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Dowds v. Zoning Board of Adjustment

Commonwealth Court of Pennsylvania

June 27, 2017

Lynn Dowds, Appellant
v.
Zoning Board of Adjustment

          Argued: May 1, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE JULIA K. HEARTHWAY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge.

          OPINION

          JAMES GARDNER COLINS, Senior Judge.

         Before this Court is the appeal of Lynn Dowds (Appellant) of the September 29, 2016 order of the Court of Common Pleas of Philadelphia County (Trial Court), which granted in part, and denied in part, her appeal of the December 9, 2015 decision of the Zoning Board of Adjustment of the City of Philadelphia (ZBA). For the following reasons, we affirm the order of the Trial Court.[1]

         This matter arises out of a May 23, 2014 application filed with the Philadelphia Department of Licenses and Inspections (L&I) by George Twardy, Jr. and Catherine Twardy (Owners), owners of a property located at 1026 Winter Street, Philadelphia, Pennsylvania (Property), for a zoning/use registration permit for the demolition of the existing structure, a two-story building used as a law office, and erection of a six-story structure with an accessory roof deck, a pilot house and an interior parking garage on the first floor; the proposed structure's second floor would be used as a law office and floors three through six would hold twelve dwelling units. (January 2015 ZBA Findings of Fact (F.F.) and Conclusions of Law (C.L.), F.F. ¶ 1.)

         The proposed six-story structure, its residential and office uses, and number of parking spaces are permitted as of right by both previous and current zoning designations; however, L&I determined that the ground accessory parking garage required a special exception in the Property's CMX-4 zoning district. Owners then filed a request for a special exception for an interior rear covered parking garage to accommodate eight vehicles.[2] Subsequent to the submission of their original permit application, in addition to the L&I determination regarding the requirement of a special exception for the interior parking garage, Owners also received a correction memo indicating a refusal for curb cut/street frontage.

         On December 2, 2014, ZBA held a public hearing on Owners' request for a special exception. Appellant, who resides at 1015 Spring Street, together with a number of other neighbors who also opposed the grant of the requested special exception, appeared at the public hearing and argued that Owners' proposed development would cause increased congestion of traffic and impairment of an adequate supply of light and air to the adjacent properties. A representative from the City Planning Commission testified that her agency had no objection to the granting of the special exception for the proposed above ground parking garage and Philadelphia City Councilman Mark Squilla advised ZBA that he supported granting the requested relief. At the hearing, Owners presented a revised site plan that showed a reduced curb cut to the original twelve feet as approved by the Department of Streets in response to the correction memo.

         At the conclusion of the hearing, ZBA voted to grant the requested special exception, with a proviso regarding the curb cut size. In its Findings of Fact and Conclusions of Law, ZBA determined that the applicants had met their burden of establishing entitlement for the proposed above ground garage. ZBA concluded that given the similarities between the proposed garage and the Property's longstanding, existing use as a parking lot, as well as the low number of vehicles to be accommodated, the proposed garage will not increase congestion in the public streets or transportation systems beyond what would normally be expected of a parking garage, and further that whatever the impact of portions of the proposed building's upper stories, the garage itself will not impact light and air to adjacent properties. (2015 ZBA Findings of Fact and Conclusions of Law, C.L. ¶¶ 10, 12.)

         Appellant filed a notice of appeal of ZBA's decision to grant the special exception, arguing that Owners failed to meet their initial burden of showing that the proposed use would not have any detrimental impact on the neighborhood over and above that which is permitted as of right and also arguing, for the first time, that the special exception was barred under the pending ordinance doctrine by a change in zoning classification of Property to CMX-3.[3]The Trial Court held oral argument on August 14, 2015 and by Order and Opinion dated October 21, 2015, the Trial Court Judge remanded the case to ZBA to clarify the facts pertaining to the date of submission of Owners' application and the applicability of the pending ordinance doctrine.[4]

