This appeal required the Commonwealth Court to determine if a Philadelphia City Council member had standing to challenge the Philadelphia Zoning Board of Adjustment’s (the Board) grant of a variance to create a private driveway.  More specifically, the court had to decide whether or not the First Class City Home Rule Act (the HRA), the Philadelphia Zoning Code (the Code), or the challenger’s status as a council member granted him standing.  The court held that the plain language of the HRA and the Code grants standing to the city council only as a single government body, and it further held that there was no “legislative standing” because the city council’s authority to regulate public streets was not impaired by the granting of this particular variance.


A developer, Land Endeavor (the Developer), sought a variance relating to a proposed residential development.  The Developer wanted to provide access to two buildings by way of a private driveway off of Legion Street, in Northeast Philadelphia.  Brian J. O’Neill (the Appellant), the city council member for that district, argued this proposed driveway was in fact a new city street, and he wanted water and sewer installed underneath it.  The Board rejected this request and granted the Developer’s variance to create the driveway.  The Appellant appealed to the trial court, which held that the Appellant had standing to challenge but denied his appeal on the merits.  The Appellant appealed to the Commonwealth Court.

At the Commonwealth Court, the Developer argued that the Appellant had no standing to challenge the Board’s decision as an individual or in his official capacity because he was not an “aggrieved party” and had not shown legislative standing.  In response, the Appellant argued that he was granted standing by (1) Section 17.1 of the HRA, (2) Section 14-303(15)(b)(.1) of the Code, and (3) his status as a city council member.

The Commonwealth Court rejected all of the Appellant’s contentions and dismissed the appeal for lack of standing.  First, the plain language of both provisions cited by the Appellant made clear that the Philadelphia City Council may challenge the Board’s decisions only as one government body.  Section 17.1 of the HRA provides “the governing body . . . shall have standing to appeal any decision of a zoning hearing board.”  Similarly, Section 14-303(15)(b)(.1) of the Code states “[a] final decision made by [the Board] . . . may be appealed . . . by any aggrieved party or by City Council.”  The Commonwealth Court refused to “redraft the [HRA] or the Code” to conform to the Appellant’s contentions.

Second, the Commonwealth Court held that the Appellant did not have legislative standing in this case.  Legislative standing permits legislators and council members to sue based on their official statuses when there has been a perceptible infringement on their official authority.  The Appellant argued that the Board “usurped City Council’s authority to legislate for and create public streets . . . by providing a private street by means of a variance.”  According to the Commonwealth Court, however, the variance did not create a street.  Rather, it created a private driveway, and the Board had exclusive authority to grant such a variance.  As a result, the Appellant’s official authority to regulate public streets was not impaired, and he lacked legislative standing.


Click here to read: O’Neill v. Phila. Zoning Hearing Bd. of Adjustment, No. 1403 C.D. 2016 (Pa. Cmmw. Ct. Aug. 30, 2017).

Edited by: Robert Turchick