L&S Partnership, LLC v. Philadelphia ZBA and Pennsport Civic Association ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
L&S Partnership, LLC, :
Appellant :
:
v. :
:
Philadelphia Zoning Board :
of Adjustment and : No. 1493 C.D. 2016
Pennsport Civic Association : Argued: December 4, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 27, 2017
L&S Partnership, LLC (L&S) appeals from the Philadelphia County
Common Pleas Court’s (trial court) August 1, 2016 order affirming the Philadelphia
Zoning Board of Adjustment’s (ZBA) October 13, 2015 decision granting Pennsport
Civic Association’s (Protestant) challenge to a building permit issued by the City of
Philadelphia (City), Department of Licenses and Inspections (Department) to the new
owners of the property located at 1307 E. Moyamensing Avenue, Philadelphia
(Property). There are four issues before this Court: (1) whether the ZBA had subject
matter jurisdiction; (2) whether the ZBA erred when it concluded that a variance
issued in 1960 (1960 Variance) permitting a three-family dwelling had been
abandoned; (3) whether the Department properly issued the building permit to L&S
based on the 1960 Variance; and, (4) whether the ZBA erred when it found the 1960
Variance had been abandoned despite a lack of substantial evidence demonstrating
intent to abandon. After review, we affirm.
In December 2014, L&S purchased the Property, and on March 19, 2015
applied to the Department for a permit to perform interior alterations to the building
located at the Property. L&S described the use of the building as a three-family
dwelling. The Department issued the permit on April 8, 2015. The permit identified
the Property’s occupancy as a three-family dwelling and characterized the authorized
work as “Level II alterations (no change of occupancy) to three (3)[-]family dwelling
as per approved plans.” Reproduced Record (R.R.) at 25a.
On May 8, 2015, Protestant appealed from the permit issuance to the
ZBA alleging that the Department erred when it issued the permit because the
Property had long been a single-family dwelling and the Philadelphia Zoning Code
(Zoning Code) prohibits a three-family dwelling at the Property. Protestant also
alleged that L&S had misrepresented the nature of the work in the building permit
application, as alterations to an existing three-family dwelling.
On August 19, 2015, the ZBA held a hearing on the appeal. Protestant’s
president, Dr. James Moylan (Moylan), testified that he became aware of the matter
from neighbors who reported seeing a permit authorizing the use of the Property as a
three-family dwelling. Moylan stated that he contacted a City councilman who
assisted him in gathering information about the Property. He discovered that the
City’s Office of Property Assessment listed the Property as a single-family dwelling,
and he found no other documents that demonstrate that the Property had been
recently used as a multi-family dwelling. He also reviewed the Property’s multiple
listing service (MLS) real estate listing that identified the home as a single-family
home.
Two of the Property’s neighbors also appeared as witnesses for
Protestant. Pat Castineira (Castineira) testified that she has owned the house next
door to the Property for twenty years and has resided there for the last twelve years.
She explained that a man named Bill Wallace (Wallace) lived alone at the Property
2
during the time she owned her property. Wallace was in failing health and Castineira
brought him food and cared for him. She further stated that she had been inside the
Property on both the first and second floors and was unaware of any apartment units
at the Property. She testified that she had last been in the Property approximately
four years ago to care for Wallace, shortly before he died. According to Castineira,
Wallace left the Property to another neighbor whose daughter and two children lived
there until approximately one year before the hearing, when the Property was listed
for sale.
Margaret Ann Szczepanek (Szczepanek) also testified that she was born,
raised and currently lives three doors down from the Property and has been there for
48 years. Szczepanek stated that the Property has been used as a single-family home
during the entire time she has lived in her home. She explained that she was in the
Property as a child and that it was a single-family dwelling.
The City presented the testimony of Andrew Kulp (Kulp), the
Department plans examiner, who reviewed L&S’s application and issued the building
permit. Kulp testified that prior to issuing the building permit, he checked the City’s
zoning archives and found a “zoning permit or use registration permit . . . from 1960
for a three-family dwelling that was granted by variance.” R.R. at 75a. Kulp
explained: “When you’re doing a building review, if you’re just verifying that the
existing use of the property is whatever they’re saying it is, the legal use, you don’t
necessarily look into the zoning classification or anything.” R.R. at 81a-82a.
