Okay. It goes over several pages of what the court says. It's a long opinion. The court says that a litigant has to have a substantial interest before he has standing. There must be some discernible adverse effect to some interest other than the abstract interest of all citizens.
The requirement that the interest be pecuniary, which may once have had independent significance no longer adds anything to the requirement of an interest having substance. So the court rejected that you had to have a pecuniary interest, meaning an economic 305 3/12/01 - RULES - BILL 000629 harm. What we're looking at is just an impact.
Other health and safety concerns. I mean, that's the basically tenets of standing.
We're under administrative law. This standard covers administrative proceedings, which are the kind of cases that come out of zoning hearings.
And other types of administrative appeals and issues that are governed under the local agency law, which is a State procedural law. 306 3/12/01 - RULES - BILL 000629
I appreciate all of that. Can any person raise those issues?
Yeah -- no, the standard that you set out, that they have to care about certain things or be affected by certain things. And isn't it that they'd be affected directly?
They have to show a direct impact, and that has been the standard for -- since 1975, as it has developed.
So what people typically do is they come to the Board, they put on their name and address, and they say, I live a block, I live a mile, I live on an artery that has traffic.
But we're not talking about what happens over at the Zoning Board, are we? 307 3/12/01 - RULES - BILL 000629
If there is a challenge to standing, the court would look at the record to see --
Let me ask this question. What happens in the situation where -- let's say you go to the Zoning Board, let's say you fill out your form, let's say that question is asked, the applicant objects to the person even 308 3/12/01 - RULES - BILL 000629 giving testimony because they're questioning standing. Let's say the Board says, Oh, yeah, they're five miles away and we're not going to even hear that testimony. They filled out their little slip, but the record is being created. They get their variance, the people appeal the Common Pleas Court, they lose the Common Pleas Court, and now they're not up at Commonwealth Court. What happens?
Right. Normally, you would have to raise it below to keep it going.
If someone was denied -- typically what happens at the Board is the Board says, We hear your objection, now the person speaks. And the objection is kept on the record.
The standard at the Board is that any party may appear before the Board. So that's why the Board has wide latitude to take testimony from anyone that's interested in 309 3/12/01 - RULES - BILL 000629 it. It's just that when it gets to the court --
Don't you think that's possibly affected by what's already in the code as it relates to any taxpayer? Won't the Board -- I mean, if this were to go the way it's written, I mean, couldn't a reasonable person -- I'm obviously, you know, again, not an attorney and I can't argue as such, but wouldn't a reasonable person say, Well, if the standard for appeal is that it's only people who are directly aggrieved or nearby or who belong to an organization, why would I sit here and listen to this person who may be a part of some citywide organization or something and stop them even now at the Zoning Board level? I mean, isn't that a logical, reasonable conclusion? Isn't that possibly a conclusion? Is it within the bounds of any rational thought that something like that might happen?
No, because I don't think the taxpayer language really even modifies who appears before the Zoning Board. And, in fact, the Zoning Board is a place for people to 310 3/12/01 - RULES - BILL 000629 come and make known their concerns about a project, even if it's not near their residence.
I understand that in the current situation. All I'm saying is, is it reasonable that if it's removed that the Board might say, Well, why do I need to sit and listen to this person, 'cause they're not going to have any subsequent appeal right because of the potential new standard?
They could still bring the appeal. But when they get to the court, one of the arguments that could be made by the land owner that's trying to develop something is that the person doesn't have standing.
A lot of times it's not made at all. And what I would say is -- what I've been trying to say about the past practice is, until the SCRUB case, no one ever considered that a taxpayer alone got you there, got you standing before the court. It wasn't applied. 311 3/12/01 - RULES - BILL 000629
I know that just from the years of practice and from writing for CLE courses where I've written on standing, and I did do --
You're saying that out of the plethora of cases in the universe, you know that no one has ever filed an appeal, whether wrote in their document or not, that no one has ever filed an appeal because they saw that one phrase in there that said "or any taxpayer," and thought, I have a shot doing something? You're saying that no one has ever gone that route before?
As a practicing lawyer in this area of the law, I and my colleagues that are on the Zoning and Land Use Committee, we are not aware of any case where people made that case. And, in fact, there were cases where people were denied standing in the past and they never used 312 3/12/01 - RULES - BILL 000629 the taxpayer argument because there was an understanding and, you know, maybe people were misreading the code. But that there was an aaggrievement that went along with being a taxpayer.
