E. DiCicco v. Ciocca and A. Sellecchia v. City of Philadelphia ZBA ~ Appeal of: City of Philadelphia ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emilio DiCicco, Vincenzo Ciocca :
and Antonio Sellecchia :
:
v. : No. 2625 C.D. 2015
: Submitted: January 6, 2017
City of Philadelphia, :
Zoning Board of Adjustment :
:
Appeal of: City of Philadelphia :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: May 10, 2017
In this procedurally complex appeal, the City of Philadelphia (City)
asks whether the Court of Common Pleas of Philadelphia County (trial court) erred
in reversing a decision of the City of Philadelphia Zoning Board of Adjustment
(ZBA) that revoked two zoning/use registration permits (permits) issued to
Landowners1 by the Philadelphia Department of Licenses and Inspections (L&I).
The permits authorized the construction of two single-family homes. The ZBA
revoked the permits on the ground that the property at issue was a single zoning lot
rather than two distinct lots; therefore, Landowners could not construct two homes
on the lot. The City contends the trial court erred in reversing the ZBA’s decision
that upheld L&I’s revocation. Further, as a preliminary matter, we consider
whether the trial court properly granted the City’s petition to appeal nunc pro tunc
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Landowners are Emilio DiCicco, Vincenzo Ciocca and Antonio Sellecchia.
(“now for then”). Upon review, we affirm the trial court’s order that granted the
City’s petition to appeal nunc pro tunc to this Court, and we reverse the trial
court’s order on the merits, thereby reinstating the ZBA’s decision.
I. Background
A. L&I/ZBA Proceedings
The ZBA set forth the following factual findings. On August 1, 2014,
Landowners filed two applications for zoning/use registration permits with L&I.
Application 553601 proposed a single-family home for 9613 Evans Street, and
Application 553606 proposed a single-family home for the adjacent parcel at 9615
Evans Street. In each application, Landowners identified the “current use of
building/space” as “vacant lot,” although there was, in fact, an existing single-
family home that spanned the two purported lots. ZBA Op., Finding of Fact (F.F.)
No. 1. L&I issued the requested permits authorizing construction of a single-
family home on each of the parcels identified by Landowners on August 6th and 7th
2014.
Approximately a week later, L&I revoked both permits. In a letter to
Landowners’ counsel, L&I representative Elizabeth Baldwin wrote:
The permit applications were submitted for the erection
of a detached structure for use as a single family dwelling
on each lot. The lots were presented as existing and
separate. While these lots were described separately by
deed and were recently granted separate tax accounts by
the Office of Property Assessment [(OPA)], our [z]oning
records reflect a single lot built upon as a unit. The
zoning record reflects a lot, inclusive of both deeded
properties, with one structure used as a single family
dwelling since at least 1952. The separation of these lots
for zoning purposes requires a permit complying with the
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provisions for lot adjustments outlined in Section14-
304(6) of the Philadelphia Zoning Code [(Zoning Code)].
F.F. No. 3 (quoting letter from Elizabeth Baldwin to Dawn Tancredi, Esq.,
8/15/14) (emphasis added).
Landowners appealed the permit revocations to the ZBA. In their
appeal, Landowners asserted:
The two parcels, 9613 and 9615 Evans Street, are separate
tax parcels that have never been formally consolidated
and are grandfathered as to current requirements for lot
size and street frontage. The zoning permits were
properly issued for the ‘by right’ construction of a single
family home on each parcel. The permits were
improperly revoked by [L&I].
F.F. No. 4 (quoting Application for Appeal, 9/12/14). A hearing on Landowners’
appeal ensued before the ZBA.
The property at issue, which is located at 9613-9615 Evans Street
(combined property), lies in an RSD-2 residential zoning district. In 1952, then-
owners Harry and Marie Keen filed a zoning application with the City for the
proposed construction of a 1½-story, single-family home at the combined property,
which they described as 105 feet wide and 112 feet deep. Hand-drawn plans
attached to the application showed a single, undivided lot with the proposed home
located approximately at its center. The City’s Bureau of Engineering, Surveys
and Zoning issued the permit in August 1952. In 1960, the Keens applied for, and
were granted, a second zoning permit that authorized construction of a dormer on
the previously approved dwelling at the combined property.
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The 1952 application representing the property as a single lot is the
earliest zoning document on record for the property. There were no prior or
subsequent zoning approvals recognizing 9613 and 9615 as separate zoning lots
(with the exception of the revoked permits at issue here).
Applicants purchased the combined property in 2013. It was
conveyed to them under a single deed that included separate legal descriptions for
the two parcels. The deed identified the property, in its entirety, as 9615 Evans
Street. At the time Applicants purchased the combined property, the home
approved in 1952 remained standing on the combined property. The property had
a single postal address and a single tax account number with the OPA. The home
spanning the two parcels was not demolished as of the ZBA’s hearing in December
2014.
At the ZBA hearing, Landowners’ counsel stated that the two parcels
that compose the combined property “became individual and separate back in
1923.” F.F. No. 14. Landowners’ counsel added:
That happened pursuant to a survey, a survey plan of
what was called Chapel Croft Place. This plan was
prepared by a man named Pennock Huey, and that was
part of a 200-lot subdivision and development, and there
is a copy of that survey included in the packet that I
turned in.
Id. (citing ZBA Hr’g, Notes of Testimony (N.T.), 12/17/14, at 4-5). Landowners’
counsel further noted the two parcels comprising the combined property were
separately deeded in 1952, when the original zoning permit for the property was
issued. Landowners’ counsel submitted copies of deeds recorded in 1969 and 2013
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that included both parcels but stated separate legal descriptions for each parcel.
Both the 1969 deed and the 2013 deed (which transferred ownership to
Landowners) identified the combined property by a single address, 9615 Evans
Street.
Landowners’ counsel described 9613 and 9615 Evans Street as having
separate tax account numbers, but she acknowledged those numbers were assigned
recently and a single account number previously covered both parcels.
Landowners’ counsel argued the two parcels created in 1923 were never formally
consolidated and must therefore be treated as individual, nonconforming lots.
Landowners’ counsel stated: “Our Zoning Code tells us how to adjust lot lines, and
no[n]e of the formal requirements were done. And our Zoning Code also identifies
nonconforming lots, and this [case] falls right in line with what a nonconforming
lot is.” F.F. No. 19 (citing N.T. at 33). Landowners’ co-counsel added:
[W]e contend that [the 1952 zoning permit] was illegal
because there was no property line shown in the middle
of the one property that the applicant filed for because
that was an illegal plan. It was a hand sketch. It wasn’t
sealed. It didn’t show an interior property line and no
permit should have been issued for that house.
F.F. No. 20 (citing N.T. at 36).
In support of their argument that 9613 and 9615 Evans Street should
be treated as individual, nonconforming lots, Landowners presented the testimony
of Joseph Beller, Esquire, whom they asked the ZBA to recognize as an expert in
zoning. The City objected to Attorney Beller’s testimony, stating:
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I do not question that [Attorney Beller] has expertise in
the Zoning Code, however, I will object for the record to
this testimony. Clearly, he has no direct knowledge.
He’s not a fact witness. And you could bring ten other
zoning lawyers into [this] room right now and you will
get 12 opinions about this.