However, he did acknowledge that: “I do do zoning and building. So if I get a
building permit application for a use that has no history . . . I can do a zoning review
and look into it.” R.R. at 109a. He further clarified: “There’s nothing in the current
[Z]oning [Code] that says that a variance [is] los[t] if it’s abandoned. If there was
non[-]conforming, . . . I would have looked into the history of the property to make
sure it was [a] continued use. But the current [Z]oning [C]ode does not say anything
3
about abandonment or zoning usage.” R.R. at 82a-83a. Kulp approved the building
permit based upon his belief that the 1960 Variance permitted a three-family
dwelling. Notably, Kulp did not consider whether the Property’s previous owner had
abandoned the 1960 Variance under the prior Zoning Code (Prior Zoning Code).1
John Chan (Chan), owner of L&S, appeared pro se, and testified that
L&S purchased the Property in December 2014, but he denied seeing the MLS listing
prior to the purchase. Chan described the first floor of the Property as follows:
[O]n [the] left-hand side is [a] living room and in the back
is [a] kitchen. Then in the middle is a room. It might be a
bedroom. And there is a bathroom right next to the –
behind the kitchen. . . . First floor is – when you walk in,
you turn left. There’s a living room. In the middle room
should be a bedroom.
R.R. at 118a-119a. Chan, however, acknowledged that the middle room could be a
dining room. He continued his description:
In the back is a kitchen. On the right-hand side of the
kitchen there is a shower. There is a bathroom. . . . Then
on the left-hand side you go up to the second floor. In the
middle is a bathroom. And then in the front is a bedroom.
In the back, we don’t see the kitchen there, but we do see
the pipe and the existing . . . sewage and stuff. . . . Third
floor, apparently, somebody is building – putting up a closet
on the right-hand side. So, they took steps off. [The
previous owner was] doing some kind of cabinet.
R.R. at 119a. Chan explained that to get to the third floor, “[t]here is a ladder that is
an opening.” R.R. at 121a. According to Chan: “There’s a kitchen, a bathroom and
one bedroom. Everything indicate[s] to us there is an apartment on the third floor.”
Id.
1
The Prior Zoning Code was repealed and replaced by the provisions of Bill No. 110845,
approved December 22, 2011 and effective August 22, 2012.
4
On October 13, 2015, the ZBA voted to grant Protestant’s appeal. The
ZBA found that although a variance was granted in 1960 permitting the Property to
be used as a three-family dwelling, “the three-family use was discontinued and . . .
the Property ha[s] been used as a single[-]family dwelling for decades.” R.R. at 176a.
The ZBA also found that “[t]he evidence of record establishes that the three[-]family
use approved by variance was discontinued decades ago – long before the August 22,
2012, effective date of the current [Zoning] Code.” R.R. at 177a. The ZBA
considered provisions of the Prior Zoning Code in effect before 2012 which provided
that “any use authorized by the [ZBA], when discontinued for a period of three
consecutive years, shall be considered abandoned and may not be resumed without
further approval from the [ZBA].” R.R. at 177a. Based thereon, and the evidence
presented at the hearing, the ZBA concluded, “the three-family use approved by the
1960 [V]ariance was discontinued more than three years prior to the effective date of
the new [Zoning] Code and that the old [Zoning] Code’s provisions regarding
abandonment therefore applied.” Id.
On October 27, 2015, L&S, through newly retained counsel, submitted a
request for reconsideration and rehearing. On November 4, 2015, the ZBA denied
L&S’s request.
On November 12, 2015, L&S filed a notice of appeal to the trial court.
