When I left Philadelphia, I thought I had largely left NIMBY zoning disputes behind. However, I quickly learned that the Main Line NIMBY is simply a tiger of a different stripe (and better financed and represented than their Philadelphia brethren).
One dispute that recently caught my attention concerns the proposed demolition of a 120 year old church in Narberth. A developer wishing to demolish a church and develop apartments and drawing the ire of certain neighbors is something that is routine in Point Breeze or Fishtown. However, apparently the same is true on the Main Line. At issue in the case, is a restriction contained in a 1891 deed that apparently states that only a church can be built on the property. (The article discussing the case does not quote the precise language of the purported restriction.)
What is interesting about the Narberth situation is Narberth’s elected officials seem to be encouraging neighbors to seek an injunction against the demolition of the church based on the deed restriction. According to the article, Narberth Mayor Tom Grady said neighbors could bring a challenge to the proposed development. Narberth Council President Aaron Muderick doubled down and is quoted as saying “[i]f neighbors wanted to file for an injunction, they could.” In Philadelphia, the politicians typically remain in the shadows while encouraging neighbors to do their bidding.
The residents of Narberth should hope that their Mayor’s and Council President’s political acumen is better than their legal acumen because they are peddling a dubious legal position. The reason – as is often the case is NIMBY litigation – is standing. In Pennsylvania, there is no general standing to challenge the use of another’s land. Instead a person must demonstrate an substantial, immediate, and direct interest in the proposed use of the land. The vague desire to keep “the character of the community” intact is not enough. The prohibition on general standing is what I frequently invoke to quash the appeal of a zoning variance granted to a developer. The NIMBY’s rarely have the requisite standing to challenge the local zoning board’s decision.
With deed restriction the standing requirements – for lack of a better word – are even more restrictive. Pennsylvania courts allow neighbors standing to enforce deed restrictions in two instances: (1) where plaintiffs are clearly identified as the third party beneficiaries of the restriction; and (2) where plaintiffs are given rights to enforce the restriction through a planned subdivision with a shared restrictive covenant.
In the Narberth case, scenario two is not at play because the deed restriction is not part of a planned subdivision or shared restrictive covenant. So, the neighbors would have to show that they are clearly identified third party beneficiaries of the restriction. Even without the benefit of the language of the deed restriction at issue, that would seem to be impossible. Since none of the neighbors were alive when the deed was drafted, they could not have been named as beneficiaries. So unless the deed contains some language that clearly states that the restriction is for the benefit of the neighbors in general, which is unlikely because the Borough of Narberth did not even exist in 1891, then any challenge is not likely to survive the pleading stage.
Worse yet, if the neighbors were to follow the advice of their elected officials, they could end up on the wrong side of a Dragonetti lawsuit by the developer.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