F.F. No. 22 (citing N.T. at 37-38). The ZBA allowed Attorney Beller to testify
without formally recognizing him as an expert.
Attorney Beller advised the ZBA that he began practicing zoning law
in 1962. When asked how “the [Zoning Code] [dealt] with consolidation of
separate adjacent properties” at that time, Attorney Beller recalled:
Well, they called it reverse subdivision … And you went
to the zoning section, which in those days was the City
Hall Annex, now a Courtyard Marriott. And it was very
few personnel, but there was a gentleman in charge, who
I remember well, Joseph Rosenberg. You used to present
your fact[s] to him, and he would then suggest, in most
cases, that you bring him a stamped plan showing a
survey stamped by an engineer or some person with a
seal, some professional so that they could then determine
whether you were within the lot lines that were consistent
with the deed and whether you encroached on anybody
else or whether anybody else encroached on you, and of
course, the measurements so you could then comply.
F.F. at 25 (quoting N.T. at 39-40).
As to the zoning application submitted in 1952, Attorney Beller
stated: “None of the legal requirements were met, number one. And number two,
if you look at the application, as I have, it didn’t ask for [consolidation]. I think it
was one of those things that happens. It slipped through somehow and nobody
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checked it.” F.F. No. 26 (quoting N.T. at 51). Attorney Beller opined that L&I
erred in revoking the permits at issue here because “if you looked at the deeds from
1923 on, there were always two lots” and, “[i]f there are two lots, you don’t have
to ask for two lots.” F.F. No. 27 (quoting N.T. at 52). While maintaining that
9613 and 9615 Evans Street never became one zoning lot, Attorney Beller
acknowledged that the City’s “Sanborne” map, which he said “didn’t follow the
deeds” but “basically followed what zoning did,” showed the combined property
“from time immemorial as one lot.” F.F. No. 28 (quoting N.T. at 43, 48-49)
(emphasis added).
For his part, the City’s counsel argued that, “deeded properties and
zoning parcels are not one and the same. They’re not identical, and at times there
can be differences depending on how it was created and how it was presented and
acted on in an application.” F.F. No. 29 (quoting N.T. at 35). The City’s counsel
stated the City’s “position in all these cases, for zoning purposes there’s a zoning
lot, and that’s what they [sic] go b[y]. So when [L&I] is reviewing an application
for zoning, they’re [sic] looking in their records as to what is the zoning lot and
then that’s what they [sic] apply.” F.F. No. 30 (quoting N.T. at 85). The City’s
counsel stated he did not dispute the parcels at issue were or had been separately
deeded, “but if it becomes a single zoning lot historically, then that’s how it is,
unless something happens to change that when [L&I] acts on the zoning
application.” F.F. No. 31 (quoting N.T. at 86).
The City also presented the testimony of Elizabeth Baldwin
(Baldwin), Acting Director of L&I’s Development Division, to testify regarding
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the circumstances of the disputed permit revocation and her Department’s policies
on recognizing zoning lots. Baldwin testified that Landowners’ Counsel called her
in May 2014 to discuss the property. She described the conversation as follows:
[Landowners’ Counsel] called me to basically state his
case, that these are two lots in zoning. I looked up the
file and I said: No. The zoning record indicates a single
lot. You would either have to consolidate the deeds to
comply with the zoning or subdivide in zoning to
conform to the deeds. He disagreed with the position. I
invited him to submit something in writing to me and I
would pass it on to the Law Department, and I didn’t
hear anything more from him.
F.F. No. 33 (quoting N.T. at 71). Baldwin indicated she first learned that permits
were issued for the proposed development when she “received a call from Alice in
Councilman [Brian] O’Neill’s office asking how we issued these permits.” F.F.
No. 34 (quoting N.T. at 71). Until that time, Baldwin was unaware that
Landowners submitted the applications.
After learning of the permit issuance, Baldwin called Landowners’
Counsel and explained she “was going to revoke the permit[s] because this is one
zoning lot.” F.F. No. 35 (quoting N.T. at 74). At Landowners’ Counsel’s request,
Baldwin waited to hear from Landowners’ Counsel before taking further action.
After receiving a letter from Landowners’ Counsel that “didn’t really include
anything she didn’t already know,” Baldwin revoked the permits. Id. Describing
the sequence of events, Baldwin stated: “The last permit was issued on August 7th.
I called [Landowners’ Counsel] either August 8th or August 11th. We met on
August 13th and I revoked the [p]ermits on August 15th.” F.F. No. 36 (quoting
N.T. at 74-75).
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When questioned regarding her agency’s procedures for recognizing
zoning lots, Baldwin stated, “prior to the adoption of this [Zoning] Code in 2012
there was no correlation between a deeded lot and a zoning record in the Zoning
Code.” F.F. No. 37 (quoting N.T. at 75-76). Baldwin stated, in practice, however,
her office required conformance between zoning lots and deeds at least since she
began working there in 2006. Baldwin added that she did not know how things
were handled in 1952, but based on her review of historic records, discrepancies
between deeds and zoning lots were “common.” F.F. No. 38 (quoting N.T. at 76).
As to the property at issue here, Baldwin testified it was treated as one
lot because “it was presented as one lot for zoning purposes when the house was
constructed, and it was evaluated as one lot when the building was built.” F.F. No.
39 (quoting N.T. at 76). When questioned by Landowners’ Counsel as to when the
two deeded parcels were consolidated, Baldwin testified: “I can’t speak to the
deeded descriptions, because they’re still identified as two separate deeded lots.
For zoning purposes, they were always presented as one zoning lot.” F.F. No. 40
(N.T. at 83).
In addition to arguing that the parcels at issue were separate,
nonconforming zoning lots, Landowners’ Counsel stated, as an independent
ground for appeal, that the revoked permits should be deemed valid under a vested
rights theory. In support, Landowners’ Counsel noted his clients “paid for building
plans and also lawyers’ fees.” F.F. No. 41 (quoting N.T. at 97-98).
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The ZBA also set forth the following pertinent conclusions of law. In
challenges such as this, there is a presumption that municipal officers perform their
duties properly and take the steps necessary to give validity to their official acts.
Mamallis v. Borough of Millbourne, 164 A.2d 209 (Pa. 1960); Appeal of Gilbert,
383 A.2d 556 (Pa. Cmwlth. 1978); Twp. of Haverford v. Spica, 328 A.2d 878 (Pa.
Cmwlth. 1974). This presumption of official propriety is conclusive if not rebutted
by affirmative evidence of irregularity. Mamallis.
In addition, where a challenge involves interpretation of the Zoning
Code, the ZBA must give deference to the agency charged with administering the
Zoning Code. Turchi v. Phila. Bd. of License & Review, 20 A.3d 586 (Pa.
Cmwlth. 2011) (agency’s interpretation of statute it is charged to administer is
entitled to deference absent fraud, bad faith, abuse of discretion, or clearly arbitrary
action).
