In Re: Appeal of A. Azoulay, I. Azoulay and A. Lavon v. Philadelphia Zoning Board of Adjustment ( 2018 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Appeal of Amit Azoulay,         :
    Idit Azoulay and Assaf Lavon,          :
    Appellants           :
    :
    v.                         :
    :
    Philadelphia Zoning Board of           :
    Adjustment and City of Philadelphia    :
    and Hillcrest Preservation Alliance,   :   No. 1085 C.D. 2017
    LLC, and Friends of The Wissahickon    :   Argued: June 4, 2018
    :
    :
    :
    In Re: Appeal of Amit Azoulay,         :
    Idit Azoulay and Assaf Lavon           :
    :
    v.                         :
    :
    Zoning Board of Adjustment             :
    :
    In Re: Appeal of Hillcrest             :
    Preservation Alliance, LLC             :
    :
    v.                         :
    :
    Zoning Board of Adjustment             :
    :
    Appeal of: Hillcrest Preservation      :   No. 1177 C.D. 2017
    Alliance, LLC                          :   Argued: June 4, 2018
    BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    OPINION
    BY JUDGE FIZZANO CANNON                    FILED: September 7, 2018
    This matter involves consolidated appeals from the July 7, 2017 order
    of the Court of Common Pleas of Philadelphia County (trial court) affirming the
    decision of the City of Philadelphia’s (City) Zoning Board of Adjustment (ZBA)
    which: (i) upheld the issuance of a subdivision permit which approved a lot line
    adjustment resulting in the division of one lot into two lots; (ii) denied an objector’s
    request to amend its appeal to include a challenge to the zoning permit issued for the
    second lot resulting from the subdivision; and (iii) sustained an objector’s appeal to
    the zoning permit issued for the other lot.
    Amit Azoulay, Idit Azoulay and Assaf Lavon (collectively, Owners)
    own property located in the City’s Chestnut Hill neighborhood. ZBA’s Findings of
    Fact (F.F.) No. 7.     The property is zoned RSD-1 (Residential Single-Family
    Detached-1) and is located entirely within the Wissahickon Watershed Overlay
    District (WWOD). F.F. No. 8. The property has never been developed. See F.F.
    No. 9.
    Owners sought to subdivide the property, originally known as 114
    Hillcrest Avenue, into two lots. On May 31, 2013, the City’s Department of
    Licenses & Inspections (L&I) issued Zoning Permit No. 473255 approving “the
    relocation of lot lines to create (2) lots from (1) lot (114 Hillcrest Ave.)” (Subdivision
    Permit). F.F. No. 1. The newly created lots are known as 114 Hillcrest Avenue and
    116 Hillcrest Avenue. See F.F. No. 2.
    Owners then also applied to L&I for permits for “zoning approval for
    the erection of detached structure with cellar” and creation of interior off-street
    parking spaces and “use registration for single family dwelling” on each of the newly
    created lots. Reproduced Record (R.R.) at 65a-66a; see F.F. No. 2. Because the lots
    are located within the WWOD near a “surface water body,” the WWOD’s
    2
    impervious coverage rule was relevant to the permit applications. At the time
    relevant here, the impervious coverage rule provided, “[t]here shall be no new
    impervious ground cover constructed or erected within 200 ft. of the bank of a
    surface water body or within 50 ft. of the center line of a swale within the [WWOD].”
    Phila., Pa., Zoning Code § 14-510(5) (2016) (Zoning Code).1 (Section 510 of the
    Zoning Code, § 14-510, concerns the Wissahickon Watershed Overlay District and
    sometimes may be referred to herein as the WWOD Ordinance.)
    The City’s Zoning Code provides that before L&I can issue any zoning
    or building permits for development in the WWOD, the City’s Planning Commission
    must certify that the proposed development conforms to the requirements of the
    WWOD Ordinance.             Zoning Code § 14-510(8).              The Planning Commission
    approved Owners’ plans, and subsequently, on June 17, 2013, L&I issued Owners
    two “zoning/use permit[s]” for the property, one for each of the newly created lots,
    pursuant to Owners’ application.2 R.R. at 65a-66a; see F.F. No. 2. The zoning/use
    1
    We note this definition in the Zoning Code was amended after the parties appealed to this
    Court. See Phila., Pa., City Council Bill No. 180346-A § 14-510(5) (July 18, 2018). The Zoning
    Code now provides,
    There shall be no new impervious ground cover constructed or erected within 200
    ft. of the bank of a stream or within 50 ft. of the center line of a swale within the
    [WWOD]. Streams and [s]wales that have been buried in sewer pipe, or in an
    artificial, concrete and stone channel, shall be excluded.