On June 9, 2016, the trial court heard oral argument on L&S’s appeal, and on August
1, 2016, the trial court affirmed the ZBA’s decision. L&S filed a timely appeal to
this Court.2
2
This Court has explained:
Where, as here, the trial court takes no additional evidence, our scope
of review is limited to determining whether the [ZBA] committed an
abuse of discretion or an error of law. An abuse of discretion is
established where the findings are not supported by substantial
evidence. Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
5
I. Jurisdiction
L&S first argues that the ZBA lacked subject matter jurisdiction to hear
Protestant’s appeal from the issuance of the building permit, and instead, Protestant
should have filed its appeal with the Board of License and Inspection Review (L&I
Review Board).
Section 5-1002 of the Home Rule Charter provides:
The Department . . . shall have the power and its duty shall
be to perform the following functions:
(a) Building Safety and Sanitation, Signs and Zoning. It
shall, except as otherwise specifically provided in this
charter, administer and enforce all statutes, ordinances
and regulations for the protection of persons and property
from hazards, in the use, condition, erection, alteration,
maintenance, repair, sanitation (including the
maintenance and condition of plumbing and drainage
facilities and the maintenance of sanitary conditions in
housing accommodations), removal and demolition of
buildings and structures or any parts thereof and the
grounds appurtenant thereto, in the operation of
equipment therein, and of outdoor signs. Subject to the
powers and duties of the [ZBA], the Department shall
enforce compliance with zoning ordinances.
(b) Issuance of Licenses.[3] The Department shall:
(1) Issue all forms for applications and receive all
applications for any license;
(2) Determine whether the applicant is properly
entitled to the license which he seeks;
....
Soc’y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of City of Philadelphia, 771
A.2d 874, 877 n.3 (Pa. Cmwlth. 2001) (citations omitted).
3
Section 5-1001(a) of the Home Rule Charter defines “license” as “any license or permit
required by statute, ordinance or regulation to be obtained from any officer, department, board or
commission as a prerequisite to engaging in any activity or having possession of or using any
property . . . .” Home Rule Charter, § 5-1001(a).
6
(4) If the application is refused, notify the applicant
in writing of the refusal and the reasons therefor.
....
The requirements and standards to be met by applicants for
licenses shall be established by the Department in all cases
in which the Department is responsible for the functions
involved. In all other cases, the requirements and standards
shall be certified to the Department by the officers,
departments, boards or commissions for which the
Department is acting. The Department, when in doubt
concerning the interpretation to be placed on the certified
requirements or standards, may consult the certifying
officer, department, board or commission, but the
Department shall make the decision whether the license
should be granted.
....
(d) Enforcement. The Department shall determine as
the result of its inspections whether any person or the
owner of any property is violating the conditions of any
license, or whether or not any property owner is violating
any statute, ordinance or regulation which it is the
duty of the Department to enforce.
Home Rule Charter, § 5-1002 (emphasis added). Further, Section 5-1005 of the
Home Rule Charter describes the L&I Review Board appeal procedures:
The [L&I Review Board] shall provide an appeal procedure
whereby any person aggrieved by the issuance, transfer,
renewal, refusal, suspension, revocation or cancellation of
any City license or by any notice, order or other action as a
result of any City inspection, affecting him directly, shall
upon request be furnished with a written statement of
the reasons for the action taken and afforded a hearing
thereon by the [L&I Review Board]. Upon such hearing
the Board shall hear any evidence which the aggrieved
party or the City may desire to offer, shall make findings
and render a decision in writing. The Board may affirm,
modify, reverse, vacate or revoke the action from which the
appeal was taken to it.
Home Rule Charter, § 5-1005 (bold and italic emphasis added).
7
In contrast, Section 4-607 of the Home Rule Charter describes the
ZBA’s powers and duties:
(1) In accordance with any statute or ordinance as now or
hereafter in force, the [ZBA] shall:
(a) Hear and decide appeals in zoning matters
where error is alleged in any order,
requirement, decision or determination made by
an administrative official in the enforcement
of zoning ordinances, regulations and maps;
(b) Hear and decide special exceptions to any zoning
ordinance upon which the Board is required to
pass;
(c) Authorize, upon appeal, in specific cases, such
variance from the terms of any zoning ordinance
as will not be contrary to the public interest,
where, owing to special conditions, a literal
enforcement of the provisions of the ordinance
will result in unnecessary hardship, and so that
the spirit of the ordinance shall be observed and
substantial justice done.