Here, the ZBA determined Landowners did not establish that L&I
erred in revoking the permits. To that end, the record established that L&I
recognized the property as a single zoning lot since at least 1952. A zoning
application submitted that year included a dimensioned site plan depicting the
property as a single, unified parcel. A permit issued pursuant to that application
authorized construction of a single-family home that spanned the parcels that
Landowners now characterize as individual lots. Additionally, the City’s Sanborne
map identifies the property as one zoning lot--and has done so, according to
Landowners’ own witness, Attorney Beller, “for time immemorial.” ZBA Op.,
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Concl. of Law No. 7. Until 2014, the property had a single postal address and a
single tax account number.
According to L&I’s representative, Baldwin, L&I determined the
property was a single zoning lot based on prior zoning applications/permits
recognizing it as such. The ZBA found Baldwin’s testimony credible and
persuasive, and it found the L&I procedures she described to be reasonable and
consistent with applicable law. By contrast, the ZBA determined that Landowners’
arguments were unsupported by either factual evidence or applicable law.
In particular, Landowners asserted, “in 1952, the established protocol
for consolidation of parcels included the preparation of a survey clearly showing
proposed extinguishment of existing property lines and a new legal description,
approval of [the Philadelphia City Planning Commission (PCPC)], the filing of a
zoning application requesting consolidation, obtaining a permit for consolidation
and recording a deed of consolidation.” ZBA Op., Concl. of Law No. 11 (citing
Landowners’ Memorandum to ZBA, 12/17/14). The ZBA determined
Landowners’ representations regarding “established protocol,” were not supported
by reference to Zoning Code provisions in force during the relevant time period or
by any evidence. Id.In addition, the ZBA found Attorney Beller’s testimony regarding lot
consolidation requirements to be unpersuasive and inapposite. More particularly,
Attorney Beller, who began practicing 10 years after issuance of the 1952 permit
recognizing the combined property as a single lot, offered anecdotal evidence
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recalling that in 1962 the L&I employee who handled lot consolidation
applications would “suggest, in most cases, that you bring him a stamped plan
showing a survey stamped by an engineer or some person with a seal.” Concl. of
Law No. 12. However, Attorney Beller did not identify any Zoning Code
provision or regulation that mandated conformity between zoning lots and deeded
lots or that required submission of a professionally prepared survey plan in 1952.
The ZBA also found the cases cited by Landowners, this Court’s
decision in Southdown Inc., v. Jackson Township Zoning Hearing Board, 809 A.2d
1059 (Pa. Cmwlth. 2002) and the trial court’s decision in Batchelder v.
Philadelphia Zoning Board of Adjustment, No. 130702408 (C.P. Phila. July 15,
2014), 2014 WL 4412652, aff’d, (Pa. Cmwlth., No. 945 C.D. 2014, filed June 5,
2015), 2015 WL 5446668 (unreported), were inapposite.
In addition, the ZBA stated, in suggesting the combined property was
actually two separate lots, Landowners were effectively challenging the 1952
permit approving the parcels as a single lot, which they could not do more than 60
years later.
Finally, the ZBA rejected Landowners’ vested rights argument on the
grounds that Landowners: (1) were advised prior to submitting their permit
applications that the property at issue would be treated as a single zoning lot; (2)
were informed that the permits would be revoked within days of their issuance;
and, (3) were notified of the revocations approximately a week later—long prior to
the expiration of the 30-day appeal period. Additionally, the ZBA stated, in their
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permit applications, Landowners did not disclose the existence of the single-family
home that spanned the combined property; rather, they described the combined
property as “vacant.” Concl. of Law No. 20. As a result, the ZBA stated, in
addition to the fact that the timing precluded a finding of vested rights, it was
arguable that Landowners acted in good faith.
For all these reasons, the ZBA denied Landowners’ appeal of L&I’s
revocation of the permits. Landowners appealed to the trial court.
B. Trial Court Proceedings
Without taking additional evidence, and based solely on the brief and
oral argument of Landowners, the trial court reversed the ZBA’s decision on
September 2, 2015.
Thereafter, Philadelphia City Councilman Brian J. O’Neill filed a
praecipe to intervene and a motion to open the trial court’s order reversing the
ZBA’s decision. He averred he did not receive service or notice of the appeal.
Shortly thereafter, Councilman O’Neill withdrew his motion.
On December 8, 2015, the City filed a notice of appeal to this Court.
Although the City did not file a separate motion to appeal nunc pro tunc, in its
notice of appeal, the City argued it was not aware of Landowners’ appeal to the
trial court because the trial court’s case management order listed the incorrect
address for the City’s solicitor, and all service was made at an improper address.
For this reason, the City averred, it did not participate in Landowners’ appeal of
the ZBA’s decision before the trial court. The City also alleged that it was
13
unaware of Landowners’ appeal until it was notified by Councilman O’Neill’s
office on approximately November 20, 2015.
Ultimately, a single judge of this Court remanded this matter to the
trial court for disposition of the City’s petition to appeal nunc pro tunc, directing
the trial court to transmit the original record and its order disposing of the City’s
petition to appeal nunc pro tunc within 60 days.
On remand, the trial court granted the City’s petition, allowing it to
appeal nunc pro tunc to this Court. In a subsequently filed opinion in support of its
order, the trial court explained:
In the instant case, this court heard oral argument
and had the benefit of an affidavit from [the City’s]
counsel that the correct address of [the City] is 1515
Arch Street, 16th Floor, Philadelphia, Pennsylvania, and
that the address of 1401 JFK Blvd., 5th Floor, was
incorrect, and that [the City’s] counsel had informed the
Office of Judicial Records of this error on March 20,
2015. Further, [the City’s] counsel argued that he had
participated in the hearings before the [ZBA] below and
that [Landowners’] counsel, an experienced zoning
attorney, should have been aware that the address for
service was incorrect. This court, as a result, granted [the
City’s] petition to appeal nunc pro tunc as [the City] had
demonstrated that there was a breakdown of this court’s
operations, a non-negligent reason for the fact that it had
not timely appealed and had not participated in the case.
This court cannot address any other alleged errors
raised on appeal as, at the time it made its decision, [the
City] had not filed a responsive brief or participated in
oral argument and they were not part of this court’s
consideration at that time. Thus, this matter should be
remanded for further proceedings including a new
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briefing schedule and oral argument on the merits of the
appeal.
Tr. Ct., Slip Op., 5/27/16, at 4-5. This matter is now before us for disposition.
II. Discussion
A. Trial Court’s Grant of City’s Nunc Pro Tunc Appeal
1. Contentions
As an initial matter, Landowners challenge the trial court’s grant of
the City’s request to appeal the trial court’s order to this Court nunc pro tunc.
Landowners contend the City was properly served with Landowners’ appeal of the
ZBA’s decision at 1401 JFK Boulevard, 5th Floor, Philadelphia, Pennsylvania,
19102, in accordance with the case management order where, in fact, the City Law
Department has an office. Landowners assert there is no legal requirement that the
City be served at 1515 Arch Street, 16th Floor. Even if there was a mistake on the
case management order as the City suggests, Landowners argue, the City Law
Department has an office at the address listed in the case management order, and
the City Law Department accepted service at this address. Landowners maintain
that, aside from the proof of service attached to the appeal, copies of the proof of
mailing from the post office were submitted to the trial court, along with a printout
that showed the mail was delivered return receipt requested and not returned.
