Appeal of: D.L. Clarke From a Decision of ZBA ~ Appeal of: D.L. Clarke

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Darrell L. Clarke :
From a Decision of Zoning :
Board of Adjustment :
: No. 249 C.D. 2023
Appeal of: Darrell L. Clarke : Argued: April 9, 2024
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE WALLACE FILED: May 24, 2024
Darrell L. Clarke (Council President), former President1 of the City of
Philadelphia (City) Council, appeals from the February 10, 2023 order of the Court
of Common Pleas of Philadelphia County (Common Pleas), which: (1) determined
Council President lacked standing to appeal a decision of the City’s Zoning Board
of Adjustment (ZBA) granting 1451 N. Broad Street, LLC (Landowner) a variance,
and (2) quashed Council President’s appeal. Council President argues this Court
should vacate Common Pleas’ order quashing his appeal, because he had standing
to appeal the ZBA’s decision as City Council’s designated representative pursuant
to a validly enacted resolution. Upon review, we affirm.
1
Although Darrell L. Clarke was City Council President from the time he filed his initial appeal
through briefing before this Court, he is no longer a member of the City Council. See
https://phlcouncil.com/council-members/ (last visited May 23, 2024); City Council President
Darrell Clarke talks Philly’s future as tenure comes to an end, https://www.nbcphiladelphia.com/
news/politics/city-council-president-darrell-clarke-talks-phillys-future-as-tenure-comes-to-an-
end/3718552/ (last visited May 23, 2024).
I. Background
Common Pleas set forth the facts underlying this appeal, which are not in
dispute, as follows:
[Landowner] is the owner of a commercially zoned . . . property located
at 1451 N. Broad St. Due to a water department right-of-way that
crosses through the property and reduces the footprint of any potential
development on the property, [Landowner] sought a height variance to
construct a mixed-use building that would exceed the normal height for
a building [in the zoning district.] The Department of Licenses and
Inspections denied the variance. [Landowner] appealed the decision to
the [ZBA]. The proceedings before the ZBA, which involved an initial
vote, an appeal to the court of common pleas, a remand [] to the ZBA,
and a new vote by the ZBA, eventually resulted in the ZBA granting
the variance.
[Council President], in his purported capacity “as designated
representative of Philadelphia City Council,” appealed the ZBA’s
decision to [Common Pleas.]
Reproduced Record (R.R.) at 257.2
Common Pleas reviewed the ZBA’s certified record and the parties’ briefs.
Id. at 257. In addition, the parties presented oral argument to Common Pleas. Id.
Landowner argued before Common Pleas that Council President lacked standing to
appeal the ZBA’s decision pursuant to O’Neill v. Philadelphia Zoning Board of
Adjustment, 169 A.3d 1241 (Pa. Cmwlth. 2017). See R.R. at 217-29. In O’Neill, a
City Council member, in his individual capacity, appealed a decision of the ZBA for
a property located in his legislative district. O’Neill, 169 A.3d at 1243-45. The
property’s owner challenged the councilmember’s standing, arguing he was not
personally aggrieved and did not have legislative standing. Id. at 1244. In response,
2
Council President failed to include a lowercase “a” following the page numbers in his
reproduced record, in violation of our Rules of Appellate Procedure. See Pa.R.A.P. 2173.
2
the councilmember argued, relevantly, that he had standing under Section 17.1 of
the First Class City Home Rule Act3 (Home Rule Act) and Section 14-303(15)(b)(.1)
of the Philadelphia Zoning Code4 (Zoning Code). O’Neill, 169 A.3d at 1244.
Section 17.1 of the Home Rule Act, which applies to the City, provides:
In addition to any aggrieved person, the governing body vested with
legislative powers under any charter adopted pursuant to this act shall
have standing to appeal any decision of a zoning hearing board or other
board or commission created to regulate development within the city.
As used in this section, the term “aggrieved person” does not include
taxpayers of the city that are not detrimentally harmed by the decision
of the zoning hearing board or other board or commission created to
regulate development.
Added by the Act of November 30, 2004, P.L. 1523, 53 P.S. § 13131.1. Likewise,
Section 14-303(15)(b)(.1) of the Zoning Code provides that “any aggrieved party or
. . . City Council” may appeal a final decision of the ZBA.
In O’Neill, this Court noted:
The plain language of both the Home Rule Act and the [Zoning] Code
grants standing to City Council as a body, nowhere does either grant
standing to individual councilmembers. The Home Rule Act and
[Zoning] Code could have easily been drafted to include language
granting standing to individual councilmembers if that was the intent;
however, neither was drafted a such. This Court cannot insert language
or otherwise redraft the Home Rule Act or the [Zoning] Code.
