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 , 201 9

BEFOR E: 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) appea l

, 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 Garde n Associates, LP (Applicant) a use variance to

park four vehicles in the rear yard of its property located at 1903 Spring Garden

Street, Phil a delphia (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 proper ty was permitted as of right

, and grant ed Applicant a2

variance from the Code’s landscaping requirement due to Applicant’s inability to use

the P roperty. This Court remanded the matter for the ZBA to determine whether

Applicant is entitled to a variance f or 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 w itnesses

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 yard s 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 mainta in) 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 caus ed 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, Ob

jectors appeal ed to the trial court. On February 22, 2018, the

trial court dismissed Objectors’ appeal because they lacked standing and were3

ineligible for equitable relief based on the doctrine of unclean hands. 1 In dismissing

the appeal, the trial cour t 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 varian ces 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 n ot 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 ’ prope rty 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 dec ision
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 question s pertaining to whether the ZBA properly granted the variances

. Notwithstanding, the trial court affirmed the ZBA’s decision granting the variances.4 the doctrine of un clean 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 yar d 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 ya rd 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 t he terms of their zoning approval while at the same time objecting to and appealing from the [ZBA] ’ s granting of a variance allowing

accessory p arking in the rear of Applicant’ s Property is (1) bad faith conduct offending the moral sensibilities of the
Jud ge, (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 dismiss ing their

appeal for lack of standing. Objectors assert that the y 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, a nd 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 Ac t),

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 Hearin g Bd. , 964 A.2d 19, 22 n.3 (Pa. Cmwlth. 2008)

.5 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 m ay appear and participate in a zoning hearing. . . . [A]s this Court decided in Spahn [ v. Zoning B oar

d 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 aggr ieved 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
includ e 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. (ci ting 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 t he 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

- 11202.6 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 injur y 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 affirme d 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 Bl ight (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 appea l 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. Zoning7 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 adver se 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 tri al

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 B oard of Newberry T ownship , 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 stan ding 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)

.8

property at issue is ‘aggri eved’ 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, t he trial court described Objectors’ property as “a

five

- apartment buildin g 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 ide ntified in Applicant ’ s site plan as approximately 6 feet, 8

inches wide [.]” Plaxton I

, s lip op. at 2. T he Property’s close proximity to Objectors’

property

, coupled with Objectors’ testimony

, establishe s Objectors ’ standing as

aggrieved parties . Accordi ngly , t he trial court erred by dismiss ing Objectors’ appeal

for lack of standing

.

Objectors also argue that the trial court erroneously applied the un clean

hands doctrine. This Court acknowledges that “[a] court may deprive a party of

equitable relief wh ere, 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., Burea u of Driver Licensing , 753 A.2d 233, 237 ( Pa. 2000) ( emphasis

added ) ; s ee 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 r espect to the matter at issue. ” )

.

T he 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 inequitablenes s or bad faith relative to the matter in which he seeks relief, however9 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 l aw must be followed. ” Borough of Trappe v.

Longaker , 547 A.2d 1311, 1313 ( Pa. Cmwlth. 1988) ( footnote and citation s omitted).

Here , Objectors filed a statutory appeal . Because t he instant appeal is not an equity

action

, and the legislature established a statutory remedy, the equitable unclean hands

doctrine can not be used to bar Objectors from challeng ing the variances.

Accordingly

, the trial court erred by dismiss ing Objectors’ appeal on that basis

.

Having concluded that Objectors had standing to appe al 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 obje ctors

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

obj ector] possesses standing to appeal ,” the case is remanded to the trial court) ;10

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 reman d 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, JudgeIN TH E 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 :

O R D E R

AND NOW, this 9 th day of July , 201 9

, 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.

___________________________ AN NE E. COVEY, Judge