    Zoning Code § 14-510(5) (amendments in italics). This amendment was not made retroactive.
    See City Council Bill No. 180346-A § 2 (stating “[t]his [o]rdinance shall take effect immediately”);
    cf. Section 1926 of the Statutory Construction Act of 1972 (stating no statute shall be construed to
    be retroactive unless clearly and manifestly intended by the General Assembly). Therefore, we
    must apply the Zoning Code as written at the time of Owners’ permit applications.
    2
    The permits stated that they do not authorize any construction until related construction
    permits are issued. R.R. at 65a-66a.
    3
    permits were Permit No. 476557 (114 Permit) and Permit No. 476558 (116 Permit).
    F.F. No. 2.
    On June 27, 2013, the Hillcrest Preservation Alliance, LLC (Objector)
    filed a timely appeal challenging L&I’s issuance of the Subdivision Permit and the
    114 Permit.3 F.F. No. 3. The ZBA held four public hearings on the appeal. See F.F.
    No. 4. At the first hearing, which was held on February 5, 2014, the issue arose as
    to whether Objector appealed the 116 Permit. See F.F. Nos. 15-17. On February
    26, 2014, Objector’s counsel submitted an amended appeal that included the 116
    Permit. The ZBA reserved decision on the amended appeal. The ZBA held
    additional public hearings on the appeal on March 25, 2015, April 29, 2015, and July
    8, 2015. F.F. No. 4. Subsequently, the ZBA issued a decision in which it: (i) denied
    Objector’s appeal of the Subdivision Permit; (ii) denied Objector’s request to amend
    its appeal to include the 116 Permit; and (iii) sustained Objector’s appeal of the 114
    Permit, concluding that the Planning Commission erred in treating the proposed
    development as permitted due to the inclusion of green elements and that such
    interpretation disregards the plain language of the WWOD Ordinance and allows for
    the introduction of new impervious elements within the 200-foot setback. F.F. No.
    6, see Conclusions of Law (C.L.) No. 23.
    Owners and Objector filed cross-appeals from the ZBA’s decision with
    the trial court, which consolidated the appeals. Owners, Objector and the City filed
    briefs, and the trial court heard oral arguments. Objector challenged the ZBA’s
    denial of Objector’s appeal of the Subdivision Permit and the ZBA’s denial of
    Objector’s request to amend its appeal to include the 116 Permit. Owners and the
    3
    Objector consists of “a group of concerned neighbors” and was formed a few days before
    the appeal was filed. F.F. No. 13.
    4
    City challenged the ZBA’s invalidation of the 114 Permit. Subsequently, the trial
    court issued an order affirming all three determinations of the ZBA.
    Both Owners and Objector filed appeals with this Court, which are
    consolidated for disposition.4 9/27/17 Order.             On appeal, the parties raise the
    following issues: (i) whether the ZBA erred when it denied Objector’s appeal from
    the Subdivision Permit and upheld the issuance of the Subdivision Permit; (ii)
    whether the ZBA erred when it refused to allow Objector to amend its notice of
    appeal to include the 116 Permit; and (iii) whether the ZBA erred in sustaining
    Objector’s appeal and concluding that the 114 Permit was erroneously issued. With
    respect to the final issue, we are asked to decide whether the ZBA was required to
    give deference to the Planning Commission’s initial determination that there was no
    new impervious ground cover or, its later claim at the hearing, that the proposed
    development was not located within the 200-foot setback.5
    4
    Where, as here, the trial court does not take additional evidence, this Court’s review is
    limited to determining whether the zoning board committed an error of law or an abuse of
    discretion. See Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 
    462 A.2d 637
    , 639 (Pa.
    1983). A zoning board abuses its discretion “only if its findings are not supported by substantial
    evidence.” 
    Id. at 640.
    Substantial evidence is such evidence a reasonable mind might accept as
    adequate to support a conclusion. 
    Id. 5 The
    City, although an appellee here, has filed a brief in support of Owners’ (designated
    appellants) position with respect to the 114 Permit only. See Pa.R.A.P. 908 (providing rules for
    appellees who support the appellants’ position). The City does not take a position on the other two
    issues.
    The ZBA and the Friends of the Wissahickon were precluded from filing briefs and
    participating in oral argument due to their failure to file briefs as ordered by this Court. 3/7/18
    Order.
