IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scenic Philadelphia and Tacony : Academy Charter School a/k/a : No. 283 C.D. 2015 Frankford Valley Foundation for : Submitted: March 4, 2016 Literacy and Tacony Civic Association : and Wissonoming Civic Association, :

: Appellants :

:

v. :

: Zoning Board of Adjustment of the : City of Philadelphia and City of : Philadelphia and Richard L. Cantor :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORA BLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED: June 3, 2016

Scenic Philadelphia (Scenic)

, Tacony Academy Charter School a/k/a

Frankford Valley Foundation for Literacy (School) , Tacony Civic Association

(Tacony) , and Wisso noming Civic Association (Wisso noming) (together, Appellants)

appeal from the February 6, 2015, order of the Court of Common Pleas of

Philadelphia County (trial court) that denied Appellants ’ appeal from a decision of

the Zoning Board of Adjustment (ZBA) of the City of Philadelphia (City) and upheld

the ZBA’s issuance of a permit to Clear Channel Outdoor, Inc. (CCO) for a billboard

format change

. We affirm

.2

CCO is the owner of a rooftop billboard located at 6241 Tacony Street,

along Interstate 95, in n ortheast Philadelphia. The billboard has been at this location

for over 20 years and is a lawful use. O n February 20, 201 3 , CCO applied for a

zoning and use registration permit to convert the south face of the billboard from a

static to a digital format while reducing its size

, but without changing the format or

size of the north face of the billboard

.

On July 25, 2013, t he Philadelphia Department o f Licenses and

Inspections ( L&I ) issued CCO a permit for a by

- right format change. In making its

determination, L&I relied upon a 2007 L&I memo randum written by former Deputy

Commissioner Eileen Evans (Evans Memo) , which conclud ed that digital conversions

were permitted as of right under the existing version of the Philadelphia Zoning and

Planning Code ( Zoning Code).

On August 22, 2013, Scenic, Tacony

, and Wisso noming appealed the

issuance of the permit to the ZBA, challenging L&I’s approval of the for mat change

because the billboard “did not meet spacing requirements prohibiting outdoor

advertising signs (1) within 500 feet of another non

- accessory sign, (2) within 660

feet of an entrance to the Tacony

- Palmyra Bridge, or (3) within 660 feet of any

prop erty zoned for ‘Active Park and Open Space.’” 1 (ZBA’s Findings of Fact, No.

4.)

The ZBA held a hearing on December 18, 2013

, at which Charles

Sweedler , Esquire

, stated that he represented the “applicants, slash, appellant, slash,

1 School did not appeal L&I’s issuance of the permit to the ZBA.3

protestants, T acony . . . , Wisso noming . . . and School.” (N.T., 12/18/13, at 4.) After

the hearing, the ZBA found that School did not appeal the issuance of the permit and

that the remaining Appellants failed to identify any individual member that would be

directly affec ted by the format change. Thus, the ZBA determined that Appellants

lack ed standing to challenge the permit.

The ZBA then reviewed the Zoning Code and L&I’s rationale for issuing

the permit . The ZBA found that the billboard was authorized and the perm it should

be issued as of right. (ZBA ’s Findings of Fact

, Nos. 9, 12.) The ZBA concluded that

L&I properly relied upon department policy as it then existed, i.e.

, the Evans Memo,

in issu ing CCO the permit

. (ZBA ’s C onclusions of Law, Nos. 7

- 8.) The ZBA further

concluded that L&I’s decision c ould not be reexamined based upon a subsequent

policy change. ( Id. , No. 9.) The ZBA determined that the permit was properly issued

and that Appellants failed to establish standing to challenge the permit. ( Id. , Nos . 10

- 11.)

