of the
           [Home Rule Act]. Spahn, 977 A.2d at 1136. In the first
           case, appellant Spahn appealed the ZBA’s granting of a
           dimensional variance of the [] Code’s open area
           requirements. Id. In examining whether Spahn had
           standing to pursue the appeal, this Court considered the fact
           that ‘[he] lived approximately one and a half blocks from
           the subject properties’ and that he ‘walked by the properties
           every day.’ Id. at 1138. This Court concluded that Spahn
           was not an aggrieved party because his ‘interest was no
           different from ‘the interest common to all citizens regarding
           obedience to the law.’’ Id. (quoting Spahn v. Zoning B[d.]
           of Adjustment, 922 A.2d 24, 31 (Pa. Cmwlth. 2007)). On
           appeal, the Supreme Court affirmed this Court’s decision,
           holding that because Spahn only made legal arguments
           against the variance and failed to establish he was
           ‘aggrieved,’ he lacked standing. Id. at 1152.
           In the third consolidated case in Spahn, the Society Created
           to Reduce Urban Blight (hereinafter ‘SCRUB’), several
           other organizations, and three individuals appealed the
           ZBA’s granting of a variance to Keystone Outdoor
           Advertising to erect a 2,400 square foot billboard. Id. at
           1139-40. Prior to reaching the Supreme Court, on appeal to
           this Court, the individuals argued they had standing because
           they lived in the general area of the billboard. Soc[’]y
           Created to Reduce Urban Blight (SCRUB) v. Zoning

                                        6
                Hearing B[d.] of Adjustment of City of Phila[.], 951 A.2d
                398, 403-04 (Pa. Cmwlth. 2008). We determined that
                ‘the distance between [a protesting individual’s]
                property interest and the property subject to the
                challenged zoning decision can be critical because
                proximity of the properties may be sufficient to establish
                a perceivable adverse impact.’ Id. at 404. Moreover, we
                concluded that ‘an adjoining property owner, who
                testifies in opposition to a zoning application before the
                [ZBA], has sufficient interest in the adjudication to have
                standing to appeal the [ZBA’s] decision to the trial
                court.’ Id. . . . On appeal, the Supreme Court reiterated
                our holding, concluding that because the individual
                [o]bjectors lived over a mile from the proposed billboard,
                they could not establish that they had standing as aggrieved
                parties. Spahn, 977 A.2d at 1152.

Armstead, 115 A.3d at 396-97 (emphasis added; footnotes omitted). Similarly, in
Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa.
Cmwlth. 2009), this Court explained that “[g]enerally, in order to establish standing
as an ‘aggrieved person,’ it must be shown that the person has a substantial, direct
and immediate interest in the claim sought to be litigated[;]” notwithstanding, “a
property owner need not establish pecuniary or financial loss if his property is
located in close proximity to the subject property because the zoning decision is
presumed to have an effect on the property owner’s property.”                           Id. at 22
(emphasis added).5 Thus, “[t]he owner of property that is adjacent to or abuts the


       5
           The Laughman Court explained:
                Obviously, property that is adjacent to or abuts the zoning area in
                question is in close proximity for standing purposes. We have also
                held that the owner of property that is within 400 to 600 feet of the
                challenged zoning district is also within close proximity and has
                standing. However, the owners of property one-half mile and one
                mile or more away from the challenged zoning area have been
                deemed to not be in close proximity in order to confer standing on
                those challenging a change to the zoning ordinance or map.
Laughman, 964 A.2d at 22-23 (citations omitted).