In addition, Landowners contend, Attorney Sharon Suleta entered her
appearance on the ZBA’s behalf as identified on the docket; thus, the City was
aware of the appeal. Landowners argue the City does not routinely enter an
appearance or participate in appeals from the ZBA, so it was not unusual that the
City did not participate before the trial court here.
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Further, Landowners assert, the trial court entered the order at issue
here on September 2, 2015. As such, the appeal period expired on October 2,
2015. Landowners point out that the City indicated that Councilman Brian O’Neill
made the City aware of this appeal on November 20, 2015. Landowners contend
there is no justifiable reason for the City’s delay in filing an appeal nunc pro tunc
on December 8, 2015, more than two months after expiration of the appeal
deadline, and more than two weeks after purportedly becoming aware of the order.
Landowners assert a change in address for convenience purposes does not equate
to an administrative breakdown.
In response, the City argues that a foundational precept of due process
is notice and an opportunity to be heard. The City asserts that when Landowners
filed their appeal from the ZBA to the trial court, they were obligated to provide
notice to the City. The City contends Landowners failed to do so, in part, because
of a breakdown in the administrative process in which the trial court inadvertently
listed an incorrect address. The City maintains that Landowners’ Counsel,
experienced zoning attorneys who appear often before the ZBA, also failed to
provide notice to the City’s Law Department at its long-known location for service,
and they failed to serve the City’s counsel based on his entry of appearance form
completed at the ZBA hearing as the trial court’s case management order required.
The City asserts that its failure to receive notice of Landowners’ appeal was not
caused by its own negligence, but rather the actions of Landowners and an
administrative breakdown. The City argues it was, therefore, appropriate to permit
this appeal nunc pro tunc in order for the City to have an opportunity to be heard.
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For his part, Councilman O’Neill, who filed an amicus curiae brief,2
asserts the trial court did not abuse its discretion in granting a nunc pro tunc appeal
where, as here, there was an administrative breakdown. In particular, Councilman
O’Neill argues there was a breakdown within the administration of the trial court.
He contends that, after Landowners appealed the ZBA’s decision, the trial court
issued a case management order, which for a period of several weeks, set forth the
incorrect address on which to serve the City’s Law Department. As a result of this
error by the trial court administration, Councilman O’Neill maintains, the City did
not receive the notice of appeal, was unaware of the briefing schedule and date of
oral argument and did not participate in the trial court proceedings. Councilman
O’Neill asserts his office learned that the trial court granted Landowners’ appeal
only after receiving reports from neighbors of the combined property. He contends
his office then notified the City, which promptly filed a notice of appeal. As such,
Councilman O’Neill argues, the trial court did not abuse its discretion in granting a
nunc pro tunc appeal in favor of the City.
2. Analysis
Fundamentally, due process affords a party notice and an opportunity
to be heard. Weaver v. Franklin Cnty., 918 A.2d 194 (Pa. Cmwlth. 2007). “This
right to be heard has little reality or worth unless one is informed that the matter is
pending and can choose for himself whether to appear or default, acquiesce or
contest.” Mullane v. Cent. Hanover Trust Co., 339 U.S. 306, 314 (1950). “An
elementary and fundamental requirement of due process in any proceeding which
2
This Court denied Councilman O’Neill’s petition to intervene, without prejudice to file
a brief as amicus curiae.
17
is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Id.Appeal periods are jurisdictional and may not be extended as a matter
of grace or mere indulgence; otherwise, there would be no finality to judicial
action. City of Phila. v. Tirrill, 906 A.2d 663 (Pa. Cmwlth. 2006) (en banc).
Statutory appeal periods evidence a legislative determination that the finality of
court adjudications must be promoted by limiting the time within which they can
be questioned on appeal. Id. Thus, an appeal filed one day after the expiration of
the statutory appeal period must be dismissed as untimely. Id.Under extraordinary circumstances, however, a court may extend the
appeal period by granting equitable relief in the form of a nunc pro tunc appeal.
Id. Traditionally, extensions of time for filing an appeal were limited to matters
involving fraud or a breakdown in the court’s operations. Id. In Bass v.
Commonwealth, 401 A.2d 1133 (Pa. 1979), our Supreme Court expanded the
limited exceptions permitting this relief where non-negligent circumstances
relating to either the appellant or the appellant’s counsel caused the untimely
appeal. Additionally, an appellant seeking permission to file a nunc pro tunc
appeal must proceed with reasonable diligence once he knows of the necessity to
take action. Tirrill.
Here, the trial court determined the City was entitled to a nunc pro
tunc appeal of the trial court’s order reversing the ZBA’s decision. In particular,
after this Court’s remand for consideration of the City’s petition to appeal nunc pro
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tunc, the trial court heard oral argument and received an affidavit from the City’s
counsel. Ultimately, the trial court granted the City’s petition to appeal nunc pro
tunc based on its determination that Landowners’ appeal of the ZBA’s decision
and the trial court’s case management order were not served at the City’s correct
address; as a result, the City did not have an opportunity to participate in the
proceedings on Landowners’ appeal before the trial court. No error or abuse of
discretion is apparent in this determination.
More specifically, our review of the record reveals that Landowners’
notice of appeal of the ZBA’s decision to the trial court was served at 1401 JFK
Boulevard, 5th Floor, rather than the City Law Department’s correct address, 1515
Arch Street, 16th Floor. Certified Record (C.R.), Item #1 (Notice of Appeal).
Further, the trial court’s case management order was sent to 1401 JFK Boulevard,
5th Floor, rather than the City Law Department’s correct address, 1515 Arch Street,
16th Floor. C.R., Affidavit in Support of Petition to Appeal Nunc Pro Tunc
submitted by Kelly Diffily, Esq., Deputy City Solicitor, City of Philadelphia Law
Department; Tr. Ct. Hr’g, Notes of Testimony, 3/17/16, at 6-8.
In addition, at the ZBA hearing, the City’s Counsel completed an
entry of appearance form that correctly identified the City’s address as 1515 Arch
Street. C.R., Item #2, (ZBA “Appearance Statement” completed by Andrew Ross,
Esq., on behalf of the City). The trial court’s case management order required that
a copy of that order be served on: “Any person or entity that entered an appearance
before the [ZBA] (check the [ZBA’s] case file for names).” C.R., Item #6 at Ex. E
19
(emphasis added). Nevertheless, the case management order was not served on the
City at the correct address.
As a result, the City was unaware of Landowners’ appeal of the
ZBA’s decision and the trial court’s case management order, and it did not
participate in the proceedings on Landowners’ appeal before the trial court. The
trial court determined that the failure to serve the City with the notice of appeal or
the case management order at the correct address amounted to a breakdown in the
court’s operations that warranted nunc pro tunc relief. We discern no error or
abuse of discretion in that determination. See H.D. v. Pa. Dep’t of Pub. Welfare,
751 A.2d 1216, 1220 (Pa. Cmwlth. 2000) (“It has … been held that the
administrative officials’ failure to properly send a notice constitutes negligence,
which amounts to a breakdown in the administrative operation.”) (citing Nixon v.
Nixon, 198 A. 154 (Pa. 1938); Moore v. Pa. Board of Prob. & Parole, 503 A.2d
1099 (Pa. Cmwlth. 1986)).
