The Faithful Laurentians v. City of Philadelphia, ZB of Adjustment v. 1600 Berks, LLC ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Faithful Laurentians, by Their :
Trustees Ad Litem, Carolyn Devine :
and Venise Whitaker, :
Appellant :
:
v. : No. 1440 C.D. 2017
: ARGUED: November 15, 2018
City of Philadelphia, Zoning Board :
of Adjustment :
:
v. :
:
1600 Berks, LLC :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge1
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: February 12, 2019
Appellant “The Faithful Laurentians, by Their Trustees Ad Litem, Carolyn
Devine and Venise Whitaker” (Appellant or Faithful Laurentians)2 appeals from the
Court of Common Pleas of Philadelphia County’s (Trial Court) August 29, 2017,
Order quashing Appellant’s appeal of the City of Philadelphia (City), Zoning Board
1
This case was argued before a panel of the Court that included Senior Judge James
Gardner Colins, as well as Judge Michael H. Wojcik and Judge Ellen Ceisler. Because Senior
Judge Colins’ service on this Court ended on December 31, 2018, this matter has been submitted
on briefs to Senior Judge Leadbetter as a member of this panel.
2
A trustee ad litem is one who is appointed by the court and “stands in a fiduciary or
confidential relation to another; [especially], one who, having legal title to property, holds it in
trust for the benefit of another and owes a fiduciary duty to that beneficiary.” TRUSTEE, Black’s
Law Dictionary (10th ed. 2014).
of Adjustment’s (Board) decision granting dimensional and use variances to Linden
Lane Capital Partners, LLC (Linden) pertaining to Saint Laurentius Polish Catholic
Church (Church), an historically designated, deconsecrated church located at 1600-
1618 Berks Street in Philadelphia (Property). The Trial Court quashed the appeal
due to Appellant’s lack of standing to appeal. After thorough review, we affirm the
Trial Court.
I. Background
The legal structure of the Faithful Laurentians is not clearly articulated in the
record, but it appears to be an informal group of citizens who advocate for the
preservation and reuse of Church, which is located on the Property. See Trial Ct. Op.
11/29/17 at 6-7; Appellant’s Br. at 10; Notes of Testimony (N.T.), 11/1/16, at 20.3
Ms. Whitaker and Ms. Devine indicate that they are the Faithful Laurentians’
trustees ad litem; however, it is important to note, at the outset, that neither woman
offered any proof whatsoever that they were appointed as such by any court. Ms.
Whitaker has apparently taken the lead on garnering support of citizens interested in
preserving the Church. See, e.g., N.T., 11/1/16, at 31-33.
The Property consists of seven separate parcels of land and is owned by the
Archdiocese of Philadelphia (Archdiocese), which deconsecrated and closed the
Church in 2014. N.T., 11/1/16, at 5. The Church has been vacant since then and was
deemed by the Philadelphia Department of Licenses and Inspections (L&I) to be
3
Appellant asserts, without elaboration, that it is an “unincorporated association.”
Appellant’s Br. at 10. According to Black’s Law Dictionary, an unincorporated association is one
which “is not a legal entity separate from the persons who compose it.” ASSOCIATION, Black’s
Law Dictionary (10th ed. 2014). See also Krumbine v. Lebanon Cty. Tax Claim Bureau, 663 A.2d
158, 160 (Pa. 1995) (“Absent express statutory authority, however, an unincorporated association
is not a legal entity; it has no legal existence separate and apart from that of its individual
members.”).
2
unsafe due to serious structural problems. Board’s Op., Findings of Fact (F.F.) ¶¶10,
12. “Documentation from the Department updated on October 14, 2016, rated the
priority of the violations as ‘unsafe.’” Id., F.F. ¶12.
The Archdiocese eventually sold part of the Property to Linden,4 which
became the equitable owner of the portion of the Property containing the Church
under a January 26, 2016, Agreement of Sale. See Agreement of Sale at 1-2. This
Agreement is contingent upon Linden successfully obtaining a use variance enabling
transformation of the Church into multi-unit residential housing, as well as several
dimensional variances. Id. at 1-2, Ex. C; Board’s Op., F.F. at ¶1; N.T., 11/1/16, at 2.
