A developer’s first opportunity to challenge the standing of an objector before Philadelphia’s zoning board was in the objector’s appeal to the trial court, not at the board hearing, the Pennsylvania Supreme Court ruled in Scott v. City of Phila., Zoning Bd. of Adjustment, __ A.3d __ (No. 57 EAP 2014, filed Oct. 29, 2015). The developer in this case, FT Holdings, L.P., applied for a zoning/use permit in connection with a condominium complex it is developing in Philadelphia. The permit was denied and FT appealed to the Zoning Board of Adjustment (Board) and requested variances. Counsel for objector John Scott appeared on his behalf and presented Scott’s concerns. FT did not object to counsel’s participation. The Board granted the variances and Scott appealed to the trial court. FT intervened and moved to quash, arguing that Scott lacked standing because he was not aggrieved by the Board’s decision. Scott countered that FT had waived the standing issue by not raising it before the Board. The trial court granted FT’s motion to quash and dismissed Scott’s appeal.
On Scott’s appeal, the Commonwealth Court reversed. Scott v. City of Phila., Zoning Bd. of Adjustment, 88 A.3d 1071(Pa. Cmwlth. 2014). The Commonwealth Court did not reach the substantive issue of Scott’s standing. Instead, the Court agreed with Scott that FT had waived its objection to Scott’s standing by not raising it before the Board. In doing so the Court relied on a line of cases originating outside of Philadelphia that were decided under the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. §§10101 – 11202.
On further appeal by permission, the Supreme Court reversed in a unanimous opinion authored by Justice Baer. The Court expressly disapproved of the Commonwealth Court’s reliance on MPC cases, highlighting the differences between the MPC and Philadelphia’s Zoning Code, which is further governed by the Home Rule Act. In short, the MPC limits who may appear before a zoning hearing board, whereas anyone is free to attend and address the Board at its hearings. Given this legislative and precedential framework, the Court explained that it would be futile to require an applicant to challenge the standing of everyone who participates before the Board. Moreover, the Court noted, the ability to appear and participate before the Board is distinct from standing to appeal the Board’s decision to the trial court. Thus, the time to challenge an objector’s standing is on appeal to the trial court, where the objector, if challenged, must demonstrate that he or she is an “aggrieved person” under the Home Rule Act. In this case, the first time FT could challenge Scott’s standing to appeal was in the trial court. Accordingly the Court held that FT’s challenge was timely and remanded for resolution of Scott’s appeal from the trial court’s determination that he was not aggrieved.