Gargiolo v. City of Philadelphia Zoning Board of Adjustment

32 Pa. D. & C.5th 44, 2013 Phila. Ct. Com. Pl. LEXIS 290
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 8, 2013
DocketNo. 01929
StatusPublished

This text of 32 Pa. D. & C.5th 44 (Gargiolo v. City of Philadelphia Zoning Board of Adjustment) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gargiolo v. City of Philadelphia Zoning Board of Adjustment, 32 Pa. D. & C.5th 44, 2013 Phila. Ct. Com. Pl. LEXIS 290 (Pa. Super. Ct. 2013).

Opinion

TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court on the grant of Intervenors H.A. Steen Industries, Inc.’s, CBS Outdoor Group’s and Clear Channel Outdoor’s Inc.’s (hereinafter referred as “Intervenors” and alternatively as “sign owners”) motion to quash Scenic Philadelphia’s zoning agency appeal. Mot. to quash (02/25/2013). The court granted Intervenors’ joint motion to Quash Scenic Philadelphia’s zoning agency appeal due to Scenic Philadelphia’s (hereinafter referred to as “Scenic”) lack [46]*46of standing to bring the instant appeal in the Philadelphia Court of Common Pleas. Scenic timely appealed the Court’s ruling to the Commonwealth Court on May 17, 2013. Appeal to Commonwealth Court (05/17/2013). The court ordered Scenic to file of record a concise statement of matters complained of pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (05/21/2013). The court will not reproduce the 1925(b) statement as per its usual custom. A discussion ensues:

The facts and record in this matter are extensive. Sometime in 2007, the Pennsylvania Department of Transportation (“PennDOT”) unveiled its long-term plan to widen and rebuild United States Interstate 95 (hereinafter “1-95”), which runs through sections of Philadelphia. Mot. to quash (02/25/2013). PennDOT’s project would require the taking of numerous outdoor advertising signs dotted alongside 1-95. Id. In an effort to prevent a taking and the attendant economic impact of a taking on the Commonwealth and the City of Philadelphia, the City of Philadelphia drafted an ordinance to allow the owners of the advertising signs to keep their property by relocating the advertising signs beyond the right of way of the PennDOT 1-95 expansion project. Id. The ordinance draft was approved by the sign owners, the mayor of the City of Philadelphia, City Council of Philadelphia, the City of Philadelphia Law Department and PennDot for compliance with the Philadelphia Code and the Federal Highway Beautification Act. Id. The ordinance established a new process to apply for and obtain a permit to relocate signs affected by the expansion project. Mot. to quash (02/25/2013); Certified record (01/23/2013)(Philadelphia, [47]*47PA, Philadelphia Code §14-1642 (“1-95 Condemnation Corridor”), Bill No. 100678, introduced October 21, 2010). In June of 2011, the ordinance was approved by the City Council of Philadelphia and signed into law by the Mayor of Philadelphia. Id.

By the fall of 2011, the sign owners were notified that the advertising signs needed to be relocated out of the path of the expansion project by January 2012. Id. The instant matter concerns three (3) outdoor advertising signs. The three (3) advertising signs are located on the east side of 1-95, on the Conrail yard on Richmond Street in Philadelphia. Mot. to quash (02/25/2013). The sign owners and Conrail submitted permit applications to the Philadelphia Department of Licenses & Inspections (“L&I”) for permission to relocate the signs. Id. On April 12, 2012, L&I approved the permit applications and issued zoning permits for the demolition and relocation of the three (3) outdoor advertising signs. Certified record (01/07/2013)(“Findings of Fact”). L&I also issued permits for the use of the outdoor signs for advertising. Certified record (01/07/2013)(“Findings of Fact”).

On May 9, 2012, Stephanie Kindt, Esq., General Counsel of Scenic, formally Society Created to Reduce Urban Blight (“SCRUB”), filed an appeal of the issuance of the zoning permits to the Philadelphia Zoning Board of Adjustment (“ZBA”) on behalf of Scenic as an organization and “its members residing in the Olde Richmond and New Kensington CDC neighborhoods.” Certified record (01/07/2013)(“Findings of Fact”). The sign owners requested permission to intervene in the ZBA [48]*48hearings; this request was granted and a public hearing was held before the ZBA on June 13, 2012.1 Id. The ZBA ultimately upheld the issuance of the zoning permits. Id.

In regards to the ZBA hearing, the court notes the following facts: First, the June 13, 2012 hearing was restricted to the issue of whether L & I issued the permits in accordance with the subject ordinance, which is codified at Philadelphia Code §14-1645. Certified record (01/07/2013)(“Findings of Fact”). Second, the ZBAheard a consolidated appeal on three permits related to three signs; however, the ZBA issued three separate rulings ultimately upholding the issuance of the permits. Id. Third, Scenic’s standing to bring an appeal before the ZBA was challenged by standing objection of both the Intervenors and the City of Philadelphia. Id. The ZBA left the issue of Scenic’s standing “unresolved;” however, the record is clear that Scenic was prevented from putting forth evidence and cross-examining witnesses at the June 2012 ZBA hearing. Id. (“Findings of Fact”)(“Notes of Testimony”). Instead, Scenic was limited to giving testimony in the form of statements. Id.

On July 13, 2012, Scenic commenced the instant appeal in the Philadelphia County Court of Common Pleas. Commencement by appeal (07/13/2012). The court notes that Scenic filed the instant appeal on behalf of [49]*49Scenic the organization and five (5) individuals. Id. The Intervenors intervened as of right in this matter by praecipe. Praecipe to intervene (07/24/2012); Praecipe to intervene (08/10/2012); Praecipe to intervene (08/10/2012). After the scheduling order in this matter was modified to allow additional time to file briefs, this matter was listed for oral arguments. Order entered by J. Tucker (02/01/2013); listed for oral arguments (02/01/2013). On February 25, 2013, Intervenors filed the instant motion to quash Scenic’s appeal. Mot. to quash (02/25/2013). Scenic filed its answer to the motion to quash and the court issued a rule to show cause why Intervenor’s requested relief should not be granted. Ans. (Mot./pet. filed)(03/l 9/2013); rule issued (03/22/2013). The rule was returnable on April 17, 2013. N.T. (04/17/2013). The court did not take additional evidence at the rule hearing. At the conclusion of the rule, the court granted Intervenors’ motion to quash and dismissed Scenic’s appeal with prejudice due to Scenic’s lack of standing to bring the appeal. Order entered — final disp. (04/18/2013).

II. LEGAL ANALYSIS

The court properly granted Intervenors’ motion to dismiss Scenic’s appeal due to Scenic’s lack of standing.

1. Governing Principals — Standing

The issue in this matter is rather straightforward: does Scenic as an organization have standing to appeal the ZBA’s June 2012 decision to uphold the issuance of three zoning permits by L&I? To be clear, the court quashed the instant appeal due to Scenic’s lack of standing [50]*50to bring the appeal; other so called charges of error against this court unrelated to the issue of standing are irrelevant. 1925(b) statement (05/21/2013)(stating that the court erred in granting motion to quash based on the filing of an untimely brief). The court does not view the underlying legal principals here to be complex. Where complexity arises, it does so due to the way Scenic has sought to involve itself in this matter.

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Cite This Page — Counsel Stack

Bluebook (online)
32 Pa. D. & C.5th 44, 2013 Phila. Ct. Com. Pl. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gargiolo-v-city-of-philadelphia-zoning-board-of-adjustment-pactcomplphilad-2013.