(2) In the exercise of its powers, the [ZBA] may reverse or
affirm, wholly or partly, or modify, the order, requirement,
decision or determination appealed from, and make such
order, requirement, decision or determination as ought to be
made, and, to that end, it shall have all the powers of the
officer from whom the appeal is taken.
Home Rule Charter, § 4-607 (emphasis added). Further, Section 14-301(4) of the
Zoning Code provides:
(a) General Authority.
The [ZBA] is established by § 3-911 of the
Philadelphia Home Rule Charter and has those
powers set forth in § 5-1006 [renumbered to § 4-
607] of the Philadelphia Home Rule Charter and
§ 14-103(4) ([ZBA]).
(b) Authority for Final Action.
8
(.1) The [ZBA] is responsible for final action
regarding:
(.a) Appeals pursuant to § 14-303(15)
(Appeals).
(.b) Variances. See § 14-303(8) (Zoning
Variances).
(.c) Special exceptions. See § 14-303(7)
(Special Exception Approval).
(.2) The [ZBA] may impose conditions consistent
with § 14-303(9) (Conditions on Approvals)
on items § 14-301(4)(b)(.1)(.a) through § 14-
301(4)(b)(.1)(.c) above.
Zoning Code Section 14-301(4) (emphasis added). Section 14-303(15)(a)(.1) of the
Zoning Code states: “Any final order, requirement, decision, or determination made
by [the Department] pursuant to this Zoning Code may be appealed to the
[ZBA] by any person or organization affected by the decision or by any department
or agency of the City.” Zoning Code Section 14-303(15)(a)(.1) (emphasis added).
L&S contends that the L&I Review Board has exclusive jurisdiction
over the appeal based upon Section 5-1005 of the Home Rule Charter because L&S
sought and received a building permit from the Department.4 In support of its
position, L&S cites Berger & Montague, P.C. v. Philadelphia Historical
Commission, 898 A.2d 1 (Pa. Cmwlth. 2006); East Hempfield Township v. Lancaster,
273 A.2d 333 (Pa. 1971); and Day v. School District of Darby Township, 252 A.2d
638 (Pa. 1969). However, these cases are inapposite.
4
Section 5-1005 of the Home Rule Charter provides a right to appeal to the L&I Review
Board from “the issuance, transfer, renewal, refusal, suspension, revocation or cancellation of any
City license or . . . notice, order or other action as a result of any City inspection . . . .” Home
Rule Charter, § 5-1005 (emphasis added). The instant appeal did not arise as the result of a City
inspection, but rather from a challenge to the recognition of an arguably invalid variance. Thus,
Section 5-1005 of the Home Rule Charter is not applicable.
9
In Berger & Montague, this Court held that an appeal from a
Philadelphia Historical Commission decision, where no actual permit was issued, was
properly brought before the L&I Review Board because the Philadelphia Code
explicitly provided that any person aggrieved by the issuance or denial of any
Commission issued permit may appeal to the L&I Review Board. Contrary to L&S’s
contention, this case does not stand for the proposition that the L&I Review Board
has exclusive jurisdiction over an appeal from issuance of a building permit, but
rather that the term “license” as used in the Home Rule Charter is to be construed
broadly. See Berger & Montague, 898 A.2d at 6.
In East Hempfield, our Supreme Court considered whether a trial court
had jurisdiction to determine the reasonableness of water rates fixed by a city, for
users outside the city, or whether the Pennsylvania Public Utility Commission (PUC)
had exclusive jurisdiction. Based on explicit statutory authority subjecting city-
provided public utility service to the PUC’s regulation and control, and other
statutory authority requiring that such service outside the city limits also be subject to
the PUC’s regulation and control, the Supreme Court ruled that exclusive jurisdiction
rested with the PUC. In the instant matter, there is no similar mandate directing that
the Department or the L&I Review Board have exclusive control or jurisdiction. To
the contrary, Section 5-1002(a) of the Home Rule Charter explicitly states: “Subject
to the powers and duties of the [ZBA], the Department shall enforce compliance
with zoning ordinances.” Home Rule Charter, § 5-1002(a) (emphasis added).
