Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., files an opinion in support of affirmance. Papadakos, J., files an opinion in support of affirmance joined by Nix, C.j. Larsen, J., files an opinion in support of reversal joined by Flaherty and Zappala, JJ. Stout, J., did not participate in the consideration or decision of this case.
The Court being equally divided, the Order of the Commonwealth Court is AFFIRMED.
OPINION IN SUPPORT OF AFFIRMANCE
The City of Philadelphia, owner of the land in question, would lease the ground, zoned residential, for commercial purposes, if the lessee could obtain a variance. I agree with the Commonwealth Court that a release of seven acres by a variance from residential to commercial zoning, under the circumstances here, with the City as the owner, is a matter for legislation by the City Council.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant, Potamkin Chevrolet ("Potamkin"), was granted a zoning variance by the Philadelphia Zoning Board of Adjustment ("Board"). On appeal, the variance was affirmed by the Court of Common Pleas of Philadelphia County. The Commonwealth Court reversed, however, on the grounds that the Board lacked jurisdiction to grant the variance because the proposed change from residential to commercial use constituted a rezoning. We granted Appellant's petition for allowance of appeal because we were persuaded that there may be some confusion and uncertainty in our law with respect to a zoning board's jurisdictional power to grant relief, by a hardship variance, from zoning restrictions which, as a practical matter, preclude any use of the land, as opposed to relief that must be sought exclusively by rezoning through curative amendment. After a careful review of the record, we have concluded that Potamkin's appeal must be dismissed because of mootness.
A brief summary of the underlying facts in this case reveals the following. The two contiguous tracts (totaling 7.7 acres) which are the subject of this appeal were zoned R-3 and R-4 residential under Sections 14.204 and 14.205 of the Philadelphia Zoning Code. They are owned by the City of Philadelphia and, of course, located within its boundaries. Because they lie within the flight path controls for nearby Northeast Philadelphia Airport, however, residential development
is prohibited by both federal and local aviation regulations. The tracts, which are wooded and completely unimproved, are bordered on the south by Potamkin's car dealership. Potamkin leased the tracts from the City of Philadelphia in a lease dated December 23, 1983, contingent upon receiving zoning approval of the contemplated commercial uses connected with its dealership. Potamkin planned to use the tracts for outdoor parking, display, storage and sale of its motor vehicles and as parking for its customers and employees.
The fact that this lease was automatically terminated under its own terms, because final zoning approval was never received within the time period specified, renders this appeal moot. The issue is fully discussed immediately below. Once Potamkin entered into its lease with the City, it promptly applied to the City's Department of Licenses and Inspection for the relevant use and zoning permits. Following denial of its application, Potamkin appealed to the Board for a variance. Witnesses for Potamkin, as well as witnesses who included individuals and representatives of neighborhood groups opposed to the variance (Appellees), testified at a public hearing before the Board. The Board subsequently granted the requested variance, subject to conditions, under Section 14-1801(1)(c) of the Philadelphia Zoning Code. Appeals were taken and, as noted, the Commonwealth Court ultimately reversed in an opinion dated July 28, 1986.
The lease agreement which Potamkin entered into with the City of Philadelphia on December 23, 1983 (R., 84a-102a), contains, inter alia, the following provisions:
(4)(b) The commencement of the principal term is further conditioned upon the issuance to Lessee by the duly constituted public authorities of final, unappealable zoning changes, zoning variances and authorizations and permits (hereinafter referred to as "zoning approval") as may be necessary or desirable by Lessee to permit the construction, installation and operation of such improvements upon the premises as may be contemplated or
permitted hereunder and the use of the premises permitted hereunder.
(4)(c) In the event the approval of the FAA in a form acceptable to Lessee and the satisfaction (or waiver) by Lessee of the conditions set forth in subsection 4(b) has not occurred and been confirmed in writing by Lessee prior to one year from the date hereof, then this Lease shall be automatically null and void. (R. 86a-87a, emphasis added.)
The Commonwealth Court assumed that Potamkin had either waived this condition or agreed to an extension of the time period for its occurrence.*fn1 Making such an assumption was unjustified. There is absolutely nothing in this record whatsoever to indicate that Potamkin waived the condition,*fn2 or entered into a collateral agreement with the City to extend the time or otherwise change the terms of these clauses in the lease. What the parties, in fact, agreed to in this lease was a condition and not a covenant. Compare, Williams v. Notopolos, 259 Pa. 469, 103 A. 290 (1918), and Ritz v. Rafail, 366 Pa. 274, 77 A.2d 411 (1951). While one party to a covenant may decline to enforce it, either by a suit for damages or equitable relief, and hence waive any rights he or she has under such an agreement, a condition operates quite differently. Here, by its expressed language, this lease was drafted so that it would ...