So I honestly believe that that was the status. If somebody had a case, believe me, as a practitioner, we all would want to have known that.
Let me ask this question. What's the current City policy with regard to enforcement of Section 14-1604(10)(a) of the Philadelphia Code.
I'm not familiar with the enforcement policies. I know there have been hearings held by City Council on enforcement issues, and I would presume those kind of discussions would continue.
Do you know whether 313 3/12/01 - RULES - BILL 000629 the City's enforcing the code or not?
I think the City does enforce the code if it enforces it, you know, as well as in places for matters that people are interested in, I can't speak to that.
I didn't come here today to speak as to the enforcement issues.
Well, I mean, this has all become part and parcel to the same discussion. Tell me this. If you believe that the City has been enforcing this particular provision of the code, how many billboards have been taken down?
I can't speak to the enforcement. I don't have the information on that. The point I was trying to make earlier, and I do feel strongly about it, this goes beyond billboards and to focus -- I understand that 314 3/12/01 - RULES - BILL 000629 people have a concern about the enforcement, but I can't speak to that. I would assume you could probably hold a whole 'nother hearing on that very issue.
Well, we probably could. Well, it very well does go beyond billboards. It does have potentially far-reaching impact.
A major component of this is -- it's admittedly about that, so we might as well discuss it because we're not going to be able to get around it.
I guess the question is -- I mean, what I would have asked is, how many cases did SCRUB rely on the taxpayer status to have a case or any group? I'd like to know --
Because I don't think it was common practice to use that as a vehicle to get into court, or to stay in court. 315 3/12/01 - RULES - BILL 000629
Well, the one thing I think is pretty clear out of all of this is, you know, people who are regular practitioners of the law figure out different angles and different ways. You know, there's more than one way to skin a cat, as they say. Now, who would have the information about the enforcement in this particular section, and who would be able to tell me actually how many billboards have taken down as a result of 14-1604(10(a)? Who could tell me that?
I would assume someone at L&I would be able to tell you that.
Someone like who? There are a lot of people over at L&I.
I guess if you had requested that information, the Commissioner would have somebody look at that.
I don't have any 316 3/12/01 - RULES - BILL 000629 knowledge about the enforcement of any specific code provision except for perhaps the conversion of rooming houses, which I have looked into with you.
Since Miss Phillips has been giving us legal interpretations, I would request at this point, while she sits there, that Robert Jaffe on my staff, an attorney, take the stand and give testimony on the subject. He's in sharp disagreement.
I'm sorry, Councilman. What's the request? Mr. Jaffe, before you answer the request, what is the -- I don't understand the request.
Because he has appeared in the Commonwealth Court on this matter as an attorney --
-- That was involved 317 3/12/01 - RULES - BILL 000629 in the case that decided the standing.
And what is the expert testimony he's going to offer in regards to?
He's going to offer testimony with respect to the legal aspects, the same as Miss Phillips has given, covering the same sort of --
The questions that Councilman Nutter has asked about enforcement?
No, not about enforcement, about the question of standing.
Well, the only thing I would suggest is that we have a number of people who have been waiting here in the audience for a number of hours. Mr. Jaffe is obviously on staff and being paid to be here.
He's being paid to be here, so perhaps -- (Unintelligible, parties talking over each other.)
I think we ought to 318 3/12/01 - RULES - BILL 000629 get through the list before we --
Well, these people aren't wasting their time; I think they want to be here.
There is another attorney here that can help on this. I think they're opposed to the bill, but they can give their view of that, and you're going to get more legalese.
Is the gentleman on the witness list? (Audience member responds off-mic.)
Oh, I'll stay. (Witness comes forward.) 319 3/12/01 - RULES - BILL 000629
Thank you, Councilman. My name is Stanley Krakower. I'm a lawyer and I have been practicing in the area of zoning law for approximately years. I specifically focus on 8 representing civic associations, community groups, 9 other groups, and individuals who generally are in 10 protest or in opposition to some particular zoning 11 intrusion that they -- 12
I'm sorry. Do you 13 represent applicants at all or just protestants? 14
Well, I have personal friends or relatives representing applicants for a roof deck or something like that, but I have never represented a developer.
