Should A Variance Granted By The ZBA Be Extinguished Due To Lack Of Standing?

Last month, in Liberties Lofts v. Zoning Board of Adjustment, 2018 Pa. Commw. LEXIS 106 (April 2), the Commonwealth Court addressed whether a variance granted by the city of Philadelphia’s Zoning Board of Adjustment (ZBA) should be extinguished due to the alleged lack of standing of the corporate entity which sought the proposed property development.

Property Acquisition and Proposed Development

In Liberties Lofts, RLDL Spruce LLC, a corporate entity owned and managed by a sole member, entered into a written agreement of sale with the property owners to purchase a one-story building situated at the neighborhood known as Northern Liberties in Philadelphia, the opinion said.

The agreement of sale allowed for an assignment of RLDL’s rights and obligations under the terms and conditions of the agreement of sale, the opinion said.

Over the years, a number of single-family and multi-family uses had been built within the vicinity of the property, the opinion said.

In fact, the property immediately adjacent to the one in Liberties Lofts was developed into a 61-unit multi-family building based upon variances received, the opinion said.

ZBA Hearing and Standing Issue

In April 2016, Hightop Brown, a corporate entity owned and managed by the same individual who owned RLDL, applied for a zoning permit with L&I for demolition and construction of a five-story, 26-unit, multi-family residence, the opinion said.

Because the proposed use was prohibited in the ICMX zoning district, L&I refused the permit and Hightop appealed to the ZBA, the opinion said.

At hearing, Hightop presented the current deed and RLDL’s agreement of sale but offered no evidence of any assignment of rights to Hightop, the opinion said. Liberties Lofts did not challenge standing at that time.

The ZBA granted the variance, and Liberties Lofts appealed to the Court of Common Pleas.

Trial Court Ruling on Waiver

At oral argument, Judge Anders asked Hightop for proof of assignment. Hightop’s counsel produced a purported assignment not in the record and noted shared ownership. Anders held Liberties Lofts waived any standing challenge by not raising it before the ZBA.

Liberties Lofts then appealed Anders’ ruling to the Commonwealth Court.

Commonwealth Court’s Waiver Analysis

Judge Simpson’s opinion affirmed waiver. The court held standing is non-jurisdictional and may not be raised sua sponte. By failing to object before the ZBA, Liberties Lofts forfeited the issue.

The court rejected reliance on Scott v. Zoning Board of Adjustment, distinguishing that case’s focus on objector standing on appeal, not applicant standing before the ZBA.

Assignment Documentation Not Required at Hearing

In a footnote, the court added that even without waiver, Hightop’s testimony that it held equitable title sufficed. Under Philadelphia Zoning Code §14-303(1)(c)(1) and ZBA Rule 5.2.3.1, equitable owners need not submit assignment documents into evidence at the ZBA hearing.

Reprinted with permission from the May 9, 2018 edition of The Legal Intelligencer © 2018 ALM Media Properties, LLC. All rights reserved. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

Alan Nochumson