Appellants appealed to the trial court

. After argument

, t he trial court

determined that: (1) School, although it may have been directly affected by the

billboard , only offered factual testimony and did not express an objection to the

permit; (2) Wisso noming and Tacony failed to demonstrate, with specific facts, that

they were aggrieved by the billboard conversion; and (3) Scenic failed to show that

any of its members live in an area that is directly affected by the billboard or pr ove
the necessary requirements for standing under the private attorney general theory

. (Trial Ct. Op. at 9

- 11.)4

The trial court further determined that the subsequent policy change did

not apply to the p ermit and that the ZBA did not err in approving the format change

pursuant to the Evans Memo. On February 6 , 2015, the trial court denied Appellants’

appeal and upheld the ZBA’s decision, finding that Appellants d id not have standing

and that L&I properly issued the permit. Appellants appealed to this court. 2

Initially, Appellants contend that the trial court erred in finding that

Appellants did not have standing. A zoning decision in Philadelphia may be appealed

by the governing body and “any aggrieved person.” Spahn v. Zoning Board of

Adjustment, the City of Philadelphia , 977 A.2d 1132, 1149 (Pa. 2009). Here,

Appellants are not a governing body ; thus, we must determine whether Appellants are
“aggrieved.” The Pennsylvania Supreme Court has determined that a person is

aggrieved pursuant to section 17.1 of the First Class City Home Rule Act (Home

Rule Act) , 53 P.S. §13131.1, 3 when that person “‘has a substantial, direct and

immediate interest in the claim sought to be litigated.’” Spahn , 977 A.2d at 1149

(citation omitted).

In order to be substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of the proceedings. In order to be direct, the party must show some causation of harm to

2 Where, as here, the trial court takes no additional evidence , our review is limited to determining whether the ZBA abused its discretion or committed an error of law. Valley View Civic Association v. Zoning Board of Adjustment , 462 A.2d 637, 639 (Pa. 1983). An abuse of discretion
will be found only if the ZBA’s findings are not supported by substantial evidence, which is such relevant evidence that a reasonable person would “accept as adequate to support a conclusion.” Id.
at 640.

3 Act of April 21, 1949, P.L. 65, §17.1 added by sect ion 2 of the Act of November 30, 2004, P.L. 1523, No. 193.5

his interest. In order to be immediate, there must be a causal connection between the action complained of and the injury to the person challenging it.

Id

. at 1151 ( c itations omitted).

Appellants maintain that they have standing based on School’s proximity

to the bil lboard. Here, the trial court determined that School did not appeal from the

issuance of the p ermit, nor did it submit an objection while appearing before the

ZBA. 4 A party does not have standing “because [it was] present and participated in

the hearing [ ]

, ” it must show that it is aggrieved. Id. at 1140

, 11 42 . Further, a party

that only makes legal arguments against a permit and fails to establish that it was

“aggrieved” lacks standing. Armstead v. Zoning Board of Adjustment of the City of

Philadelphia , 115 A.3d 390, 39 6

- 9 7 (Pa. Cmwlth. 2015) ( en banc )

.

Sam Stanton, Director of Communication and Community Relations for

School

, testified as a fact witness. Stanton stated that School was not yet built, would

be three stories high

, and would have windows that face the south face of the

billboard . Stanton testified that School purchased its property in October and the

groundbreaking occurred four day s before the ZBA hearing

. Stanton did not state

4 Scenic asserts that pursuant to Aquaro v. Zoning Board of Adjustment of the City of Philadelphia , 673 A.2d 1055 (Pa. Cmwlth. 1996), School has standing to appeal because School was present at the hearing, had an attorney, and presented testimony

. However, Aquaro is distinguishable. In Aquaro , Aquaro was determined to be “aggrieved” because his property abut ted the property at issue. Id. at 1059. Further, this court added that “Aquaro was clear ly a party in the proceeding before the ZBA for he was represented by counsel, who cross

- examined the witnesses, and he testified as an objector. ” Id. Here, the ZBA determined that School did not appeal from the grant of the permit, did not object to the permit, and did not testify as an objector before the ZBA; School’s witness merely testified as a fact witness.6

any objection to the p ermit on the record. Stanton merely testified regarding the

placement of School’s building on its property. ( See N.T. , 12/18/13, at 52

- 67.)