Also, I take a great many appeals. One of the things I do is take appeals to the Court of Common Pleas from the Zoning Board and then to the Commonwealth Court. And on many occasions, I've been before the Pennsylvania Supreme Court. On all of these cases, I have always represented protestants, civic associations sometimes citywide and sometimes local groups. I'm also proud to say, by the way, that when I started in this area, representing civic groups, the first City government person to introduce me to some of these groups was Councilwoman Joan Krajewski. And I am proud to have represented the Bridesburg Civic Association, Mayfair, and many other groups in her area. I've also represented civic groups in many, many areas throughout the City, including Pennsport. Years ago Councilman, Kenney, I represented the Pennsport Civic Association.
I am here today to speak against Bill 629, and I specifically would like an opportunity to address some of the questions that 321 3/12/01 - RULES - BILL 000629 you've raised with regard to it, and also to, with all due respect, disagree with my friend Joanne Phillips with respect to the interpretation of the current status of the law as it stands right now, which includes the words "or taxpayer." And one of the keys is the use of the word "or," because if the committee will look at that bill, it talks about any person aggrieved, and then it say "or any taxpayer," and the word "or" clearly sends the message that the taxpayer does not have to be a person aggrieved. It's "or." And, therefore, the taxpayer can be someone other than the person who is aggrieved. And part of the problem is that the case law in Pennsylvania has interpreted this word "aggrieved" in a way -- and with all due respect Joanne, I must disagree with you. I think it has, in many cases, applied a pecuniary requirement, and I would like specifically to talk about the language, because this --
What I would like 322 3/12/01 - RULES - BILL 000629 you to do if you could is define for us the word "aggrieved."
All right. "Aggrieved" has been defined by the courts as someone who will suffer an injury based on, you know, if the zoning goes through. And then they go on to say the injury has to be actual, direct, substantial, and immediate. And what many cases have pointed out, the injury has to be individual; it cannot be an injury that's common to others. And there are cases from the suburbs and from rural areas where persons have been denied the ability to appeal because the courts have said, You're not aggrieved. You may be unhappy, you may think that this is bad law, but you're not aggrieved. Let me point out a couple of examples. One of the groups that I have had occasion to represent is the Sierra Club, which is an environmental club. And the Sierra Club, in 1992, took an appeal, or tried to take an appeal, from a zoning variance that involved air pollution in a rural or a suburban group. It was not Philadelphia. And they were denied standing. And 323 3/12/01 - RULES - BILL 000629 the Commonwealth Court or the Supreme Court -- and I don't have it right in front of me which one -- said in effect that air pollution -- let me see if I can find -- that air pollution is not a matter by which the loss of it makes you aggrieved. It is something that is suffered by many people. The whole community suffers if there's air pollution. So you're not individually aggrieved simply because there's air pollution. We have cases involving river protection. I'm talking now about organizations throughout the City that are interested in matters with citywide significance. There are groups called the Friends of the Schuylkill River. The Schuylkill River doesn't run just in one Councilmatic District or through one neighborhood. Something that's done upstream can bother something that's done downstream. So if there was a zoning variance going to be made upstream, the people downstream should have the right to participate, and not only participate in talking before the Zoning Board, but also if they feel that they must, to take an appeal. 324 3/12/01 - RULES - BILL 000629 I'd like to point out that taking an appeal does not mean you're right or you're going to win or you're going to interfere with something. It doesn't mean you're going to be listened to. It means you have the chance to be heard, to speak, to go to the court and --
At both levels. I believe it should be at both. Right now, it's at both levels. If you take out "taxpayer," they still can go to the Zoning Board, but not to take the appeal to the court level. And there's a problem with that.
I'm not arguing; I just want clarification. You can take the appeal, but the standard that you have to prove is now different --
Would be, if this change 325 3/12/01 - RULES - BILL 000629 is made.
Right, okay, but it doesn't prohibit you from taking the appeal; you would just have to prove the actual, direct, substantial, and immediate harm.
And right now, under the current law, you don't have to prove that.
Well, as it stands right now, under the taxpayer status, you don't.
So I guess the question -- I don't want to use the word "hypothetical" 'cause no one likes that word. The rhetorical question, then, is, if you're not actually, directly, substantially, or immediately harmed, why are you in court in the first place?