         On December 9, 2015, ZBA held a second public hearing, where the L&I Plans Examiner (L&I Examiner) who had reviewed the application appeared and testified. (ZBA Hearing Transcript (H.T.), December 9, 2015, Reproduced Record (R.R.) at 67a-91a.) The L&I Examiner testified as to annotations he made on the face of Owners' application, memorializing the manner in which his review was performed. (Id., R.R. at 68a.) He explained that he had noted, by its bill number, the City Council bill that affected the Property's zoning classification, had noted the date the bill changing the zoning designation from CMX-4 to CMX-3 came out of committee, June 3, 2014, and had noted on the application that the bill was therefore "not applicable" to Owners' application, which he also noted had been scheduled for review per L&I's computer system on May 27, 2014, prior to the date the bill was reported out of committee. (Id., R.R. at 88a.) He further testified that he would consider the application's process date to be the date the application was submitted, May 23, 2014; that none of the documents or revisions considered and discussed with Owners after the initial application was received would have made the application incomplete; that the application was deemed complete; and that changes made subsequent to the initial application were insubstantial, involving clarifying dimensions or providing information that was not already clear on the application plans. (Id., R.R. at 73a, 75a-76a.) At the conclusion of the hearing, ZBA voted that the operative date for the filing of the application was May 23, 2014 and that on that date the CMX-4 zoning application applied; Owners' application was not therefore subject to the pending ordinance doctrine. (Id., R.R. at 94a-95a.) In its Findings of Fact and Conclusions of Law issued in support of its decision, ZBA further found that the objectors had waived the right to raise an issue regarding the pending ordinance doctrine because they did not raise it at the initial ZBA hearing, and "even if they had not, the credible and substantial evidence in the record clearly shows that it was not applicable in this matter." (2016 ZBA Findings of Fact and Conclusions of Law (C.L.), C.L. ¶ 15.)

         Appellant appealed ZBA's decision and a different judge of the Trial Court issued the September 29, 2016 Order at issue here, denying the appeal, affirming ZBA's finding that the pending ordinance doctrine is inapplicable and affirming ZBA's grant of a special exception.[5] (September 29, 2016 Trial Court Order.) The Trial Court found that since the challenged special exception is for an open-air parking structure only, the proposed six-story building is not at issue when considering the effects of a special exception on light, air, traffic and congestion. (Id., ¶ 6.) Noting that the applicable zoning classification requires four parking spaces, and that Owners' plans call for eight parking spaces, with half of the vehicles stored underground on mechanical lifts, the Trial Court found that Owners had presented sufficient evidence that their proposed garage structure would not affect the adequate supply of light and air beyond that which would normally be expected from proper use. (Id., ¶ 8.) The Trial Court further found that Owners had met their burden of production and persuasion that the special exception for the garage would not cause congestion in the public streets beyond what normally might be expected from the proposed use, reasoning that surface level parking currently exists at the Property for at least six parking spaces, and the addition of two more vehicles does not justify a disturbance of ZBA's findings. (Id., ¶ 9.)

         On appeal to this Court, Appellant argues first that there is no substantial evidence that Owners filed a complete application before June 3, 2014, the date on which the ordinance changing the zoning of Property was reported favorably out of City Council, and that the pending ordinance doctrine therefore applies. We disagree. Under the "pending ordinance doctrine" a proposed zoning ordinance that has sufficiently advanced in the legislative process to be a "pending ordinance" applies to building permit applications filed before the ordinance was fully enacted. Piper Group, Inc. v. Bedminster Township Board of Supervisors, 30 A.3d 1083, 1085 n.2 (Pa. 2011). In the City of Philadelphia Zoning Code, a "pending ordinance" is defined as any bill not yet enacted into law that would amend either the Philadelphia Zoning Code or Zoning Maps, if a Committee of City Council has voted to report the bill and the bill remains under active consideration. Title 14 of the Code, Section 14-304 (3)(h)(1). The bill relevant in this matter amends the zoning maps, thereby changing the zoning designation of Property from CMX-4 to CMX-3, and was reported favorably by the City Council's Committee on Rules on June 3, 2014. (Certified Record.)

         On remand, the Trial Court found that the evidence in front of ZBA was sufficient and deemed credible to show that the application was filed before June 3, 2014. (Trial Court Order, ¶ 2.) As noted by the Trial Court, ZBA as fact finder is the sole judge of credibility and weight afforded to the evidence presented and as such, the Trial Court cannot disturb ZBA's finding of credibility. Manyunk Neighborhood Council v. Philadelphia Zoning Board of Adjustment, 815 A.2d 652, 658 (Pa. Cmwlth. 2002). Appellant argues that given the absence from the certified record of an unmodified version of the site plan (containing elevation & site/building data) and the diagrammatic section, it necessarily follows that such plans were not submitted at the time the application was filed, and the application was therefore incomplete prior to June 3, 2014, the date on which the new zoning classification became effective.[6]

         A representative from the project architectural firm that prepared the plans testified as to the reason for post-June 3, 2014 revision dates that appear on the revised site plan and diagrammatic section included in the certified record; she stated that, at the request of the L&I Examiner, revisions were made to adjust the height of the rooftop mechanicals, to revise the number of parking spaces and add bicycle racks, and to change the size of the street frontage ...


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