Finally, Day involved a challenge to a school board resolution requiring
integration of two elementary schools. There, the appellant argued that the trial court
lacked jurisdiction because the Human Relations Commission had the exclusive right
to hear the dispute pursuant to Section 12 of the Pennsylvania Human Relations Act.5
5
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 962(b).
10
In the present case, there is no similar provision mandating exclusive jurisdiction in
the L&I Review Board.
Here, the trial court found that the ZBA had jurisdiction, explaining:
The Philadelphia Home Rule Charter Section 5-1006(1)(a)
gives the ZBA the power to ‘hear and decide appeals in
zoning matters where error is alleged in any order,
requirement, decision or determination made by an
administrative official in the enforcement of zoning
ordinances, regulations and maps.’ Furthermore, [Section
909.1 of the Pennsylvania Municipalities Planning Code
(MPC),6] 53 P.S. § 10909.1(a), gives the ZBA ‘exclusive
jurisdiction to hear and render final adjudications . . . (5)
applications for variances from the terms of the zoning
ordinance. . . .’ 53 P.S. § 10909.1(a) . . . .
Trial Court Supplemental Opinion (February 7, 2017) at 2-3, R.R. at 251a-252a.
While this Court agrees that the ZBA had jurisdiction to address the instant matter, its
jurisdiction is not based upon the MPC.7 Our Supreme Court has held that “the MPC
does not apply to the City of Philadelphia, which . . . is governed instead by the [First
Class City] Home Rule Act[8] and the Zoning Code.” Scott v. City of Philadelphia
Zoning Bd. of Adjustment, 126 A.3d 938, 941 (Pa. 2015).
Rather, the ZBA’s jurisdiction is founded in the Home Rule Charter and
the Zoning Code. Importantly, Section 4-607(1)(a) of the Home Rule Charter
describes the ZBA’s jurisdiction as including “appeals in zoning matters where error
is alleged in any order, requirement, decision or determination made by an
administrative official in the enforcement of zoning ordinances, regulations and
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. Section 909.1 of the
MPC was added by the Act of December 21, 1988, P.L. 1329.
7
“This court may affirm the decision of the trial court on any grounds.” Slusser v. Black
Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772 n.1 (Pa. Cmwlth. 2015). Thus, “a correct
decision will be sustained for any reason whatsoever, even though the reason given by the court
below to sustain its decision was erroneous.” Keebler v. Zoning Bd. of Adjustment of City of
Pittsburgh, 998 A.2d 670, 673 (Pa. Cmwlth. 2010).
8
Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101–13157.
11
maps[.]” Home Rule Charter, § 4-607(1)(a). Similarly, Section 14-303(15)(a)(.1) of
the Zoning Code authorizes appeals to the ZBA from “[a]ny final order, requirement,
decision, or determination made by [the Department] pursuant to [the] Zoning Code .
. . .” Zoning Code, § 14-303(15)(a)(.1).
Here, L&S placed the Property’s use in issue when it characterized the
Property as an existing three-family dwelling in the Building Permit Application.
Thus, the matter involved a zoning issue, one that the Department was authorized
under Section 5-1002 of the Home Rule Charter to enforce, but a matter clearly
within the jurisdiction of the ZBA. Protestant appealed from the Department’s
building permit; Kulp, a Department employee and civil engineer, based the building
permit’s issuance upon his belief, in the exercise of his duties on behalf of the
Department to “enforce compliance with zoning ordinances” under Section 5-1002(a)
of the Home Rule Charter, that a variance existed which allowed the proposed
building permit. Because Protestant’s appeal before the ZBA involved an alleged
error in a zoning matter (i.e., whether the building permit was properly issued for a
three-family dwelling in the absence of a new variance), it was properly before the
ZBA.9
II. Abandonment of the 1960 Variance
Next, L&S contends that the ZBA erred when it considered the 1960
Variance permitting the three-family dwelling as though it were a non-conforming
9
L&S inaccurately characterizes the instant action as an untimely appeal from the grant of
the 1960 Variance. In fact, this appeal is based not on a challenge to the 1960 Variance’s original
issuance, but on the assertion that the validly issued 1960 Variance was abandoned during the
effective period of, and in accordance with, the Prior Zoning Code. The question of whether the
1960 Variance had been abandoned did not become relevant until L&S sought the building permit
to use the Property consistent with the 1960 Variance.