Further, t he p ermit was issued and the appeal of the p ermit was filed

prior to School acquiring its property. Because School did not challenge the p ermit

or state any objection at the hearing

, the ZBA and the trial court did not err in

determining that School did not have standing.

Tacony and Wissonoming maintain that they have standing based on the

geographic boundaries of their as sociations. 5 However, t he trial court determined that

Tacony and Wissonoming did not have standing because they failed to demonstrate

that individual members of the associations would be aggrieved by the format

change. 6 Tacony and Wissonoming merely stat ed that their boards opposed the

conversion but did not set forth specific facts demonstrating that any of their

individual members would be directly affected by the format change. ( See N.T.

, 12/18/13, at 70

- 77.) Tacony and Wissonoming failed to express an interest that was

5 Marky Pluta testified on behalf of Wissonoming. Pluta stated that the billboard is within Wissonoming’s geographic boundary. Pluta attend ed the three

- member board meeting, which was not a public meeting, where the board agreed to oppose the format change. (N.T. , 12/18/13, at 70

- 74.)

Sam Schepis testified on behalf of Tacony. Schepis testified that the billboard is across the
street from Tacony’s geographic boundary but would be visible from its boundary. Tacony held an open board meeting

, which 12 people attended. Tacony decided to oppose the billboard. (N.T.

, 12/18/13, at 74

- 85.)

6 The associations rely heavily on the impact the billboard will have on School. However, when the associations appealed the p ermit, School had not even purchased the property on which its building i s to be built.7

“‘different from the abstract interest’ of all other citizens.” Armstead , 115 A.3d at

398 (citation omitted). Because Tacony and Wissonoming did not aver specific facts

showing that they were aggrieved by the format change, the ZBA and the trial court

did not err in determining that Tacony and Wissonoming did not have standing.

Finally, Scenic contends that it has standing because its member s live in

the area, it has a long history of opposing illegal billboard signs , some of the other

Appellants are members of Scenic, and it qualifies under the private attorney general

theory. 7 , 8 Scenic argues that pursuant to Pittsburgh Trust for Cultural Resources v.

Zoning Board of Adjustment of the City of Pittsburgh , 604 A.2d 298 (Pa. Cmwlth.

1992), and Society Hill Civic Association v. Philadelphia Board of License &

Inspection Review , 905 A.2d 579 (Pa. Cmwlth. 2006), it has standing as a community

or ganization whose mission promotes quality in commercial development in the area.

7 We note that Mary Tracey, executive dir ector of Scenic, testified on its behalf. Tracey was called to authenticate a photograph that she took of the billboard from School’s property. Tracey testified as to the proposed location of School and that the billboard would distract School’s
prospect ive students. Tracey admitted that the photograph she submitted into evidence was taken using her camera ’s zoom feature

, t hus not revealing that School was across eight lanes of I

- 95, four
sets of railroad tracks, and two lanes of Tacony Street. (N.T. , 1 2/18/13, at 40

- 51.)

8 In asserting standing under a p rivate a ttorney g eneral theory, Scenic references Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia , 729 A.2d 117 (Pa. Cmwlth. 1999) ; however, this case was superseded by statute when the Home Rule Act was amended in 2004, narrowing the test for standing in a zoning appeal. See Spahn . Scenic also references Sprague v. Casey , 550 A.2d 184 (Pa. 1988), and Rizzo v. City of Philadelphia , 5 82 A.2d 1 128 (Pa. Cmwlth. 1990); however, neither of these decisions was a zoning
decision , which our General Assembly has clearly precluded taxpayers from appealing unless they are aggrieved. See Armstead , 115 A.3d at 400.8