Moreover, whether councilmembers have appealed zoning decisions in
the past and whether constituents can afford to appeal are not
considerations for this Court and do not allow this Court to ignore the
plain language of the Home Rule Act and the [Zoning] Code. Likewise,
the fact that the trial court deems it “cumbersome” for City Council to
pass a resolution authorizing a councilmember to appeal a zoning
decision before the trial court adjudicates the matter is not relevant. Our
review of the pleadings indicates that [the councilmember] has
3
Act of April 12, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157.
4
City of Philadelphia, Pa., Zoning Code (2012), as amended.
3
appealed the [ZBA’s] decision in his capacity as an individual member
of City Council. Thus, [the councilmember] lacks standing under the
Home Rule Act and the [Zoning] Code to appeal from the [ZBA’s]
decision.
O’Neill, 169 A.3d at 1245.
Council President argued before Common Pleas that after this Court’s
decision in O’Neill, City Council adopted Resolution No. 200064 (Resolution
200064),5 which authorized him to appeal the ZBA’s decision as City Council’s
designated representative. See R.R. at 233-35, 250. Due to his status as City
Council’s representative pursuant to Resolution 200064, Council President argued
he was exercising City Council’s standing under the Home Rule Act and the Zoning
Code, and O’Neill no longer applies.
In quashing Council President’s appeal for lack of standing, Common Pleas
reviewed this Court’s decision in O’Neill. R.R. at 262. Common Pleas then opined
that City Council’s rules of parliamentary procedure prohibit it from “delegat[ing] a
duty to an individual where that duty is specifically vested (by statute) to the City
Council as a whole.” Id. Because Resolution 200064 purported to allow one
member of City Council to appeal a ZBA decision while City Council as a body has
statutory standing, Common Pleas determined Resolution 200064 “is not a legal and
binding act of City Council as a whole that is specific to this case.” Id. at 263. As
a result, Common Pleas concluded Resolution 200064 “does not confer standing
upon [Council President]” and quashed Council President’s appeal. Id. Council
President timely appealed to this Court. Id. at 264.
5
The full text of Resolution 200064 is included below.
4
II. Issues
On appeal, Council President argues he was authorized to exercise City
Council’s standing in pursuing this appeal as City Council’s designated
representative pursuant to Resolution 200064. See Appellant’s Br. at 4-5. Council
President further argues Common Pleas misinterpreted Resolution 200064, which
“was not meant to confer standing, but instead . . . provide[s] a mechanism by which
City Council can efficiently exercise its standing.” Id. at 6. In addition, Council
President argues his actions in appealing the ZBA’s decision on City Council’s
behalf was proper because City Council passed Resolution No. 230169 (Ratifying
Resolution) on March 9, 2023, specifically authorizing and ratifying the actions he
took in this matter and permitting him to “take all further steps on behalf of and as
representative of Council with respect to such appeals as [Council President]
determines [are] appropriate for the successful prosecution of such appeal, including,
if necessary, any further appeals.” Id. at 8, Ex. B.
In response to Landowner’s arguments that this Court’s decision in O’Neill
controls this matter and that City Council exceeded its authority by delegating its
standing to individual City Council members, Council President argues Resolution
200064 does not implicate non-delegation principles because it is a procedural
resolution that does not delegate the power to enact legislation. See Appellant’s
Reply Br. at 2. Instead, Council President contends “the resolution authorizes [him]
to designate a council member to take the procedural steps to obtain legal counsel
for City Council and then appeal zoning decisions on [its] behalf.” Id. In addition,
Council President responded to Landowner’s arguments that this Court could not
consider the Ratifying Resolution because it is not part of the record on appeal by
arguing the Ratifying Resolution “is a duly passed resolution of City Council and
5
should be considered by this Court like any other relevant legal authority that bears
on a relevant issue.” Id. at 3. Council President also argues this Court “can take
judicial notice of [the Ratifying Resolution] under established law.” Id.
After the parties filed briefs with this Court, Council President retired from
City Council. Thereafter, Landowner filed an Application to Quash this appeal,
arguing Council President lacks any standing he may have had by virtue of his
position as a member of City Council, and this Court must dismiss the case as moot.
City Councilmember Jeffery Young, Jr. (Councilmember Young) answered the
Application to Quash, asserting he was automatically substituted as Council
President’s successor pursuant to Pennsylvania Rule of Appellate Procedure 502(c)
(Rule 502(c)).