Moreover, while Landowners argue that service on the ZBA was
sufficient to constitute service on the City, it is clear that the City and the ZBA are
distinct entities with different addresses.
And, although Landowners assert the City did not file its nunc pro
tunc appeal within a reasonable period after learning of the entry of the trial court’s
order, our review of the hearing on the City’s petition to appeal nunc pro tunc
before the trial court reveals that Landowners did not raise this issue before the
trial court. Thus, it is not surprising that the trial court did not address this issue.
20
As such, this issue is waived. See Pa. R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).3
For these reasons, we discern no error or abuse of discretion in the
trial court’s decision that granted the City’s nunc pro tunc appeal to this Court.
Further, because the trial court did not receive additional evidence on the merits of
Landowners’ appeal, this Court’s review is limited to determining whether the
ZBA committed an abuse of discretion or an error of law. Soc’y Hill Civic Ass’n
v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012). As such,
and in the interests of judicial economy, rather than remand this matter on the
merits to the trial court, we will review the ZBA’s decision to determine whether it
committed an abuse of discretion or error of law.
B. Merits
1. Contentions
As to the merits, the City contends, as it asserted before the ZBA, its
argument is based on the Zoning Code and its application by the agency charged
with interpreting its provisions. The City contends that as Baldwin stated in her
letter to Landowners, and in her testimony, the combined property was a single
3
In any event, even if not waived, in its petition to appeal nunc pro tunc, the City averred
it learned of the trial court’s September 2, 2015 order reversing the ZBA’s decision on
November 20, 2015, when it was notified by Councilman O’Neill’s office. Certified Record,
City of Philadelphia’s Petition for Nunc Pro Tunc Appeal to Commonwealth Court at ¶9. Upon
learning of the trial court’s order, the City alleged, its counsel reviewed the record to determine
what occurred and why the City did not receive proper notice. Id. The City discovered the use
of the incorrect address in the trial court’s case management order. Id. And, it filed its appeal
within 18 days of when it learned of the entry of the trial court’s order from Councilman
O’Neill’s office. Id. Under these circumstances, it appears the City acted with reasonable
diligence in seeking an appeal nunc pro tunc.
21
zoning lot in L&I’s records and had been since at least 1952. Though including
two legal descriptions, the City maintains, the combined property was conveyed
under one deed and treated as one property. The prior owners applied for a single
permit to construct a single home on the combined property, which remains in
place (despite Landowners’ description on the permit applications as two vacant
lots). The City further argues that application of the Zoning Code to the combined
property by the City officials charged with interpreting its provisions is entitled to
deference, and may not be reversed unless clearly erroneous. Thus, the City
maintains, the ZBA properly upheld L&I’s decision revoking the permits here
which permitted the construction of two single-family homes on the combined
property.
For his part, Councilman O’Neill asserts this case has a “long and
devious history.” Amicus Curiae Br. on Behalf of the Honorable Brian J. O’Neill
at 16. He argues that in 2013, Landowners sought to demolish a single-family
home located in the center of the lot located at 9615 Evans Street. In its place,
Landowners proposed to split the lot and construct two homes. Councilman
O’Neill contends the property at 9615 Evans Street is 100 feet wide; the two
proposed homes would be on 50-foot wide lots. As such, variance relief would be
required.
Councilman O’Neill further asserts Landowners initially applied for a
permit to subdivide the property, and L&I denied the permit. He maintains
Landowners appealed to the ZBA, seeking variances to permit two 50-foot wide
lots. When Councilman O’Neill’s representative and several neighbors appeared at
22
the hearing to oppose the variances, Landowners’ Counsel announced that the
appeal would be withdrawn. Landowners then formally withdrew the appeal. By
withdrawing the appeal, Councilman O’Neill contends, Landowners conceded
their requested variances would be denied on the merits. He asserts that
Landowners are now trying to circumvent the zoning process.
First, Councilman O’Neill argues, Landowners contacted the OPA
and obtained separate tax accounts for 9615 Evans Street and a newly created
address of 9613 Evans Street. He contends the issuance of a new tax account gave
the illusion of a subdivision; however, the property was never subdivided through
the legal process.
Councilman O’Neill further argues that on separate days, Landowners
filed separate applications for separate building permits with L&I for 9613 and
9615 Evans Street, which were initially granted. Councilman O’Neill asserts he
inquired about the permit issuance with L&I, which, after consulting with the Law
Department, revoked the permits. Landowners then filed a new appeal with the
ZBA. Instead of seeking a variance, they sought the equivalent of a declaratory
judgment that they were entitled to build two homes as a matter of right. Because
there was no evidence in the City’s records that the property was ever subdivided,
Councilman O’Neill contends, Landowners submitted a 1923 survey plan by a
developer to support their allegation of separate lots. Because this survey plan
predated the City’s first zoning code enacted in 1933, Councilman O’Neill points
out, Landowners suggested the property was a nonconforming lot. Under this
theory, Landowners erroneously suggested they could demolish the existing home
23
and build by right. In support, Landowners presented the testimony of Beller,
which the ZBA rejected in favor of Baldwin’s testimony.
In short, Councilman O’Neill argues, the ZBA did not believe the
facts as alleged by Landowners. Further, the ZBA determined as a matter of law
that the procedures L&I utilized were reasonable and consistent with the law.
Councilman O’Neill asserts there are no factual bases to support any legal
determinations other than those reached by the ZBA. As such, he contends, this
Court should reverse the trial court’s merits order and affirm the ZBA’s decision.
In response, Landowners incorporate by reference their brief to the
trial court. In particular, they assert the City improperly relied on a 1952
handwritten, unofficial site plan in L&I’s files that showed the two parcels as one
parcel without an approved survey. Landowners further maintain the City did not
show proper extinguishment of the existing property line between 9613 and 9615
Evans Street. Landowners argue the City wrongly asserted the two separate
properties achieved legal consolidation status, and, despite no legal consolidation
before or after 1952, a subdivision of the two lots was required to effectuate the
plans Landowners submitted with their zoning applications. Landowners assert the
City made this argument despite the fact that in 1952 the applicant acquired two
separate lots by separate deeds.
Landowners maintain the decisions of L&I and the ZBA were not
based on any applicable Zoning Code provision. Despite the fact that none of the
required formalities for consolidation occurred for the properties, Landowners
24
contend, the City improperly treated the properties as a consolidated lot, and it
improperly revoked the legally issued zoning permits.
In reply, the City argues the most salient finding by the ZBA is that
the 1952 zoning permit application “representing the [p]roperty as a single lot is
the earliest zoning document on record for the [p]roperty.” ZBA Op., Finding of
Fact (F.F.) No. 10. Indeed, the City asserts, Landowners omit the most important
facts here, which show the manifest intent of the prior owners to treat the property
as unified and single for zoning purposes. First, in 1952, then-owners Harry and
Marie Keen filed a single zoning application to construct a single home on the
property. The plan submitted with the application showed “a single, undivided lot
with the proposed home located approximately at its center.” F.F. No. 7.
Additionally, the Keens built that home across the undivided lot, and it remained in
place until and after the sale of the property to Landowners in 2013. R.R. at 173a-
187a.