On July 27, 2016, Linden submitted a zoning permit application to L&I,
seeking authorization to convert the Property into twenty-three units of residential
housing while preserving the Church’s historic exterior. Board’s Op., F.F. ¶1. On
August 12, 2016, L&I denied the application because the Property is zoned RSA-5,
which only permits that the Property be used for single-family residential homes.
Id., F.F. ¶2; Id., Conclusions of Law (C.L.) ¶2; N.T, 11/1/16, at 5, 7. On August 15,
2016, Linden appealed to the Board. Board’s Op., F.F. ¶3.
On November 1, 2016, the Board conducted a hearing on Linden’s use and
dimensional variances application. N.T., 11/1/16, at 7; Board’s Op., F.F. ¶13. At this
hearing, Linden’s attorney noted that the Property is currently zoned RSA-5, which
permits construction of single-family homes. N.T., 11/1/16, at 5, 8; Board’s Op.,
F.F. ¶13. However, Linden’s attorney stated that even this kind of permissible
development would require demolition of the Church, and that “few other
4
On February 1, 2018, Linden assigned all its rights, duties and obligations under its
Agreement of Sale with the Archdiocese to 1600 Berks, LLC (Berks). See Application for Relief,
3/5/18, at 2. On May 2, 2018, this Court amended the caption to reflect the substitution of Berks
for Linden.
3
opportunities [exist] for this site that would not require some measure of Board
relief[,]” due to the restrictive nature of the RSA-5 zoning regulations. N.T., 11/1/16,
at 5, 8; Board’s Op., F.F. ¶¶13, 16.
Linden’s attorney asserted that, if his client’s application was granted, its
proposal to convert the Church into a 23 unit, multi-family dwelling would not only
save it from demolition, but would have the added benefit of restoring the Church’s
crumbling exterior. N.T., 11/1/16, at 6; Board’s Op., F.F. ¶¶11, 15, 16. In addition,
Linden’s attorney maintained that his client was requesting only the minimum
variance relief necessitated under the circumstances, relief which would nominally
impact the surrounding community. N.T., 11/1/16, at 14-15, 31; Board’s Op., F.F.
¶19.
Testifying in favor of the requested variances were representatives from the
Philadelphia Planning Commission5 and the Preservation Alliance.6 N.T., 11/1/16,
5
Planning Commission representative Ronald Bednar appeared at the
zoning hearing and testified [that the Commission supported
Linden’s] proposal, saying:
We believe the project is significant within the community
by protecting a historic property from demolition by having
an adaptive reuse of a church into 23 dwelling units. In
consultation with staff of the Historic Commission, this may
be the most feasible project that will protect the exterior of
the [C]hurch. If this building was demolished, the
development could place 14 to 25 single family homes
depending on the surrounding lot size with no unit required
parking.
[N.T., 11/1/16,] at 4.
Board’s Op., F.F. ¶23.
6
Patrick Grossi, representing the Preservation Alliance, “a
preservation advocacy, nonprofit devoted to promoting historic
spaces,” testified that his organization supports the proposal
4
at 4, 17. Testifying in opposition to the application were representatives from the
area councilman’s office and the Fishtown Neighbors’ Association, a registered
community organization for the geographic area around the Property. See Board’s
Op., F.F. ¶¶22-35, 37-40, 42.7 The Board also received and considered letters and
petitions from individuals and organizations who both opposed and supported
Linden’s development proposal. Id., F.F. ¶43.
Ms. Whitaker also testified in opposition to Linden’s application, submitting
“a mission plan and a business plan,” in which she proposed alternative uses of the
building. Board’s Op., F.F. ¶36. The main thrust of Ms. Whitaker’s opposition
however, was that it was her belief that the Archdiocese was not authorized to sell
the Property because the “Church is a charitable deed and trust . . . [and therefore]
belongs to [its] parishioners.” N.T., 11/1/16, at 31-32; Board’s Op., F.F. ¶36.