Okay. Because you can be harmed in ways that are not immediate or personal. If I live in South Philadelphia or Center City, I live right on the banks of the Schuylkill River, down around -- right below the 326 3/12/01 - RULES - BILL 000629 Art Museum, and somebody wants to put something up on the banks of the Schuylkill River and get a variance to do it up in Manayunk or in Roxborough. That's not my community; I can't even say that it is. But if I feel strongly enough, or my civic association feels strongly enough, that we're going to be willing to pay the money, hire a lawyer, put in the time and effort, and do all of the things that are involved in taking the appeal -- and then remember, only if we're right do we have any influence. If we're wrong on the law or we're wrong on the facts, the Appellate Court's going to simply say not that we don't have standing but we lose because we're wrong.
But the proposed project that you're discussing, the proposed potential project in Manayunk, along the Schuylkill River, if it in fact created an environmental hazard or an environmental circumstance that hurt you as a resident of Center City, then you would in fact be directly, actually, or substantially aggrieved.
As opposed to -- I think part of the problem is when we get into this issue of billboards. The question that Councilman Cohen proposes is the existence of that billboard is similar to, if not the same as, what goes into the water stream or what goes into the air we breathe. I think where perhaps people break off on this issue is that he claims that billboards block the sky. Some of us may in certain circumstances and in certain areas argue that we don't believe that that's the case. However, when it comes to drinking water or air that you breathe, I think it's a little clearer relationship between the effect that it has on everyone as opposed to a 60-foot pole with a sign on it which I don't believe is as intrusive. (Unintelligible, parties talking over each other.)
First, I have nothing to 328 3/12/01 - RULES - BILL 000629 do with SCRUB.
But I have been involved in cases, and I see it much more frequently in the suburbs -- in Montgomery County, in Chester County -- than do you in Philadelphia, where civic groups that you would probably think have an interest have been denied the ability to have standing because of this very tough, rigid, stringent standard called "aggrievement." And this is a part of the problem. And even if we look at the amendment that Councilman DiCicco provided to us this morning, on the proposed amendment, that adds the words including "as a matter of right a community or neighborhood group or organization." The problem is because you use the word "including" instead of the word "or," you still have a situation where that community or neighborhood group has to be aggrieved; whereas at least if it said, as you do a taxpayer or any community or 329 3/12/01 - RULES - BILL 000629 neighborhood group, so it wouldn't have to be aggrieved, that could make a difference. It's the aggrievement that's a problem. Let me point out if I can, in some of these cases that the Commonwealth Court and the Supreme Court have decided on this question of standing -- and in fact on the book that Miss Phillips represented -- discussed, Ryan's On Zoning, which is kind of like a Bible for us zoning lawyers who deal with zoning all the time. It articulates that standing in Pennsylvania is a problem because of the desire by the Pennsylvania State legislature in Harrisburg, which often has interests that I'll suggest this groups knows better than I do are different from the interests of the City of Philadelphia, and that's where the Municipality Planning Code got written, and that's the code for the rest of the State. And that's the code that has the aggrievement language in it. And there the desire to protect development against communities that are often far removed from where the development is, a shopping center. You know, if I can just digress. In 330 3/12/01 - RULES - BILL 000629 the suburbs frequently, somebody who wants to go visit their next door neighbor has to get into their car and drive from your driveway to the next guy's driveway, and if you want to go buy a loaf of bread and a quart of mile, you've got a 15-minute ride to the shopping center. Their concepts are so different from the city row houses that we live in, that if talk to some of these suburbanites about a thing like a block party, you know, the whole idea of a block party -- what do you mean "block," it's three mile away to get eight or ten people. It's a different world in Bridesburg or South Philadelphia or Pennsport. And these laws were written with those kinds of people in mind, not the interests of the people of Philadelphia. The result is that these case laws -- case decisions frequently are -- there's animosity against the idea of one person coming in and stating an opposition to some development or to some concept that's going on. In Philadelphia, we have matters that have interests throughout the City. Let me just give you some examples. I've been involved in a 331 3/12/01 - RULES - BILL 000629 case, for example, not only with Schuylkill River, but the Fairmount Park. Fairmount Park interests cover many of the communities in Philadelphia. And if it's taking place along 33rd and Ridge, that's Fairmount Park. The people who live out on the other advised Fairmount Park, in Wynnefield, where Councilman Nutter's district is, should not be precluded on the grounds that the interest is not direct, immediate. When you use terms like this -- immediate, direct, substantial, individualized, not shared by others, but just you have to show how it affects me -- you discourage group participation. That's really the issue.