In applying for the permits here, the City argues, Landowners falsely,
though tellingly, described the property as “vacant,” although the home approved
in 1952 remains standing – straddling across the lots – to this day. Id. The City
further argues that filing for separate tax parcel numbers, which Landowners
requested just as they were applying for zoning permits, has no bearing on this
matter. The City asserts the property was a single tax parcel for decades. More
importantly, a tax parcel is not synonymous with a zoning lot, and obtaining a
second tax parcel number does not divide or change the lot for zoning purposes.
25
Further, the City maintains, Landowners discuss the law based on the
assumption that the property has always been two separate, individual zoning lots.
However, the City argues, that premise is incorrect. To that end, L&I’s zoning
records, and the ZBA’s factual findings, correctly determined the property is a
single zoning lot. In any event, the City contends, the prior owners here took
overt, unequivocal physical steps that manifested their intent to integrate the
adjoining lots and build on the property as a unit.
2. Analysis
As fact-finder, the ZBA is the sole judge of the credibility and weight
of the evidence presented. Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing
Bd., 83 A.3d 488 (Pa. Cmwlth. 2014). As a result, the ZBA is free to reject even
uncontradicted evidence that it finds lacking in credibility. Id. Our review of the
ZBA’s factual findings is limited to determining whether the ZBA’s findings of
fact are supported by substantial evidence. Id.Substantial evidence is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion. Oasis v. Zoning Hearing Bd. of
S. Annville Twp., 94 A.3d 457 (Pa. Cmwlth. 2014). When performing a
substantial evidence analysis, courts must view the evidence in the light most
favorable to the party who prevailed before the fact-finder. In re McGlynn, 974
A.2d 525 (Pa. Cmwlth. 2009). It is irrelevant whether the record contains evidence
to support findings other than those made by the fact finder; the critical inquiry is
whether there is evidence to support the findings actually made. Keslosky v. Old
Forge Civil Serv. Comm’n, 73 A.3d 665 (Pa. Cmwlth. 2013). If there is, an
appellate court may not disturb the findings. Id.26
Here, in disposing of the issues raised in Landowners’ appeal of the
permit revocations, the ZBA made the following pertinent findings of fact and
conclusions of law (with emphasis added):
FINDINGS OF FACT
1. On approximately August 1, 2014, [Landowners]
submitted two applications for zoning/use registration
permits to L&I. Application 553601 proposed a single
family dwelling for 9613 Evans Street; application
553606 proposed a single family dwelling for the
adjacent parcel at 9615 Evans Street. In each application,
[Landowners] identified the ‘current use of
building/space’ as ‘vacant lot,’ although there was, in
fact, an existing single family home spanning the two
lots. See Application for Zoning/Use Registration
Permit[.]
2. L&I issued the requested permits authorizing
construction of a single family home on each of the
identified parcels on August 6, 2014, (9613 Evans Street)
and August 7, 2014 (9615 Evans Street).
3. L&I revoked both permits on August 15, 2014. In a
letter to [Landowners] attorney, L&I Representative
Elizabeth Baldwin wrote:
The permit applications were submitted for
the erection of a detached structure for use as a
single family dwelling on each lot. The lots were
presented as existing and separate. While these lots
were described separately by deed and were
recently granted separate tax accounts by the
[OPA], our [z]oning records reflect a single lot
built upon as a unit. The zoning record reflects a
lot, inclusive of both deeded properties, with one
structure used as a single family dwelling since at
least 1952.
The separation of these lots for zoning
purposes requires a permit complying with the
27
provisions for lot adjustments outlined in
Section14-304(6) of the [Zoning Code].
See Letter from Elizabeth Baldwin to Dawn Tancredi,
Esquire, dated 8/15/2014.
****
7. In 1952, then property owners Harry and Marie Keen
filed a zoning application with the City for the proposed
construction of a 1 ½ story, single family dwelling at the
combined property, which they described as being 105
feet wide and 112 feet deep. Hand drawn plans attached
to the application showed a single, undivided lot with the
proposed home located approximately at its center. See
Application 53371B.
8. The requested permit was issued by the City’s ‘Bureau
of Engineering, Surveys and Zoning’ on August 12,
1952. See Application 53371B.
9. In 1960, the Keens applied for, and were granted, a
second zoning permit authorizing erection of a dormer on
the previously approved dwelling at 9615 Evans Street
(the combined property[)]. [See] Application No.
77111F.
10. The 1952 application representing the Property as a
single lot is the earliest zoning document on record for
the Property. There were no prior or subsequent zoning
approvals recognizing 9613 and 9615 as separate zoning
lots (excepting the revoked permits at issue here).
11. [Landowners] purchased the combined property in
2013. It was conveyed to them under a single deed that
included separate legal descriptions for the two parcels.
The deed identified the Property, in its entirety, as 9615
Evans Street. See Deed, dated 4/24/2013, at Applicant's
Exhibit 7.
12. At the point [Landowners] purchased the combined
property, the home approved in 1952 remained standing
28
at the site. The Property had a single postal address and a
single tax account number with the [OPA]. See Deed at
Ex. 7; 12/17/2014 N.T. at 11-13, 20.
13. The home spanning the two parcels comprising
[9615] Evans Street had not been demolished as of the
December 17, 2014, zoning hearing. See Date stamped
photos of Property.
****
32. [The City] called Elizabeth Baldwin, Acting Director
of L&I’s Development Division, to testify regarding the
circumstances of the disputed permit revocation and her
Department’[s] policies on recognizing zoning lots.
33. Ms. Baldwin testified that [Landowners’] attorney,
Mr. Schwartz, had called her in May 2014 to discuss the
Property. She described the conversation as follows:
Mr. Schwartz called me to basically state his case,
that these are two lots in zoning. I looked up the
file and I said: No. The zoning record indicates a
single lot. You would either have to consolidate
the deeds to comply with the zoning or subdivide
in zoning to conform to the deeds. He disagreed
with the position. I invited him to submit
something in writing to me and I would pass it on
to the Law Department, and I didn’t hear anything
more from him.
12/17/2014 N.T. at 71.
34. Ms. Baldwin said she first learned permits had been
issued for the proposed development when she ‘received
a call from Alice in Councilman O’Neill's office asking
how we issued these permits.’ Until that point, she was
unaware that applications had been submitted.
12/17/2014 N.T. at 71.
35. After learning of the permit issuance, Ms. Baldwin
called [Landowners’ Counsel] and explained that she
‘was going to revoke the permit because this is one
29
zoning lot.’ She then, at [Landowners’ Counsel’s]
request, waited to hear from [Landowners’ Counsel]
before taking further action. After receiving a letter from
him that ‘didn't really include anything she didn’t already
know,’ Ms. Baldwin revoked the permits. 12/17/2014
N.T. at 74.
36. Describing the sequence of events, Ms. Baldwin said:
The last permit was issued on August 7th. I called
[Landowners’ Counsel] either August 8th or August 11th.
We met on August 13th and I revoked the Permits on
August 15th.
12/17/2014 N.T. at 74-75.
CONCLUSIONS OF LAW
1. [Landowners] contend that [L&I] erred in revoking
individual permits issued for 9613 and 9615 Evans Street
authorizing the construction of one single family
dwelling on each parcel.
