No. 114 E.D. Appeal Docket, 1983, No. 115 E.D. Appeal Docket, 1983, No. 116 E.D. Appeal Docket, 1983, Appeals from the Orders of the Commonwealth Court at Nos. 768 and 795 C.D. 1982, affirming the Order of the Court of Common Pleas of Philadelphia County at No. 6137 March Term, 1980 (Reversing on Certiorari the Findings of Fact and Conclusion of Law of the Zoning Board of Adjustment), and quashing the appeal of the Zoning Board of the City of Philadelphia; and denying appellants' Petitions for Substitution, Reconsideration and Stay, Pa. Commw. Ct. ;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Zappala, J., files a concurring opinion which Larsen and McDermott, JJ., join.
This case involves primarily the question of whether the Zoning Board of Adjustment of the City of Philadelphia (the Board) has the power to enforce its regulations as to use and structural requirements for buildings against the Department
of General Services, an agency of the Commonwealth.
The case arose when the Commonwealth, on January 31, 1979, applied to the Department of Licenses and Inspections of the City of Philadelphia for the permits necessary to construct a new two story building which would serve as a workshop and day development center for mentally handicapped persons. The proposed site for this building adjoined Kemble Park at the corner of Ogontz and Olney Avenues in Philadelphia, and had been purchased by the Commonwealth in 1974. On February 21, 1979 the Department of Licenses denied the Commonwealth's application on the grounds that the proposed use of the building was not permitted in an R-9A residential district; the proposed seven foot chain link fence was not permitted in an R-9A district; and the number and location of proposed parking spaces was not in conformity with applicable sections of the Philadelphia Code.
On March 2, 1979, the Commonwealth appealed this ruling to the Zoning Board of Adjustment of the City of Philadelphia. The Board, after three hearings, on March 5, 1980 affirmed the licensing department's denial of the necessary building permits and denied the Commonwealth's request for a variance.*fn1 On March 28, 1980 the Commonwealth petitioned the Court of Common Pleas of Philadelphia for a writ of certiorari to review the Board's decision. The Commonwealth claimed both that its use did not violate the zoning ordinance existing at the time of the purchase of the property and that the Zoning Board had no jurisdiction over the Commonwealth.
The Court of Common Pleas held that because the Commonwealth, acting under the authority of the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. § 4101 et seq., has the power to condemn property for the purpose of establishing mental health facilities in various localities, the Commonwealth is immune from local use restrictions. The Board and the Ogontz Area Neighbors Association (a group which had opposed the request for a variance before the Zoning Board) appealed to Commonwealth Court, which, by an equally divided panel, affirmed the Philadelphia Court of Common Pleas. 73 Pa. Commw. 525, 459 A.2d 50. The opinion in support of affirmance agreed with the trial court in its reliance on the Commonwealth's eminent domain power, whereas the opinion in support of reversal emphasized that the legislature, by Act of May 6, 1929, P.L. 1551 § 12, as amended, 53 P.S. § 14762, has established a conflict of laws provision applicable to Philadelphia's zoning regulations which grants preeminence to Philadelphia's zoning regulations as to conflicting statutes, ordinances or regulations when they impose less stringent requirements. Commonwealth Court also quashed the Board's appeal and denied the City's petition to be substituted nunc pro tunc for the Board. The Ogontz Area Neighborhood Association, the City of Philadelphia and the Zoning Board petitioned for allowance of appeal and we granted Allocatur.
The issues to be resolved on this appeal are three: (1) whether the City of Philadelphia, acting through its Zoning Board, may impose use, setback, height, and other related restrictions with respect to a building which the Commonwealth seeks to erect pursuant to its authority under the Mental Health and Mental Retardation Act of 1966 to plan, supervise, operate and acquire property for mental health and mental retardation facilities at various locations throughout the state; (2) whether Commonwealth Court erred in quashing the Board's appeal; (3) whether Commonwealth Court was in error in denying the City's petition to
be substituted for the Board as the party taking the appeal.*fn2
As a background to the present dispute, it is well to review the structure of the governmental entities involved and the authority pursuant to which they act. Philadelphia is a municipal corporation, and as such is subject to regulation by the state:
Municipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the Legislature and subject to change, repeal or total abolition at its will.
City of Pittsburgh v. Commonwealth, 468 Pa. 174, 179, 360 A.2d 607, 610 (1976), citing Commonwealth v. Moir, 199 Pa. 534, 541, 49 A. 351, 352 (1901). Philadelphia is also a home rule city, having taken advantage of the First Class Cities Home Rule Act, Act of April 21, 1949, P.L. 665, 53 P.S. § 13101 et seq., to adopt its Home Rule Charter. As this Court stated in Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238 (1955), Philadelphia derives its power generally to govern itself and to enact zoning regulations from the Home Rule Act:
a city taking advantage of the Act [the First Class Cities Home Rule Act], subject to certain limitations in Section 18 . . . was granted all powers and authority of local self-government together with complete powers of legislation and administration relative to its municipal functions. Section 17 of the ...