Give me the other side of the argument. If in fact the actual, direct, substantial and immediate is too stringent based on the purpose of it being written for a more rural community, wherein lies the harm? See, I guess what happens is when we get -- and let's talk about bill -- this is about billboards, I mean, let's face it. I mean, all of the argument, all of the concern that has been expressed for the most part, with the exception of 332 3/12/01 - RULES - BILL 000629 other general areas, Foundation for Architecture, Preservation Coalition, other groups like that. This comes down to basically a billboard issue because SCRUB is opposed to billboards in -- is philosophically opposed. The question is, where is any harm? Not actual, direct, substantial or immediate. Where is any harm able to be proven that if a community alongside I-95 decides for whatever reason to accept the intrusion, and someone who lives in far Roxborough or the Far Northeast doesn't want the intrusion or doesn't like the whole idea of that kind of development, where is the harm to them? Now, the example you used about the river makes sense. If there's a development that's going to divert water, for example, from the river itself in order to do some process for that development, and that reduces the water level in my end of South Philadelphia by the river for some damaging perspective, at least on my view, then I think that there's some at least rationale. It's as if you don't like certain forms of art or certain forms of -- it's a more 333 3/12/01 - RULES - BILL 000629 subjective nature to this particular argument. And I guess what question is, who's subjectivity should prevail? The community that lives next to it or the person who occasionally drives by it?
All right, I'll tell you what I think is how it should be done. The community that surrounds the project should have more input than someone who's far away. I'll agree with you. But more input does not mean you close the door to the person that's far away. Let me explain what I mean.
But I think this is where we disagree. I don't think the door's being closed. You can go into the Zoning Board and create a record and become a part of the record, and then the decision doesn't go your way, you are not -- the door is not closed for you to go file 20 an appeal. At some point in time during appeal process, you need to prove to some verifier of the facts, some adjudicator of the fact that you are in fact receiving some type of potential harm. If you can't prove that and it's just a subjective "I don't like it," then where's the harm? 334 3/12/01 - RULES - BILL 000629
The harm can be more than just a subjective "I don't like it." As I said, if you have -- and maybe the billboard question is one thing. Suppose that for some reason the Society Hill Civic Association and Councilman DiCicco decided to permit McDonald's to drape golden arches over the Liberty Bell. Now, could we say that that's only Society Hill's matter because it's in Society Hill?
No. 12 (Unintelligible, parties talking over each other.)
It's not our property to begin with. I mean, I would give a better example because it's not something we have jurisdiction over anyway. It's almost as if that whole area of national historic site is out of our jurisdiction anyway, so that's not exactly the best example.
Still, there are matters which impact on more than the immediate community. They may impact -- the world is sometimes not so simple, it's a little bit more 335 3/12/01 - RULES - BILL 000629 complicated. They may impact more on the immediate community, but they have some impact elsewhere. What I am simply asking is that the elsewhere people be able to go in and take the appeal and let the court decide, We're going to follow the recommendation of this group rather than the other group, instead of locking them out the door.
I'm going to give you an example. The Penn's Landing Entertainment Center will have a significant impact on everybody who drives through and around that community, whether they live there or live in points beyond. People who will use the expressway 95, Columbus Boulevard to go to and from work, whether they live in Society Hill or Penn's Landing or live in Northeast Philadelphia or Delaware, it will have some impact to them because we do expect additional traffic. Now, should someone from Delaware County, who may have to sit in his or her car an extra five minutes a day as a result of the additional traffic that is going to be created as 336 3/12/01 - RULES - BILL 000629 a result of the entertainment center, have standing in front of the Zoning Board of Adjustment for that application?
Well, first they have to show they're a taxpayer, Councilman. If they -- (Unintelligible, parties talking over each other.)
If they work in Bridesburg and take 95 from Delaware County every morning and head north, or Columbus Boulevard and head north, and then return by the same corridor on the way back home, they are wage-tax payers in the City of Philadelphia, but they don't live there. Theoretically, today -- and correct me if I'm wrong -- they would have standing.