On November 15, 2016, the Board approved Linden’s application and granted
the requested variances. Board’s Op., C.L. ¶¶9, 17-18. The Board concluded that the
Property’s current zoning restrictions only allowed for the construction of single-
family homes and a limited number of non-residential zoning uses. Id., C.L. ¶¶11-
12. The Board also determined that, in order for single-family homes to be
constructed on the Property, the existing church structure would have to be
demolished, which would require approval from the City’s Historical Commission.
“because we agree . . . this conversion is likely the most viable path
forward for ensuring that the building remains standing.” [N.T.,
11/1/16,] at 17. . . . Mr. Grossi said “creative adaptive reuse projects
such as this one is really the kind of outcome that we would like to
see more of in countless vulnerable churches across the city.” [N.T.,
11/1/16,] at 17-18.
Id., F.F. ¶¶24-25.
7
Individuals testifying in opposition to the variance were community members A.J.
Thompson, Philip Harter, Jesse Gardner and Ryan Sweeney. Id., F.F. ¶¶21, 28, 34, 38-39, 43-44.
5
Id., C.L. ¶12. The Board concluded that the restrictive zoning in that specific area
constituted sufficient evidence to support a finding of unnecessary hardship that was
not self-imposed, and that Linden satisfied all of the requisite variance relief criteria
in the Philadelphia Code (Code). Id., C.L. ¶¶4, 13-16. For example, the Board noted
that Linden’s proposal would not include alterations to the exterior of the Church,
other than those necessary to repair the sections which are deteriorating. Id., C.L.
¶15. Additionally, the Board concluded that the proposed use of the Property was
compatible with public health, safety and welfare, as it would “preserve an
historically significant structure, return a vacant building to a use compatible with
surrounding uses, and eliminate unsafe and unsightly conditions that now exist at
the Property.” Id., C.L. ¶16.
On December 4, 2016, Appellant appealed the Board’s decision to the Trial
Court. Original Record (O.R.) at 3. On July 14, 2017, the City and Linden
(collectively, Appellees) filed a motion to quash Appellant’s appeal in the Trial
Court, arguing that Appellant lacked standing because no one had appeared or
objected on behalf of the Faithful Laurentians association at the November 1, 2016,
Board hearing. Id. at 12. The Trial Court heard oral argument on the appeal and, by
Order dated August 29, 2017, granted Appellees’ motion, thereby quashing
Appellant’s appeal due to lack of standing. Id. at 14. This appeal followed.
II. Issues
On appeal,8 Appellant argues that the Trial Court erred by quashing its appeal
on the issue of standing because Appellant established representational standing
8
Since Appellees properly raised the question of Appellant’s standing at the Trial Court
level, Scott v. City of Philadelphia, Zoning Board of Adjustment, 126 A.3d 938, 948-50 (Pa. 2015),
we review the challenged ruling to determine whether the Trial Court committed an abuse of
6
through its members who testified at the Board’s hearing. Appellant’s Br. at 8, 14-
20. Appellant next maintains that the Trial Court improperly concluded that
Appellant also had to establish that it had organizational standing in order to appeal
the Board’s decision. Id. at 8, 20-24. Third, Appellant states that the Trial Court
mistakenly relied upon Appellant’s April 20, 2017, Fictitious Name Registration to
determine that Appellant did not exist before that date, ignoring the distinction
between such registrations and the nature of unincorporated associations. Id. at 8,
24-26. Finally, Appellant posits that the City does not have standing to contest this
appeal, as the City did not enter an appearance at the Board’s November 1, 2016,
hearing. Id. at 27.9
III. Discussion
Zoning in Philadelphia is governed by both Chapter 14 of the Code and the
First Class City Home Rule Act (Home Rule Act).10 Scott v. City of Philadelphia,
Zoning Bd. of Adjustment, 126 A.3d 938, 948 (Pa. 2015). The Code does not define
who constitutes a “party” before the Board, nor does it limit who may appear and
participate at zoning hearings. Id. However, while there not strict guidelines on who
discretion or error of law. Gateside-Queensgate Co. v. Del. Petroleum Co., 580 A.2d 443, 445 (Pa.
