Law on appeals faces a challenge

Lawyers for the city, community groups, developers and billboard companies squared off in Commonwealth Court yesterday over whether any Philadelphia taxpayer may appeal a decision of the city zoning board.

Sam Stretton, the lawyer representing community groups, called it a "very, very important issue that will affect the rights of community groups to stand up for their neighborhoods."

At issue is Act 193, passed with no prior hearings on the last day of the General Assembly's 2004 session. It declares that only "aggrieved persons" who are "detrimentally harmed" by a decision of Philadelphia's zoning board have standing in the courts to appeal.

The act appeared to cancel a longstanding provision of Philadelphia's zoning code that allowed "any person aggrieved, or any taxpayer" to challenge the Zoning Board of Adjustment in court.

Ultimately, the court will decide whether the legislature overreached.

Stretton represented the Society Created to Reduce Urban Blight (SCRUB), which has campaigned for 17 years against improperly placed billboards.

Last year, a Common Pleas Court judge ruled that SCRUB did not have standing under Act 193 to seek reversal of the zoning board's grant of a variance to erect a billboard at 3800 City Avenue.

The judges also heard another appeal involving the right of a Philadelphia resident to challenge a variance the zoning board granted a developer to build a two-family house on a smaller-than-standard lot in the 1600 block of Bainbridge Street.

The plaintiff in that case, Gary Spahn, lived a block and a half from the site. Another Common Pleas Court judge ruled he lived too far from the site to be "detrimentally harmed" by the variance.

"We're here to decide what the Pennsylvania General Assembly did," attorney Joe Beller, who represented the builder in the Spahn case, told the judges.

But even the two lawyers on the same side of the argument disagreed as to whether the General Assembly could override local rule on matters such as zoning.

Richard Feder, chief deputy city solicitor for appeals, began by allowing that the General Assembly had legal authority to bar the city from granting standing to all taxpayers, but insisted it did not explicitly do so in Act 193.

"The General Assembly . . . said 'we are not including taxpayers,' " Feder told the three-judge panel, "but it did not say whether City Council had standing to grand additional powers." As such, Feder argued, the right of any taxpayer to sue remains unchanged.

Stretton - who sat alongside Feder and followed him to the lectern - insisted the General Assembly had no right under state law to override the city's policy.

"Philadelphia has given standing to aggrieved persons or taxpayers," he said. "To take that away would make a mockery of home rule."

That prompted President Judge Bonnie Brigance Leadbetter to ask: "Are you saying the state cannot overrule any home-rule" provision?

"I'm not saying any," Stretton replied. "I'm saying this was about zoning, and the state had no standing to intervene."

"Do you believe the legislature has the right to expand standing?" Senior Judge Joseph F. McCloskey asked.

"That's an interesting question," Stretton replied. "I would say no."

Stretton also argued that passage of Act 193 was illegal because its title was deceptive and in violation of the state's "singe subject rule" for legislative titles. Act 193's title suggested it increased the fines the city could impose on zoning violations and violated the "single subject" rule. Feder did not agree.

Stretton said afterward he was disappointed that Feder "didn't go as far as my position." Feder was not available for comment.

In the second case, Joe Beller, representing the construction firm R.G. Woodstock L.L.C., argued that the legislature clearly intended to restrict the right of any Philadelphia taxpayer to sue the zoning board.

"How anybody can say it was ambiguous is beyond me," he told the judges.

The General Assembly "basically said to the city: 'Do what you want to do, but when you come to the state courts, you have to have a person who is aggrieved,' " Beller said.

Leadbetter praised all the lawyers in the two cases, which she said had been "well argued."