III. Analysis
As a preliminary matter, we disagree with Landowner’s assertion that Council
President’s retirement from City Council renders this appeal moot. As
Councilmember Young properly noted, Rule 502(c) provides:
When a public officer is a party to an appeal or other matter in an
appellate court in his official capacity and during its pendency dies,
resigns, or otherwise ceases to hold office, the matter does not abate
and his successor is automatically substituted as a party. Proceedings
following the substitution shall be in the name of the substituted party,
but any misnomer not affecting the substantial rights of the parties shall
be disregarded. An order of substitution may be entered at any time,
but the omission to enter such an order shall not affect the substitution.
Pa.R.A.P. 502(c). Rule 502(c) applies to Council President’s retirement, and
Councilmember Young, as Council President’s successor in representing the City’s
5th District (which is the district where Landowner’s property is located), is
appropriately substituted for Council President. Accordingly, Councilmember
6
Young is permitted to pursue this appeal, and we deny Landowner’s Application to
Quash.
Turning to the merits of this appeal, which are limited to whether Council
President had standing to pursue his appeal to Common Pleas, we note that
“[t]hreshold issues of standing are questions of law; thus, our standard of review is
de novo and our scope of review is plenary.” Johnson v. Am. Standard, 8 A.3d 318,
326 (Pa. 2010) (citation omitted). In other words, we do not defer to the lower
court’s conclusions of law, and we review the entire record with a fresh pair of eyes.
“In Pennsylvania, a party seeking judicial resolution of a controversy ‘must
establish . . . he has standing to maintain the action.’” Johnson, 8 A.3d at 326 (citing
Fumo v. City of Phila., 972 A.2d 487, 496 (Pa. 2009)). Standing is generally a
judicially created doctrine in Pennsylvania, requiring a person to be “adversely
affected in [some] way by the matter he seeks to challenge.” Id. There are, however,
instances where statutes expressly confer standing upon additional parties. See, e.g.,
Pa.R.A.P. 501 (“Except where the right of appeal is enlarged by statute, any party
who is aggrieved by an appealable order . . . may appeal therefrom.”).
Under Section 17.1 of the Home Rule Act, “City Council is the governing
body vested with legislative powers providing it with standing in zoning decisions.”
Dowds v. Zoning Bd. of Adjustment, 242 A.3d 683, 693 (Pa. Cmwlth. 2020) (citation
omitted). “Thus, under the plain language of the Home Rule Act, standing to appeal
a zoning decision in the City is limited to two classes – aggrieved persons6 and . . .
the City Council . . . .” O’Neill, 169 A.3d at 1245. Section 14-303(15)(b)(.1) of the
Zoning Code also provides that any aggrieved party or “City Council” may appeal a
final decision of the ZBA.
6
Neither Council President nor Councilmember Young have asserted they are aggrieved persons.
7
Council President posits City Council created a way around this Court’s
holding in O’Neill that individual councilmembers who are not aggrieved persons
do not have standing to appeal from decisions of the ZBA under Section 17.1 of the
Home Rule Act and Section 14-303(15)(b)(.1) of the Zoning Code. Council
President’s arguments all rest squarely upon his belief that Resolution 200064
authorized him to appeal the ZBA’s decision on City Council’s behalf.
To determine if Council President’s reliance on Resolution 200064 is proper,
we must begin by examining Resolution 200064. Although the Statutory
Construction Act of 1972 (Act), 1 Pa.C.S. §§ 1501-1991, is not expressly applicable
to the construction of City Council legislation, we have consistently applied the rules
of statutory construction to interpret City Council legislation. See, e.g., SPTR, Inc.
v. City of Phila., 150 A.3d 160, 169 (Pa. Cmwlth. 2016) (utilizing the rules of
statutory construction to interpret a provision of the Zoning Code). The primary
objective of statutory construction is to determine legislative intent. See Section
1921(a) of the Act, 1 Pa.C.S. § 1921(a). “When the words of a statute are free and
clear from all ambiguity, the letter of it is not to be disregarded under the pretext of
pursuing its spirit.” Section 1921(b) of the Act, 1 Pa.C.S. § 1921(b). Therefore, we
“will only look beyond the plain meaning of the statute where the words of the statute
are unclear or ambiguous.” Commonwealth v. Diodoro, 970 A.2d 1100, 1106 (Pa.
2009). In addition, we should “not insert words . . . that are plainly not there.”
Frazier v. Workers’ Comp. Appeal Bd. (Bayada Nurses, Inc.), 52 A.3d 241, 245 (Pa.
2012) (citation omitted).