Cmwlth. 1990).
9
Unfortunately, Appellant’s brief is riddled with confusing misapplications of law. Rather
than address each error, we will apply the correct law as it relates to the issues presented by
Appellant. Additionally, some of Appellant’s arguments were confusingly worded, so we have
done our best to correctly interpret Appellant’s arguments.
10
Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §§ 13101-13157. This Act allows
“[a]ny city of the first class” to pass a home rule charter. 53 P.S. § 13101. A city of the first class
has at least 1,000,000 residents. Id. at § 101. Philadelphia enacted its Charter nearly 70 years ago
and has been operating under home rule ever since. See City of Philadelphia v. Schweiker, 858
A.2d 75, 81 n.9 (Pa. 2004) (“Philadelphia adopted its home rule charter under the terms of the [. .
.] Home Rule Act on April 17, 1951; it went into effect on January 7, 1952.”).
7
may appear before the Board, only certain individuals are permitted to appeal
Board decisions to the trial courts. See id. Section 17.1 of the Home Rule Act
identifies those persons as follows:
In addition to any aggrieved person, the governing body
vested with legislative powers under any charter adopted
pursuant to this act shall have standing to appeal any
decision of a zoning hearing board or other board or
commission created to regulate development within the
city. As used in this section, the term “aggrieved person”
does not include taxpayers of the city that are not
detrimentally harmed by the decision of the zoning
hearing board or other board or commission created to
regulate development.
53 P.S. § 13131.1.11
Thus, in order to have standing to appeal a decision of the Board to the trial
court, Section 17.1 of the Home Rule Act requires that an appellant must be an “an
aggrieved person.” However, “[a] party is not necessarily aggrieved simply because
he or she appeared or participated before the Board.” Scott, 126 A.3d at 949. Rather,
for a party to be ‘aggrieved,’ that party must establish on appeal to the Trial Court
that it has an interest that is “substantial, direct, and immediate.” Spahn v. Zoning
Board of Adjustment, 977 A.2d 1132, 1151 (Pa. 2009) (citing William Penn Parking
Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975)); see Scott, 126
A.3d at 949 (“[T]o appeal from the Board to the trial court, an appellant must
demonstrate in the trial court, if challenged, that he is aggrieved pursuant to William
Penn and as applied in Spahn, and may not avoid this obligation by arguing that the
landowner failed to challenge standing before the Board.”).
To qualify as a “substantial” interest, “there must be some discernible effect
on some interest other than the abstract interest all citizens have in the outcome of
11
Added by Act of November 30, 2004, P.L. 1523.
8
the proceedings.” Spahn, 977 A.2d at 1151 (internal citation omitted). For an interest
to be “direct,” the party must demonstrate that his or her interest was harmed. Id.
Finally, to be “immediate,” “there must be a causal connection between the action
complained of and the injury to the party challenging the action.” Id.
Here, Appellant claims it has representational standing to appeal the Board’s
decision because some of its members testified during the Board’s November 1,
2016, hearing. Appellant’s Br. at 8, 14-20. However this assertion is belied by the
Board record. At the Board’s hearing on November 1, 2016, not a single person who
testified identified themselves as a member of the Faithful Laurentians or stated that
they were appearing on its behalf. See O.R. at 238-70. Rather, the protesting
attendees who filled out appearance statements, but who did not testify, show that
they were present in the “capacity” of an “immediate neighbor,” “neighbor,” or
“protestant,” were appearing on behalf of the “interested party,” “St. Laurentius,” or
“St. Laurentius Church,” or merely indicated their names and addresses without
stating their capacity and/or whom they represented. Id.