12
use and determined that the 1960 Variance was abandoned.10 Until August 22, 2012,
the Prior Zoning Code provided: “Any use authorized by the [ZBA], when
discontinued for a period of three consecutive years, shall be considered abandoned
and may not be resumed without further approval from the [ZBA].” Prior Zoning
Code § 14-104(5)(c) (repealed effective August 22, 2012) (emphasis added).11
10
Protestant contends that Section 14-305(3)(b) of the Zoning Code supports its position
that the 1960 Variance was abandoned when it was not used. That Section provides:
A nonconformity that would not be permitted by this Zoning Code but
that has been authorized through a variance or other action of the
[ZBA], or that has been authorized by court order, is not a
nonconformity, so long as it complies with the terms of that
authorization. This exception applies only to the portion of the
property that was expressly approved by [ZBA] action or court order.
If, for example, the [ZBA] granted a use variance on a lot that does
not comply with applicable lot size requirements, the lot retains its
non[-]conforming status despite the granting of the use variance.
Zoning Code, § 14-305(3)(b) (emphasis added). Protestant argues that since the Property “no
longer complie[d] with the terms of” the 1960 Variance, it lost its protected status. Id. This court
does not agree that Section 14-305(3)(b) of the Zoning Code mandates such an outcome. Instead,
we interpret Section 14-305(3)(b) of the Zoning Code to mean that so long as the authorized use is
not exceeded, the authorized use will not be considered a nonconformity. This Court rejects the
interpretation that Section 14-305(3)(b) of the Zoning Code requires that if a property is used in a
way that would be conforming absent the approval, the approved non-conforming use will be lost.
11
Although Section 14-104 of the Prior Zoning Code was titled “Non-Conforming
Structures and Uses,” this Court concludes that subpart 5(c) addressed uses including those pursuant
to a variance. Section 14-104(5) of the Prior Zoning Code, titled “Discontinued Use[,]” provided:
(a) A non-conforming [use] when discontinued for a period
of three consecutive years or less may be resumed as the same
non-conforming use and no other.
(b) A non-conforming use when discontinued for a period of
more than three consecutive years shall be considered
abandoned and may not be resumed . . . .
(c) Any use authorized by the [ZBA], when discontinued for
a period of three consecutive years, shall be considered
abandoned and may not be resumed without further approval
from the [ZBA].
13
However, the ZBA issued its decision on October 13, 2015, after the repeal of
Section 14-104(5)(c) of the Zoning Code.12 Importantly, the current Zoning Code
contains the following provision to address the transition from the Prior Zoning Code:
Permits and approvals that are valid on the effective date of
this Zoning Code shall remain valid until their expiration
date. Projects with valid approvals or permits may be
carried out in accordance with the development standards in
effect at the time of approval, provided that the permit or
approval is valid and has not lapsed[.]
Zoning Code, § 14-110(2)(a) (emphasis added).
Protestant presented evidence at the August 19, 2015 ZBA hearing
demonstrating that the Property had long been used as a single-family home. Both
Prior Zoning Code, § 14-104(5) (repealed effective August 22, 2012) (bold and italic emphasis
added). Because Subparts (a) and (b) specifically addressed discontinued “non-conforming use[s,]”
it is clear that the general reference to “[a]ny use authorized by the [ZBA]” in Subpart (c) pertained
to uses authorized by the ZBA other than “non-conforming use[s.]” Id.