With these principles in mind, we turn to Resolution 200064’s text, which
provides:
8
RESOLUTION
Authorizing requests to the Law Department to represent City Council
in appeals from decisions of the Philadelphia Zoning Board of
Adjustment and, if the Law Department declines to render such services
to City Council, authorizing the retention of outside counsel to provide
such services.
WHEREAS, The Philadelphia Zoning Board of Adjustment (“ZBA”)
has jurisdiction over a variety of matters arising under Title 14 of The
[Zoning Code]; and
WHEREAS, Decisions of the ZBA directly affect the legislative policy
of City Council as expressed in the Zoning Code and in other duly
enacted ordinances and resolutions; and
WHEREAS, For that reason, City Council wishes to be able to
participate in appeals from ZBA decisions, whether to appeal from
ZBA decisions contrary to the legislative policy of City Council, or to
support the decisions of the ZBA that are consistent with the legislative
policy of City Council; and
WHEREAS, Section 2-105 of the Philadelphia Home Rule Charter
provides that “[i]n the event the Law Department declines to advise or
render legal services to the Council in any matter . . . the Council may
employ and fix the compensation of counsel of its own selection to
handle such matter”; now, therefore, be it
RESOLVED, BY THE COUNCIL OF THE CITY OF
PHILADELPHIA, That the President of City Council may from time
to time designate a member of City Council to serve as the designated
representative of City Council with authority to request the Law
Department to represent City Council in an appeal from a particular
decision or decisions of the Philadelphia Zoning Board of Adjustment,
and with authority to take any other actions necessary to carry out the
intent of this Resolution.
FURTHER RESOLVED, That if the Law Department declines any
request to represent City Council pursuant to this Resolution, then the
Council hereby authorizes the retention of outside counsel to represent
City Council in such matter.
R.R. at 249.
9
Resolution 200064’s preamble is wholly focused on authorizing City Council
to obtain representation for appeals from ZBA decisions by either the City’s Law
Department or outside counsel. The “whereas” clauses stress the importance of City
Council’s ability to pursue appeals of ZBA decisions. The “whereas” clauses then
identify that “Section 2-105 of the Philadelphia Home Rule Charter provides that ‘in
the event the Law Department declines to advise or render legal services to the
Council in any matter . . . the Council may employ and fix the compensation of
counsel of its own selection to handle such matter.’” Id. Thus, Resolution 200064’s
purpose and intent, as plainly revealed in its preamble and whereas clauses, is to
facilitate City Council’s ability to obtain legal representation for appeals of ZBA
decisions.
After explaining its purpose and intent, Resolution 200064 authorizes the City
Council President to give a member of City Council “authority to request the Law
Department . . . [to] represent City Council in an appeal from a particular decision
or decisions of the [ZBA], and . . . to take any other actions necessary to carry out
the intent of this Resolution.” Id. (emphasis added). Finally, Resolution 200064
provides “[t]hat if the Law Department declines any request to represent City
Council pursuant to this Resolution, then the Council hereby authorizes the retention
of outside counsel to represent City Council in such matter.” Id. (emphasis added).
Resolution 200064 does not address City Council’s pursuit of appeals from
ZBA decisions beyond obtaining counsel, which Resolution 200064 repeatedly
references as counsel “to represent City Council,” and not as counsel to represent a
designated member of City Council on behalf of City Council. In addition,
Resolution 200064 does not reference Section 17.1 of the Home Rule Act, or even
mention standing. In contrast, Resolution 200064 explicitly references Section
10
2-105 of the Philadelphia Home Rule Charter relating to obtaining legal
representation. This demonstrates City Council is able to correctly identify the law
which gives it authority to issue a resolution. City Council’s failure to reference
Section 17.1 of the Home Rule Act, or even some principle of standing, also
demonstrates that, contrary to Council President’s arguments, Resolution 200064
was not intended to “provide a mechanism by which City Council can efficiently
exercise its standing.” See Appellant’s Br. at 6.
For these reasons, we conclude Resolution 200064’s clear and unambiguous
language does not authorize individual members of City Council to appeal decisions
of the ZBA on behalf of City Council. Council President was not, therefore,
authorized to appeal the ZBA’s decision in this matter on City Council’s behalf
under Resolution 200064.