                                                 7
property at issue is ‘aggrieved’ and has standing to appeal a [zoning] board decision.”
Bradley v. Zoning Hearing Bd. of Borough of New Milford, 63 A.3d 488, 491 (Pa.
Cmwlth. 2013).
             In the instant matter, the trial court described Objectors’ property as “a
five-apartment building located at 520 North 19[th] Street which is directly across
from the rear of Applicant’s Property on the other side of Monterey Street.” Trial
Ct. Op. at 3 (emphasis added). As this Court described in Plaxton I, “Monterey
Street [is] a small street identified in Applicant’s site plan as approximately 6 feet, 8
inches wide[.]” Plaxton I, slip op. at 2. The Property’s close proximity to Objectors’
property, coupled with Objectors’ testimony, establishes Objectors’ standing as
aggrieved parties. Accordingly, the trial court erred by dismissing Objectors’ appeal
for lack of standing.
             Objectors also argue that the trial court erroneously applied the unclean
hands doctrine. This Court acknowledges that “[a] court may deprive a party of
equitable relief where, to the detriment of the other party, the party applying for such
relief is guilty of bad conduct relating to the matter at issue.” Terraciano v. Dep’t of
Transp., Bureau of Driver Licensing, 753 A.2d 233, 237 (Pa. 2000) (emphasis
added); see also N. Chester Cty. Sportsmen’s Club v. Muller, 174 A.3d 701, 707 n.3
(Pa. Cmwlth. 2017) (citation omitted) (“Under the doctrine of unclean hands, a court
may deny equitable relief where the person seeking such relief acted unfairly or with
fraud or deceit with respect to the matter at issue.”).
             The Pennsylvania Supreme Court has emphasized:

             The doctrine of unclean hands is
                    far more than a mere banalty. It is a self-
                    imposed ordinance that closes the doors of a
                    court of equity to one tainted with
                    inequitableness or bad faith relative to the
                    matter in which he seeks relief, however

                                            8
                   improper may have been the behavior of the
                   defendant. That doctrine is rooted in the
                   historical concept of court of equity as a
                   vehicle for affirmatively enforcing the
                   requirements of conscience and good faith. . . .
                   Thus while ‘equity does not demand that its
                   suitors shall have led blameless lives’ . . . as to
                   other matters, it does require that they shall
                   have acted fairly and without fraud or deceit as
                   to the controversy in issue. . . .
             Shapiro v. Shapiro, . . . 204 A.2d 266, 268 ([Pa.] 1964),
             quoting Precision Instrument Mfg. Co. v. Auto[.] Maint[.]
             Mach[.] Co., 324 U.S. 806, 814-15 . . . (1945).

Jacobs v. Halloran, 710 A.2d 1098, 1103 (Pa. 1998) (emphasis added).
             However, “[i]t is a cornerstone principle in equity that when the
legislature provides a statutory remedy, equity has no place. An action in equity
cannot be used to adjudicate zoning questions. Thus, when the applicable zoning
laws provide an adequate remedy, the law must be followed.” Borough of Trappe v.
Longaker, 547 A.2d 1311, 1313 (Pa. Cmwlth. 1988) (footnote and citations omitted).
Here, Objectors filed a statutory appeal. Because the instant appeal is not an equity
action, and the legislature established a statutory remedy, the equitable unclean hands
doctrine cannot be used to bar Objectors from challenging the variances.
Accordingly, the trial court erred by dismissing Objectors’ appeal on that basis.
             Having concluded that Objectors had standing to appeal from the ZBA’s
decision, this Court is constrained to remand the matter to the trial court to address
the merits. See Soc’y Created to Reduce Urban Blight (SCRUB) v. Zoning Bd. of
Adjustment, 729 A.2d 117, 122 (Pa. Cmwlth. 1999) (having determined objectors
have standing, “this case is remanded to the trial court for a determination of the
merits of [objectors’] appeal”); see also Walters v. Zoning Hearing Bd. of the City of
Easton, 125 A.3d 479, 485 (Pa. Cmwlth. 2015) (having “conclude[d] that [the
objector] possesses standing to appeal,” the case is remanded to the trial court);

                                           9
Borough of Brookhaven v. Zoning Hearing Bd. of the Borough of Brookhaven, 427
A.2d 1281, 1285 (Pa. Cmwlth. 1981) (“We will reverse the decision on the motion to
quash and remand the case for consideration of the merits of the variance grant.”).
             For all of the above reasons, the trial court’s order is reversed and the
matter is remanded to the trial court.



                                         ___________________________
                                         ANNE E. COVEY, Judge




                                           10
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elke Plaxton                                   :
                                               :
                     v.                        :
                                               :
Zoning Board of Adjustment and                 :
1903 Spring Garden Associates, LP              :
                                               :   No. 438 C.D. 2018
Appeal of: Arthur and Elke Plaxton             :


                                         ORDER

               AND NOW, this 9th day of July, 2019, the Philadelphia County
Common Pleas Court’s (trial court) February 22, 2018 order is reversed and the
matter is remanded to the trial court for a decision on the merits.
               Jurisdiction is relinquished.



                                          ___________________________
                                          ANNE E. COVEY, Judge