Additionally, no one, including Ms. Devine and Ms. Whitaker, the Faithful
Laurentians’ putative trustees ad litem,12 averred at the hearing that they represented
the Faithful Laurentians or were testifying on its behalf. Ms. Devine did not testify
at the hearing, but merely filled out an appearance statement indicating that she was
an “interested party” on behalf of “St. Laurentius.” See id. at 253; N.T., 11/1/16, at
1-48. Though Ms. Whitaker did testify, she did not appear as Appellant’s
representative, but as an interested party for “St. Laurentius Church” because “[t]he
community asked” her to do so:
12
Again, there is no proof whatsoever that either Ms. Devine or Ms. Whitaker were ever
appointed trustees ad litem by any Court.
9
MS. WHITAKER: Afternoon. I am going to make it short
and sweet for you, but I have just some handouts.
MR. GALLAGHER [Board’s Sitting Chair]: Give one to
Adam, please. Your name and address.
MS. WHITAKER: [Venise] Whitaker, 1468 East Wilt
Street, six doors from the church.
MR. GALLAGHER: Okay.
MS. WHITAKER: I am third generation from St.
Laurentius. Overall, in those plans, you will see that I
formed with the board that we have a mission plan and a
business plan. We are in the works of talking to the
Archdiocese. We have a church preservationist with us
who saves [sic] St. Mary’s in Conshohocken. He has
worked with over 11 churches and saved them. He already
has a history of working with the Archdiocese. That is
Brody Howell from New York. He wasn’t able to make it
here. I have also in there it shows that St. Laurentius
Church is a charitable deed and trust. It belongs to the
parishioners. I have with me ledgers of parishioners that
go all the way back to 1855 that are with us. In addition, I
have 470 signatures from past parishioners, current — past
parishioners, Fishtown people and River Works. I have
728 signatures from the Change.org. This is that [sic]
we’re asking the . . . Attorney General, to support us to
overturn the deed and return it to us.
MR. LAVER [Linden’s attorney]: I would respectfully
object based on relevance.
MR. GALLAGHER: Can I just offer – I hear what you’re
saying. That is really not before the Board. That is a law
issue that is way above the purview of this Board. We
understand.
MS. WHITAKER: Okay.
MR. GALLAGHER: What is before the Board is
converting this to single[-]family homes. Any new plans
and all that, that is not before us unfortunately. I
understand what you’re trying to do. We appreciate what
you’re trying to do. We really do. But it’s just really not
relevant to the issue at hand.
MS. WHITAKER: I know. I just felt –
10
MR. GALLAGHER: I know you want to be on the record
and you want to be heard.
MS. WHITAKER: The community asked me. I am
actually a student now at Citizen Planning Institute.
MR. GALLAGHER: I understand.
MS. WHITAKER: So I can become more familiar with
this.
MR. GALLAGHER: We are very sensitive to the issues.
But again, we got to stay with zoning, please.
MS. WHITAKER: I will pass it over to other experienced.
Thank you very much.
N.T., 11/1/16, at 31-33 (emphasis added); see O.R. at 251 (Ms. Whitaker’s
appearance statement).
Since no one identified themselves before the Board as appearing on behalf
of the Faithful Laurentians, it remains that Appellant thus failed to establish that the
Faithful Laurentians was an aggrieved party with representational standing in this
matter. See Newtown Heights Civic Ass’n v. Zoning Hearing Bd. of Newtown Twp.,
454 A.2d 1199, 1201 (Pa. Cmwlth. 1983) (association does not have representational
standing to appeal in situation where one of its members participates in a zoning
hearing as a self-identified community member or community representative, rather
than expressly on behalf of the association). Given these facts, we hold that the Trial
Court did not err in granting Appellees’ Motion to Quash.