****
6. [Landowners] here have not established that L&I erred
in revoking the disputed permits.
7. The evidence of record establishes that [L&I] has
recognized the Property as a single zoning lot since at
least 1952. A zoning application submitted that year
included a dimensioned site plan depicting the Property
as a single, unified parcel. A permit issued pursuant to
that application authorized construction of a single family
dwelling spanning the parcels [Landowners] characterize
as individual lots. Additionally, the City’s [Sanborne]
map identifies the Property as one zoning lot -- and has
done so, according to [Landowners’] witness, Mr. Beller,
‘for time immemorial.’ Until 2014, the Property had a
single postal address and a single tax account number.
8. According to L&I representative Elizabeth Baldwin,
[L&I] determined that the Property was a single zoning
30
lot based on prior zoning applications/permits
recognizing it as such.
9. The [ZBA] found Ms. Baldwin’s testimony to be
credible and persuasive and the [L&I] procedures she
described to be reasonable and consistent with applicable
law.
10. By contrast, the [ZBA] finds [Landowners’]
arguments to be unsupported by either factual evidence
or applicable law.
11. [Landowners] contend that ‘in 1952, the established
protocol for consolidation of parcels included the
preparation of a survey clearly showing proposed
extinguishment of existing property lines and a new legal
description, approval of PCPC, the filing of a zoning
application requesting consolidation, obtaining a permit
for consolidation and recording a deed of consolidation.’
Applicant's Memorandum to ZBA, dated 12/17/2014, at
p. 8. Their representations regarding ‘established
protocol,’ are not, however, supported by reference to
[Zoning] Code provisions in force during the relevant
time period or, indeed, by any evidence whatsoever.
12. The [ZBA] finds Mr. Beller’s testimony regarding lot
consolidation requirements to be unpersuasive and
inapposite. Mr. Beller, who began practicing ten years
after issuance of the 1952 permit recognizing the
combined property as a single lot, offered anecdotal
evidence recalling that in 1962 the L&I employee who
handled lot consolidation applications would ‘suggest, in
most cases, that you bring him a stamped plan showing a
survey stamped by an engineer or some person with a
seal.’ Mr. Beller did not identify any [Zoning] [C]ode
provision or regulation that mandated conformity
between zoning lots and deeded lots or required
submission of a professionally prepared survey plan in
1952.
13. The [ZBA] likewise finds the cases cited by
[Landowners] to be inapposite.
31
14. In Southdown Inc., v. Jackson Township Zoning
Hearing Board, 809 A.2d 1059 (Pa. Cmwlth. 2002), the
owner of a property used as a limestone quarrying
business since 1907 argued that it should be permitted to
expand the nonconforming use onto two adjacent parcels
that had been ‘used for mining purposes for years.’ In
rejecting the property owner’s argument, the court noted
that the adjacent parcels, in addition to being separately
deeded, had different zoning classifications and had been
acquired in separate transactions that had not occurred
until 1995. The court additionally relied upon a
provision of the Jackson Township Zoning Ordinance
that defined a lot as ‘a designated parcel, tract, or area of
land established by a plot or otherwise as permitted by
law and to be used, developed or built upon as a unit.’
15. The circumstances at issue here are distinguishable
from those presented in Southdown in the respects:
a. The parcels at issue here were acquired in a
single transaction both by the existing owners and
the prior owners;
b. The parcels at issue here were recognized and
approved by L&I as a single zoning lot to be
developed as a unit … as far back as 1952; and
c. The [Zoning Code] defines a ‘lot’ as ‘a parcel of
land consisting of a horizontal plane bounded by
vertical planes that comprise its front, side, and
rear lot lines, and that is intended or designed to be
used, developed or built upon as a unit.’ [Zoning]
Code at §14-203 (169). This differs significantly
from the Jackson Township Ordinance definition
examined in [Southdown]. Applicants have no[t]
presented evidence showing a more restrictive
definition to have been in effect in Philadelphia in
1952.
16. The second case relied on by [Landowners],
[Batchelder], is likewise distinguishable. There, the
Court of Common Pleas rejected a neighbor’s contention
that adjacent parcels had merged through common usage
32
and could no longer be treated as separate lots for zoning
purposes.
17. The adjacent parcels the neighbors in [Batchelder]
characterized as a single, merged lot had previously been
recognized as individual lots for zoning purposes. The
court, in rejecting the neighbors’ merger argument,
therefore found the properties’ historic zoning approvals
to be determinative of what constituted a lot. Here, the
historic zoning approvals – i.e[.], the 1952 and 1960
permits – recognize the two parcels at issue as a single
zoning lot. [Landowners] have presented no evidence of
the parcels having been approved as separate lots in any
prior or subsequent zoning permit, save for the revoked
at issue here. The [Batchelder] decision therefore
supports a finding that [9613] and [9615] Evans [Street]
are a single, unified zoning and that [L&I] acted properly
in relying upon the historic zoning approvals.
18. With regard to the lot issue, the [ZBA] additionally
notes that [Landowners], suggesting that [9613] and
[9615] Evans [Street] are separate lots, are effectively
challenging the 1952 permit approving the parcels as a
single zoning lot. At the zoning hearing, both Mr. Beller
and Mr. Schwartz, argued that the 1952 permit should not
have been issued. Putting aside the merits of their
argument, the time for appealing the 1952 permit has
long since passed. [Landowners’] argument must
therefore fail even if they are right in contending that
[L&I] failed to follow ‘established protocol’ in issuing
the 1952 permit.
19. The [ZBA] finally rejects [Landowners’] ‘vested
rights’ argument.’
20. [Landowners] here (1) were advised prior to
submitting their applications that the parcels at issue
would be treated as a single zoning lot; (2) were
informed that the permits would be revoked within days
of their issuance; and (3) were notified of the revocation
approximately one week later - long prior to expiration of
the thirty day appeal period. [Landowners] additionally
failed to disclose in the submitted applications that an
33
existing single family home spanned the two parcels,
instead describing the parcels as ‘vacant.’ As a result, in
addition to the timing issues precluding a finding of
vested rights, it is arguable that [Landowners] [acted in]
good faith.
F.F. Nos. 1-3, 7-13, 32-36; Concls. of Law Nos. 1, 6-20. Our review of the record
discloses ample support for the ZBA’s findings. C.R., Applications for
Zoning/Use Registration Permit Nos. 553601, 553606; Zoning/Use Permit Nos.
553601, 553606; Permit Revocation Letter 8/15/14 (Baldwin to Tancredi); Deed
dated 4/24/13, N.T. at 11-13, 20-26, 39, 43, 71, 74-79, 82-83; R.R. at 173a-187a,
189a-190a. As such, we may not disturb them. Keslosky.