12
Section 14-303(10)(e) of the current Zoning Code, which pertains to the “[l]apse of
[p]ermits and [a]pprovals,” and specifically addresses abandonment of variances was not approved
until December 8, 2015, after the ZBA issued its October 13, 2015 decision. That Section is
substantially similar to Section 104(5)(c) of the Prior Zoning Code and states:
Any use authorized by the [ZBA] by variance or special exception,
when discontinued for a period of three consecutive years, shall
be considered abandoned and shall not resume unless a new
permit is issued, either as of right under then-existing Zoning Code
provisions or by a new variance or special exception. A
discontinuation of such a use may be evidenced by any one of the
following:
(.1) Discontinuance of operations;
(.2) Removal of improvements necessary to the use;
(.3) Modifications to the property that make it unsuitable
for the use;
(.4) Lapsing of permits or licenses necessary to operate
the use; or
(.5) Failure to pay property taxes or taxes related to the
use.
Zoning Code, § 14-303(10)(e) (emphasis added). Although the trial court did not cite to Section 14-
303(10)(e) of the Zoning Code, it was in effect at the time the trial court issued its opinion.
14
Castineira and Szczepanek testified that the Property had been used as a single-family
dwelling for many years, and described their familiarity with the Property. Based on
Protestant’s evidence, the ZBA found that during the period before August 22, 2012,
the Property had not been used consistent with the 1960 Variance for three
consecutive years, and thus in accordance with Section 14-104(5)(c) of the Prior
Zoning Code, the 1960 Variance had been abandoned.
This Court may not substitute its interpretation of the
evidence for that of the [ZBA]. It is the function of a
[ZBA] to weigh the evidence before it. The [ZBA] is the
sole judge of the credibility of witnesses and the weight
afforded their testimony. Assuming the record contains
substantial evidence, we are bound by the [ZBA’s] findings
that result from resolutions of credibility and conflicting
testimony rather than a capricious disregard of evidence.
Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 518 (Pa.
Cmwlth. 2014) (citations omitted). After a thorough review, this Court concludes
that the ZBA’s findings are based on substantial evidence and we discern no error in
the ZBA’s analysis. Accordingly, pursuant to Section 14-110(2)(a) of the Zoning
Code, the 1960 Variance was not valid under the current Zoning Code.13
13
Having found that the 1960 Variance was abandoned under the Prior Zoning Code, we
need not further address L&S’s third argument that the Department properly issued the building
permit to L&S based on the 1960 Variance.
We also reject L&S’s assertion that the ZBA erred when it found that the 1960 Variance had
been abandoned where there was no substantial evidence of an intent to abandon. This Court has
explained that “[t]he effect of a zoning code provision . . . forbidding reestablishment after a period
of discontinuance is that of the creation by discontinuance of a presumption of the owner or
occupier’s intent to abandon that use.” Smith v. Bd. of Zoning Appeals of City of Scranton, 459
A.2d 1350, 1352 (Pa. Cmwlth. 1983). Thus:
Failure to use the property for a designated time provided under a
discontinuance provision is evidence of the intention to abandon. The
burden of persuasion then rests with the party challenging the claim of
abandonment. If evidence of a contrary intent is introduced, the
presumption is rebutted and the burden of persuasion shifts back to
the party claiming abandonment.
15
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Senior Judge Colins concurs in the result only.
Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Twp., Westmoreland Cty., 720 A.2d 127,
132 (Pa. 1998) (quoting Pappas v. Zoning Bd. of Adjustment of the City of Philadelphia, 589 A.2d,
675, 678 (Pa. 1991) (Zappala, J., concurring)). The Prior Zoning Code § 14-104(5)(c) (repealed
effective August 22, 2012) created the presumption of the previous owner’s intent to abandon the
1960 Variance, and L&S did not present evidence to rebut the presumption.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
L&S Partnership, LLC, :
Appellant :
:
v. :
:
Philadelphia Zoning Board :
of Adjustment and : No. 1493 C.D. 2016
Pennsport Civic Association :
ORDER
AND NOW, this 27th day of December, 2017, the Philadelphia County
Common Pleas Court’s August 1, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge