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Parker Ave., L.P. v. City of Phila.

Commonwealth Court of Pennsylvania

July 30, 2015

Parker Avenue, L.P.
v.
City of Philadelphia and Philadelphia City Council, Appellants

Argued May 6, 2015.

Page 484

Appealed from No. May Term, 2013, No. 1590. Common Pleas Court of the County of Philadelphia. Ceisler, J.

Kelly S. Diffily, Deputy City Solicitor, Philadelphia, for appellants.

Anthony R. Twardowski, Philadelphia, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY.

OPINION

Page 485

ANNE E. COVEY, JUDGE.

The City of Philadelphia (Philadelphia) and Philadelphia City Council (City Council) (collectively, City) appeal from the Philadelphia County Common Pleas Court's (trial court) May 28, 2014 orders overruling the City's preliminary objections and granting Parker Avenue, L.P.'s (Parker Avenue) Petition for Appointment of a Board of Viewers (Petition). There are three issues before the Court: (1) whether the trial court erred in holding that City Council's inherently discretionary inaction in not enacting legislation gave rise to a de facto taking; (2) whether the trial court erred in finding Parker Avenue was substantially deprived of the beneficial use and enjoyment of its property; and (3) whether the trial court erred in finding a de facto taking occurred on November 29, 2007, two weeks after the proposed legislation was introduced by a City Council member. After review, we reverse.

On March 31, 2005, Parker Avenue purchased a 7.62 acre[1] parcel of park land (Property) then zoned as R-5 Residential[2] for purposes of residential development. Shortly thereafter, Parker Avenue initiated efforts to build 48 single-family, semi-detached homes upon the Property along Cinnaminson Street, which bisects the Property. A portion of Cinnaminson Street is legally-open and sits upon Philadelphia-owned land. Philadelphia has already improved this legally-open portion of Cinnaminson Street by installing water and sewer lines, fire hydrants, manhole covers and water basins. In contrast, the portion of Cinnaminson Street that runs through the Property has not been legally opened and is merely a paper street that is essentially an unimproved trail. Parker Avenue first submitted a preliminary plat plan to Philadelphia's Planning Commission (PPC) on July 28, 2005 which the PPC approved on November 22, 2005. During the next two years, Parker Avenue obtained the necessary clearances from the Philadelphia Water Department and various environmental agencies in order to proceed with its residential development.

Thereafter, Parker Avenue submitted two proposed ordinances to Philadelphia's Streets Department, the first of which would have permitted the paving of the Philadelphia-owned portion of Cinnaminson Street, and the second which would have revised Cinnaminson Street's lines and grades so that it would be capped by a cul-de-sac, rather than extending beyond the Property's boundaries. On November 14, 2007, Philadelphia Streets Commissioner Clara Tolson (Tolson) presented both ordinances to then Philadelphia Mayor John Street (Mayor) and asked him to submit them to City Council for introduction at City Council's next meeting. These ordinances could not be enacted without City Council's authorization. The ordinances were introduced as separate bills to City Council's Committee on Streets and Services (Streets Committee) on November

Page 486

15, 2007 by Councilwoman Carol Campbell (Campbell), who was then the Councilperson for Philadelphia's Fourth District where the Property is located.

On November 21, 2007, Tolson enhanced the ordinances' introduction to City Council by sending them directly to the Streets Committee and informing its members that they were supported by the Streets Department and were being recommended to the Streets Committee for favorable action. The bills were then put on the Streets Committee's agenda to be addressed during its November 29, 2007 meeting. On November 25, 2007, Patricia Brennan (Brennan), on behalf of Ridge Park Civic Association (Ridge Park), a Registered Community Organization (RCO) located in Philadelphia's Roxborough neighborhood, having learned of the ordinances and their associated bills while perusing Philadelphia's website, emailed Councilpersons Frank DiCicco (DiCicco) and Anna Verna, and copied Campbell and four other City councilpersons. Therein, Brennan stated that the local community was strongly opposed to the development of Parker Avenue's Property, intimated that the paving of Cinnaminson Street, once completed, would create hazardous conditions, and asked for the bills to be tabled until January 2008. Brennan claimed that this delay would enable Ridge Park's members to meet with Curtis Jones (Jones), who had defeated Campbell in the recent election and was slated to become the Fourth District's new councilperson.

Brennan's efforts were successful. The bills were removed from the Streets Committee's agenda and were not addressed during its November 29, 2007 meeting. On December 7, 2007, on behalf of Parker Avenue, Gregory Ventresca (Ventresca) sent DiCicco a letter in which he asked the Streets Committee to reconsider its decision and convene a special meeting prior to City Council's December recess, so the bills could be approved. This request was not acted upon, and the ordinances lapsed when Campbell left office at the end of 2007.

In January 2008, Jones assumed his position as the Fourth District's councilperson, whereupon both Parker Avenue and Ridge Park quickly attempted to sway him with their respective arguments. In response, Jones encouraged Parker Avenue to meet with the Germany Hill[3] community, in order to see whether its residents could be convinced to drop their resistance. Parker Avenue followed Jones' advice, meeting numerous times with Ridge Park over the course of the following two years, and showing Ridge Park a number of alternate development proposals. However, Ridge Park's members remained opposed to the ordinances.

In early 2013, Parker Avenue filed a complaint in federal court against the City for violation of the Equal Protection Clause and the Due Process Clause of the United States (U.S.) Constitution seeking damages and a writ of mandamus compelling the City to pave Cinnaminson Street. The U.S. District Court held that " [Parker Avenue] simply has no property interest and thus no procedural due process right to be heard in that forum either to urge passage or to urge defeat of legislation even though it may affect the value of [Parker Avenue's] real estate[; ]" and, " while the complaint avers that [Jones] and City Council are being irrational and arbitrary in failing to enact legislation desired by [Parker Avenue] and that [Parker Avenue] is being harmed as a result, it has

Page 487

simply not pleaded sufficient facts to make plausible the conclusory allegations of unconstitutional behavior[,]" and thus, dismissed the complaint for failure to state a claim. Parker Ave., L.P. v. City of Phila. (E.D. Pa. No. ...


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