Next, Appellant appears to claim that the Trial Court incorrectly held that an
organization must establish standing in its own right, in addition to establishing
representational standing.13 However, this is a fundamental misreading of the Trial
13
Specifically, Appellant confusingly asserts that:
The Common Pleas Court essentially held that before an association
may assert representational standing, the association must first
appear at the zoning hearing to establish that it has personal
11
Court’s reasoning. The Trial Court concluded that Appellant “lacked standing to
appeal the Board’s decision because no one formally appeared or otherwise objected
on [its] behalf . . . at the November 1, 2016 [Board] hearing[.]” Tr. Ct. Op. at 6.
Thus, contrary to Appellant’s claim, the Trial Court never held that establishment of
organizational standing was a prerequisite for invoking representational standing.
Appellant next argues that the Trial Court erred in concluding that the Faithful
Laurentians did not have standing to appeal because the “Faithful Laurentians”
fictitious name registration was not actually filed until April 2017, thereby
establishing that the Faithful Laurentians did not exist at the time of the November
1, 2016, Board hearing. Appellant argues that “[a]n unincorporated association does
not require any particular form or filing to be established. An unincorporated
association is not even required to register its name as a fictitious name, see 19 Pa.
Code §17.203” Appellant’s Br. at 24. For this reason, Appellant claims that, since
an unincorporated association can exist without filing any formal paperwork
establishing its legal status or a fictitious name registration, the fact that the Faithful
Laurentians did not file their fictitious name registration until after the Board hearing
is not relevant as to when the Faithful Laurentians was created. Id. at 24-26. We
agree with Appellant in this regard. However, whether the Trial Court was mistaken
on this issue ultimately has no bearing on the resolution of this matter, since no one
standing. In other words, the Court held that the standing of the
members cannot be invoked by an association unless the association
can establish standing on its own. This is directly contrary to the
settled caselaw that it is NOT necessary for an association to have
standing, and therefore that it is NOT necessary for an association
to establish standing at the [Board] to assert representational
standing at a later time.
Appellant’s Br. at 20. We have interpreted Appellant’s argument to the best of our ability.
12
identified themselves at the hearing as appearing on behalf of the Faithful
Laurentians.
Finally, Appellant waived its claim that the City could not challenge
Appellant’s standing, as Appellant did not raise this argument before the Trial Court.
Pa. R.A.P. 302(a). Moreover, this argument fails on its merits, given that the Board
is undoubtedly a component of the City’s governing apparatus, one given life
through Philadelphia’s Home Rule Charter, as well as the Code itself. See Phila.
Home Rule Charter §§ 3-911 and 4-607; Code §§ 14-104 and 14-301(4)
(establishing the Board and its powers); see also Phila. Home Rule Charter § 1-100;14
id. at § 1-102 (vesting the City’s executive and administrative powers in its Mayor
and its “officers, departments, boards and commissions.”).
Conclusion
Therefore, as Appellant did not have standing to appeal the Board’s
November 15, 2016, decision to grant Linden’s sought-after variances, we conclude
that the Trial Court properly granted Appellees’ Motion to Quash and affirm the
Trial Court.
ELLEN CEISLER, Judge
Judge Brobson did not participate in the decision of this case.
14
Pursuant to Section 1 of Article XV of the [Pennsylvania]
Constitution and the Act of the General Assembly, approved April
21, 1949, P.L. 665, of the Commonwealth of Pennsylvania, the City
. . . shall have and may exercise all powers and authority of local
self-government and shall have complete powers of legislation and
administration in relation to its municipal functions, including any
additional powers and authority which may hereafter be granted to
it.
Phila. Home Rule Charter § 1-100.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Faithful Laurentians, by Their :
Trustees Ad Litem, Carolyn Devine :
and Venise Whitaker, :
Appellant :
:
v. : No. 1440 C.D. 2017
:
City of Philadelphia, Zoning Board :
of Adjustment :
:
v. :
:
1600 Berks, LLC :
ORDER
AND NOW, this 12th day of February, 2019, the Court of Common Pleas of
Philadelphia County’s Order in the above-captioned matter, dated August 29, 2017,
is hereby AFFIRMED.
ELLEN CEISLER, Judge