Council President, now Councilmember Young, also argues the Ratifying
Resolution cured any defects in Resolution 200064 because it expressly authorized
and ratified Council President’s appeal in the matter. City Council passed the
Ratifying Resolution on March 9, 2023, over one year after Council President filed
an appeal of the ZBA’s decision with Common Pleas, and nearly one month after
Common Pleas issued its February 10, 2023 final order quashing Council President’s
appeal for lack of standing. Even if we were to consider the Ratifying Resolution,
and even if we were to determine it was valid, City Council did not provide any
argument or binding authority7 to support its purported ability to retroactively
7
Council President argued the Ratifying Resolution was enacted to ratify Council President’s
actions pursuant to Judge Brobson’s, now Justice Brobson, concurring opinion in O’Neill. See
Appellant’s Reply Br. at 13-14. First, we note that Judge Brobson’s concurrence in O’Neill is not
binding authority. Nevertheless, in his concurrence in O’Neill, Judge Brobson indicated he was
writing separately because he “can fathom a circumstance where the [City Council] may not be
nimble enough to act as a body within the time constraints for challenging . . . a decision [of the
(Footnote continued on next page…)
11
authorize a councilmember to file an appeal on its behalf. Thus, the Ratifying
Resolution does not cure Resolution 200064’s defects.8 See Commonwealth v.
Brown, 196 A.3d 130, 185 n.21 (Pa. 2018) (“[A]ppellate courts are ‘neither
obligated, nor even particularly equipped, to develop an argument for a party. To do
so places the Court in the conflicting roles of advocate and neutral arbiter.’”).
Accordingly, we are left with a situation similar to the one this Court
previously analyzed in O’Neill. Council President, while attempting to appeal on
behalf of City Council, did not have valid authorization from City Council to appeal
on its behalf. Therefore, like in O’Neill, we conclude Council President, as an
individual councilmember, lacks standing under the Home Rule Act and the Zoning
Code to appeal from the Board’s decision.
IV. Conclusion
For the reasons set forth above, we deny Landowner’s Application to Quash
Council President’s, now Councilmember Young’s, appeal. Nevertheless, we
conclude neither Resolution 200064 nor the Ratifying Resolution authorized
Council President’s appeal from the ZBA’s decision in this matter. Accordingly,
Council President lacked standing under Section 17.1 of the Home Rule Act and
Section 14-303(15)(b)(.1) of the Zoning Code, and we affirm Common Pleas’ order
ZBA]. In that situation, it may be adequate for a councilperson to initiate a challenge on behalf of
City Council, with prompt formal action by City Council thereafter ratifying the appeal.” O’Neill,
169 A.3d at 1247 (Brobson, J., concurring). City Council’s act in passing the Ratifying Resolution
was not “prompt.” Thus, even if we applied Judge Brobson’s more permissive approach, the
Ratifying Resolution would not cure Council President’s lack of standing.
8
Because we concluded, under these facts, that neither Resolution 200064 nor the Ratifying
Resolution authorized Council President’s appeal, we do not reach the question of whether City
Council could validly pass an ordinance or resolution designating a legal representative for
purposes of appealing ZBA decisions.
12
quashing Council President’s, now Councilmember Young’s, appeal for lack of
standing.9
______________________________
STACY WALLACE, Judge
9
While Common Pleas opined Council President lacked standing because Resolution 200064 was
invalid, this Court may affirm an order on appeal if it is “right for any reason.” In re A.J.R.-H.,
188 A.3d 1157, 1175–76 (Pa. 2018). Under this “right for any reason” doctrine, a reviewing court
has the authority to affirm a lower court’s decision on any basis, so long as it is supported by the
record. Id. In Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 88
(1943), the United States Supreme Court explained that “[i]t would be wasteful to send a case back
to a lower court to reinstate a decision which it had already made but which the appellate court
concluded should properly be based on another ground.” Therefore, in cases where the facts of
record are undisputed, we may apply the “right for any reason” doctrine. Bearoff v. Bearoff Bros.,
327 A.2d 72, 76 (Pa. 1974). Where disputed facts must be resolved, however, our Court does not
“assum[e] the role of fact-finder in an attempt to sustain the action of the court below.” Id. Rather,
we apply the “right for any reason” doctrine in cases where the undisputed facts support a legal
conclusion which, while different from the lower court’s legal conclusion, produces the same
outcome. In re A.J.R.-H., 188 A.3d at 1175-76.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Appeal of: Darrell L. Clarke :
From a Decision of Zoning :
Board of Adjustment :
: No. 249 C.D. 2023
Appeal of: Darrell L. Clarke :
ORDER
AND NOW, this 24th day of May 2024, 1451 N. Broad Street, LLC’s
February 6, 2024 Application to Quash this appeal is DENIED, and the February
10, 2023 order of the Court of Common Pleas of Philadelphia County, which
quashed Darrell L. Clarke’s appeal of a decision of the Zoning Board of Adjustment
for lack of standing, is AFFIRMED.
______________________________
STACY WALLACE, Judge