Even though for three years, for three years, the community that lives adjacent and across the street and down the road a mile or so in either direction were a part 337 3/12/01 - RULES - BILL 000629 of a process that engaged in the debate on the center and all of the conditions and issues that may arise from that entertainment center eventually agreed to support the project. So the third year, somebody steps up to plate and says, Forget it, I'm against it. Now what do we do?
Okay. First of all, you have to have some sense that the courts will recognize that the weight to be given to the organization to have worked with the developer is to be given more weight. There's a difference between --
There's -- (Unintelligible, parties talking over each other.)
It depends on the court. We could do lots of things to speed up the court system, but what I am saying today is locking these people out -- 338 3/12/01 - RULES - BILL 000629
What do you think that would take in time on average?
It could take a matter of a couple weeks, a couple month. It depends. But I don't think the solution --
But my point is, the development of that project -- and you know from being attorney who represents, I'm sure, all kind of clients, the development of the project hinges on the financial ability to get the project up and running. And every day that passes, it costs the development money.
Whether the individual developer, or in this case, taxpayers because we TIFed a portion of that development. So in effect, as the cost of that development increases, the taxpayers of the City of Philadelphia will absorb some of that increase, because someone in Delaware County doesn't think it's right.
But if we prevent by doing that an error, a mistake, something that comes back to haunt us later -- like maybe we did 339 3/12/01 - RULES - BILL 000629 with the route of I-95, as Councilman Kenney points out, maybe we would have been better to put it a mile to the south. If we take just a little bit of time and listen to all of the voices that want to have input --
Let me just point out one thing. It cost money -- I don't know of any cases where people --
But my point is, we've did it, we're still doing it, I still have a little bit of language to straight out with Pier 3 in relationship to that entertainment center. There's been over a three-year communities process. It's being done. And there is going to be signage attached to that development and signage in the form of naming rights. Now, someone can interpret that -- Comcast, Verizon Penn's Landing -- as a billboard. Should someone have the right to 340 3/12/01 - RULES - BILL 000629 prevent that project from occurring because, in their opinion, that is a billboard because it's advertisement to the project and hold up the project?
You can speak; it doesn't mean you're going to be listened to. You know, I voted for a candidate for President of the Unites States; he isn't the President of the United States. That doesn't mean that I shouldn't have the right to vote for a loser. I would venture to say that you have probably had bills here in City Council that have not been unanimous, and occasionally maybe, you have voted on the side that lost. The other side wins, but that doesn't mean you can't speak against the bill if you think it's, you know, a 341 3/12/01 - RULES - BILL 000629 bad bill, bad for the City.
These people should be able to speak against a zoning variance.
And if they're not listened to, the court doesn't agree, the Zoning Board doesn't agree, so be it. You just don't keep them away from the table.
You know, you're right. We couldn't get an agreement. I couldn't get a bill out of committee that would ban political posters throughout the City of Philadelphia. (Unintelligible, parties talking over each other.)
The will of the people in my district was overruled by this City Council. 342 3/12/01 - RULES - BILL 000629
But your fellow Councilpersons gave you the opportunity to be heard.
But this is what I can't -- this is what's bizarre about this entire debate. Where is anyone limited or eliminated or stopped from speaking or expressing their view, either at the Zoning Board or by taking an appeal that would now, under this bill, require, which I think is a reasonable requirement, to show where they are in fact harmed, or where are the harm is. It doesn't silence people from speak or appealing. What it does is requires them to meet a certain standard that today does not have to be met. And I would argue that because that standard does not have to be met, that the appeal process is used to delay and obstruct and to cause more cost to the project, sometimes in the hope that the project or the development will go away. And I think that's an abuse of the court process in my opinion.
Okay. Councilman, I can only tell you this. In 20 years that I have been doing primarily zoning law, and I've been before 343 3/12/01 - RULES - BILL 000629 the Pennsylvania Supreme Court numerous times, the Commonwealth Court, the Court of Common Pleas more than I can count, and the Zoning Board literally hundreds and hundreds of times. I very, very, rarely, almost never come across that as a problem. It's much more a theoretical problem than a real problem. The more common real problem is that people that live in the row houses of Philadelphia can't get heard. They go to the Zoning Board and -- (Applause.)