In turn, these findings support the ZBA’s ultimate determination that
in 1952 Landowners’ predecessors applied for and received zoning approval to
construct a single-family home on the combined property in a location that
straddles what Landowners now claim is the line that divides the combined
property. Indeed, when Landowners purchased the combined property in 2013, it
was conveyed to them under a single deed that identified the combined property, in
its entirety, as 9615 Evans Street (albeit with separate legal descriptions), as was
the case with Landowners’ predecessors-in-interest. F.F. Nos. 11, 17 (citing
Applicants’ Exs. 6, 7, Deed, 9/24/69, Deed, 4/24/13).4 Under these circumstances,
4
As the ZBA properly recognized, this fact distinguishes this case from Southdown Inc.,
v. Jackson Township Zoning Hearing Board, 809 A.2d 1059 (Pa. Cmwlth. 2002) in which this
Court determined that the three parcels the landowner claimed constituted one lot were, in fact,
three separate lots where, among other things, the landowner acquired the parcels under separate
deeds. Additionally, as the ZBA recognized, the Zoning Code’s definition of the term “lot”
differs from the definition of “lot” at issue in Southdown. Further, unlike in Southdown, the
parcels at issue here were recognized and approved as a single zoning lot to be developed as a
unit over 60 years ago.
34
no error is apparent in the ZBA’s conclusion that L&I acted properly in revoking
the permits issued to Landowners that would allow construction of two single-
family homes on the single, combined property.5
Nevertheless, Landowners assert 9613 and 9615 Evans Street should
be “grandfathered in” as two lots based on a 1923 survey plan by a developer that
depicted the combined property as two lots, and which predates the enactment of
the Zoning Code as well as a subsequent 2004 amendment that rendered the lots
undersized. Contrary to this assertion, which is based entirely on Landowners’
version of the facts, Landowners did not persuade the fact-finder on this issue. To
that end, Landowners presented no evidence that the combined property was, in
fact, ever used or developed as two separate parcels prior to enactment of the
Zoning Code or an amendment that rendered the purported lots undersized.
Further, as explained above, the ZBA determined the earliest zoning record for the
combined property was the 1952 zoning application, which permitted construction
of one single-family home that straddled the purported property line for the two
parcels. F.F. Nos. 7, 8, 10; Concl. of Law Nos. 7-9. And, the combined property
was consistently used as a single lot for zoning purposes as evidenced by the fact
that the single-family home approved in 1952 was still standing when Landowners
purchased the combined property and at the time of the ZBA hearing. F.F. Nos.
12-13.
5
Based on the ZBA’s supported determinations that the only zoning records pertaining to
the combined property show it was approved and used as one lot for one single-family home, we
need not address Landowners’ argument that the ZBA improperly determined that what
Landowners claim are the two parcels that comprise the combined property merged to form one
lot. Indeed, the ZBA did not rely on the merger doctrine here.
35
In addition, Landowners take issue with the statement in L&I’s letter
revoking the permits, which indicated that if Landowners wished to utilize the
combined property as two lots they would be required to comply with Section 14-
304(6) of the Zoning Code by obtaining approval for two lots (relating to “Lot
Adjustments”). Landowners assert this statement disregards the fact that the two
lots that comprise the combined property were never formally consolidated and,
therefore, L&I could not require subdivision of the combined property. Contrary
to Landowners’ assertion, and as discussed above, the ZBA’s supported
determinations indicate that the combined property is, in fact, one lot and,
according to zoning records has only been used as one lot; therefore, use of the
combined property for two lots would require subdivision as indicated by L&I.
Further, although Landowners also assert L&I lacked authority to
approve relocation of the lot lines in order to create a consolidation of what
Landowners claim are two lots on L&I’s own motion, this is not what occurred
here. Indeed, as set forth above, the ZBA’s supported determinations reveal that in
1952 the property owners applied for and received approval to utilize the combined
property as a single zoning lot through construction of a single-family home
located at approximately the center of the combined property. The property has
been used for that purpose ever since the 1952 approval was granted. Thus, L&I
did not authorize consolidation of the combined property on its own motion.
Nevertheless, Landowners maintain the consolidation of the combined
property in 1952 did not comply with the applicable Zoning Code provisions. In
support, they rely primarily on the testimony of Attorney Beller, who explained
36
that the 1952 zoning application did not comply with the requirements for lot
consolidation. However, as indicated in the excerpted findings and conclusions set
forth above, the ZBA expressly rejected Attorney Beller’s testimony on this point
because, among other things, Attorney Beller did not begin practicing law until 10
years after the approval of the 1952 zoning application and, therefore, could offer
no direct testimony on this issue. Concl. of Law No. 12; see also Concl. of Law
No. 11.
In addition, while Landowners argue L&I improperly issued the 1952
zoning permit to allow construction of the single-family home on the combined
property, as the ZBA determined, “the time for appealing the 1952 permit has long
since passed. [Landowners’] argument must therefore fail even if they are right in
contending that [L&I] failed to follow ‘established protocol’ in issuing the 1952
permit.” Concl. of Law No. 18. In short, Landowners cannot challenge the
previously unappealed grant of the 1952 zoning permit more than 60 years after its
issuance.
Finally, as the ZBA properly concluded, Landowners’ “vested rights”
argument also fails. Our Supreme Court holds that five factors must be weighed in
determining whether a party acquired vested rights as a result of permits issued by
the government. Petrosky v. Zoning Hearing Bd. of U. Chichester Twp., Delaware
Cnty., 402 A.2d 1385 (Pa. 1979). These factors are: (1) his due diligence in
attempting to comply with the law; (2) his good faith throughout the proceedings;
(3) the expenditure of substantial unrecoverable funds; (4) the expiration without
appeal of the period during which an appeal could have been taken from the
37
issuance of the permit; and, (5) the insufficiency of the evidence to prove that
individual property rights or the public health, safety or welfare would be
adversely affected by the use of the permit. Id.Here, as the ZBA correctly determined, the 30-day period in which to
appeal the issuance of the permits had not expired at the time of the revocations.
Indeed, Landowners were: (1) advised prior to submitting their permit applications
that the combined property would be treated as one zoning lot; (2) informed that
the permits would be revoked within days of their issuance; and, (3) notified of the
revocation of the permits about a week later, well prior to expiration of the 30-day
appeal period. Concl. of Law No. 20. Additionally, the ZBA found, in their filed
permit applications, Landowners did not disclose that the existing single-family
home spanned the combined property, instead describing the parcels as “vacant
lot[s].” Id. As a result, as the ZBA properly determined “in addition to the timing
issues precluding a finding of vested rights, it is arguable that [Landowners] did
not act in good faith.” Id. No error is apparent in the ZBA’s rejection of
Landowners’ vested rights argument.
III. Conclusion
For all the foregoing reasons, we affirm the trial court’s grant of the
City’s petition to appeal nunc pro tunc to this Court, and we reverse the trial
court’s order that reversed the ZBA’s decision upholding revocation of the zoning
permits.
ROBERT SIMPSON, Judge
Judge Cohn Jubelirer did not participate in the decision in this case.
38
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Emilio DiCicco, Vincenzo Ciocca :
and Antonio Sellecchia :
:
v. : No. 2625 C.D. 2015
:
City of Philadelphia, :
Zoning Board of Adjustment :
:
Appeal of: City of Philadelphia :
ORDER
AND NOW, this 10th day of May, 2017, the order of the Court of
Common Pleas of Philadelphia County dated March 17, 2016 and docketed March
22, 2016 is AFFIRMED. The order of the Court of Common Pleas of
Philadelphia County dated and docketed September 2, 2015 is REVERSED.
ROBERT SIMPSON, Judge