In Armstead , this court considered both Pittsburgh Trust and Society Hill

and determined that Scenic did not have “standing simply by virtue of its

organizational p urpose. As laudable as Scenic[’ s]

. . . mission may be, this interest is

no different than ‘the abstract interest that all citizens have’ in ensuring obedience to

zoning laws.” Armstead

, 115 A.3d at 39 8

- 400 ; s ee also Poulin v. Philadelphia

Zoning Board of Adjustment (Pa. Cmwlth., No. 358 C.D. 2014, filed May 14, 2015)

( en banc ) (determining that Scenic did not establish standing through its

organizational purpose or its members). 9 Armstead , however, further determined that

Scenic could establish standing based on its members’ own standing. 115 A.3d at

400. Thus, Scenic argues here that it has standing because Wissonoming and Tacony

are members of Scenic. Unfortunately, t his argument also fails because both

Wissonoming and Ta con y failed to establish standing in their own right

. See i d.

Further, Scenic argue s here, as it di d in Armstead

, that it ha s standing

under a private attorney general theory. 115 A.3d at 400

- 01. However, in Armstead

we determined that our General Assembly precluded the possibility of taxpayer

appeals from zoning decisions in Philadelphia. Id. at 400. “Because [s]ection 17.1 of

the Home Rule Act deliberately forecloses taxpayer appeals from ZBA decision s , Objectors are unable to establish standing under a private attorney general theory.”

Id. at 401. T hus, as in Armstead

, Scenic has failed to establish standing under any of

its arguments.

9 An unreported decision of this court may be cited for its persuasive value, but not as binding precedent. Section 414 (a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).9

The ZBA correctly determined that Scenic , Wisso noming, and Tacony

could n ot establish standing merely because of their organizational purpose

. See

Pittsburgh Trust , 604 A.2d at 304 ( holding that an association may have standing as a

“ representative of its members who are suffering immediate or imminent injury

because of the di sputed action” ). Further, none allege d a significant investment in the

area near the billboard, n or did they present any evidence demonstrating that their

offices or member s ’ homes are located near the billboard

. T he ZBA correctly

determined that School failed to state any object ion to the billboard’s format change.

Thus, th e trial court did not err in affirming the ZBA’s determination that Appellants

lacked standing.

Finally, even if Appellants had standing, we disagree that CCO required

a variance for the billboard format change. 10

There is no dispute that CCO’s billboard is a lawful use and that CCO

received a zoning and use permit for the sign in 1990. (ZBA’s Findings of Fact, Nos.

9, 16; 1990 Permit at 1.) The Evans Memo states that a face or format change is not a

change in use and “does not expand upon or differ from what the ZBA has already

authorized.” (Evans Memo at 2.) Pursuant to the Evans Memo, it was not necessary

for CCO to seek a dimensional variance. See Callowhill Neighborhoo d Association

v. City of Philadelphia Zoning Board of Adjustment , 118 A.3d 1214 , 1226 (Pa.

Cmwlth. 2015) ( en banc ) (stating that L&I properly relied on the Evans Memo in i ts

decision to issue the permit).

10 Appellants also contend that CCO failed to prove a hardship warranting a variance

.10

Because L&I properl y relied upon the Evans Me mo in issuing the permit

for the billboard’s format change to digital

, CCO was not required to seek a variance.

The ZBA did not err in issuing CCO the p ermit.

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scenic Philadelphia and Tacony : Academy Charter School a/k/a : No. 283 C.D. 2015 Frankford Valley Foundation for : Literacy and Tacony Civic Association : and Wissonoming Civic Association, :

: Appellants :

:

v. :

: Zoning Board of Adjustment of the : City of Philadelphia and City of : Philadelphia and Richard L. Cantor :

O R D E R

AND NOW, this 3 rd day of June , 201 6

, we hereby affirm the February 6,

2015, order of the Court of Common Pleas of Philadelphia County.

_______________________ ____________ ROCHELLE S. FRIEDMAN, Senior Judge