In a recent zoning case, captioned as In re: Appeal of City of Philadelphia, the Pennsylvania Commonwealth Court reversed a decision of the court of common pleas to quash a land use appeal filed by the City from the decision of zoning board of adjustment (“ZBA”) to grant use and dimensional variances for a proposed seven-story building with residential and retail uses.

At the ZBA hearing, a representative from the City Planning Commission informed the ZBA that (a) the Commission’s Civic Design Review Committee had not yet conducted its “civic design review” of the project, and (b) the proposed project was contrary to the Comprehensive Plan. Notwithstanding the Commission’s opposition, the Applicant elected to proceed with the hearing and the ZBA unanimously granted the requested variance relief. The City appealed the decision to the court of common pleas and the Applicant subsequently filed a motion to quash the City’s appeal for lack of standing; averring that no one appeared on behalf of the City at the ZBA hearing. The trial court granted the Applicant’s motion to quash the appeal, with prejudice, and determined that the City lacked standing to bring the appeal and that it waived any right to bring an appeal by failing to appear at the hearing. The City then appealed the decision to the Commonwealth Court, who noted that the City “can be aggrieved independently by virtue of the infringement on the terms of its ordinance and its comprehensive plan”. Accordingly, the Commonwealth Court reversed the trial court’s order and remanded the matter to the trial court for a decision on the merits of the City’s appeal. In summary, the Commission was able to defend the Applicant’s motion to quash and now, two years later, will “get its day in court” as to whether or not the evidence submitted into the record at the ZBA hearing constituted “hardship” to justify the grant of the use and dimensional variances.

Interestingly, the applicant appeared before the Commission, after the ZBA hearing, to complete the “civic design review” process. In this case, the applicant would have been much better off continuing the hearing before the ZBA, after the Commission gave its position at the ZBA hearing, and working with the Commission to finalize the civic design review process and modify the project in an attempt to better conform with the Comprehensive Plan; all prior to proceeding with the ZBA hearing.

For further information on this case, or the ability to obtain zoning and land use approvals in the City of Philadelphia, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.