    5
    I.     Subdivision Permit
    Objector argues that the ZBA erred when it denied Objector’s appeal
    from the issuance of the Subdivision Permit. Objector maintains that the subdivision
    did not comply with the WWOD Ordinance’s requirements concerning the 200-foot
    setback from watercourses, which Objector contends is a dimensional requirement
    akin to a front, side or rear yard setback.
    On May 31, 2013, L&I issued Zoning Permit No. 473255 approving
    “the relocation of lot lines to create (2) lots from (1) lot[.]” F.F. No. 1. A lot
    adjustment is “[a] subdivision[6] that results in the creation of new lots that all have
    street frontage on an existing legally open street shown on the City Plan; or the
    relocation of existing lot lines, including the combination of existing lots into fewer
    or differently configured lots.”           Zoning Code § 14-203(170).               The Planning
    Commission has the authority to provide prerequisite approvals for zoning permits
    regarding lot adjustments. Zoning Code § 14-301(3)(c)(.1)(.a). The Planning
    Commission shall approve the lot adjustment if it complies with the lot dimension
    and street frontage requirements in the Code. Zoning Code § 14-304(6)(c).
    Notably, the WWOD Ordinance provisions only apply “during and
    after construction and to all construction site clearing and earth moving within the
    6
    The Zoning Code defines subdivision as:
    A division of any part, lot, or area of land by the owner or his or her
    agent into two or more lots, or changes in existing lot lines, for the
    purpose of conveyance, transfer, improvement, or sale with or
    without appurtenant roads, streets, lanes, driveways, and ways
    dedicated or intended to be dedicated to public use, or the use of
    purchasers or owners of lots fronting on them. The term subdivision
    includes re-subdivision and, as appropriate, shall refer to the process
    of subdividing land or to the land so subdivided.
    Zoning Code § 14-203(328).
    6
    Wissahickon Watershed.” Zoning Code § 14-510(2). The subdivision, or lot
    adjustment, involves only the adjustment of lot lines and does not involve
    construction, site clearing or earth moving. The 200-foot setback is not applicable
    to the Subdivision Permit because no buildings or any other type of “impervious
    ground cover” was proposed as part of that application. Therefore, the ZBA did not
    err when it concluded that the WWOD Ordinance provisions were not applicable to
    Owners’ subdivision application. Accordingly, the trial court did not err when it
    affirmed the ZBA’s decision denying Objector’s appeal of the issuance of the
    Subdivision Permit.
    II.    Application to Amend Appeal
    Objector argues that the ZBA erred by refusing to allow Objector to
    amend its appeal. Objector acknowledges that it did not initially appeal the 116
    Permit at the same time it appealed the Subdivision Permit and the 114 Permit,
    explaining that the 116 Hillcrest Avenue property was never posted with the permit.
    Objector’s Brief at 54-55. Objector maintains that there is no evidence in the record
    to establish a conspicuous posting of all three permits, asserting there is not a single
    picture showing separate postings at the property. Objector further argues that the
    ZBA erred in construing its request to amend its appeal as the institution of a new
    appeal. Objector asserts that its Application for Appeal referenced all permits for
    both lots, and points to its statement in its initial appeal that “[Owners] propose[] to
    create two lots from one lot, which is identified as 114 Hillcrest Avenue (the
    “Subject Property”), for the purpose of developing two (2) single-family detached
    structures” to support its claim that its request was simply a clarification of an
    existing action, not a new action. Objector’s Brief at 58. Objector also asserts that
    Owners were not prejudiced by Objector’s request to amend, pointing out that the
    7
    ZBA reserved ruling on Objector’s application and that Owners presented evidence
    on both parcels at the hearings.7
    The Code provides:
    Within five (5) business days of receipt of any permit
    under this Zoning Code, including any conditional zoning
    permit, the permit holder shall post a true copy of the
    permit on the subject property, along each street frontage
    (unless impractical) in a place and manner conspicuous to
    the public, for no less than thirty (30) days.
    Zoning Code § 14-303(6)(f)(.1). The Zoning Code further provides:
    Any appeal of an L&I decision must be filed with the
    Zoning Board within 30 days of the date of L&I’s
    decision. Where the applicant fails to post the permit in
    compliance with § 14-303(6)(f) (Posting of Permits), any
    person other than the applicant must file any appeal within
    30 days of constructive notice of the L&I decision. All
    appeals must be filed through a written notice of appeal
    stating specifically how L&I’s decision is inconsistent
    with the requirements of this Zoning Code or the basis for
    the requested variance or other relief.
    Zoning Code § 14-303(15)(a)(.3).
    The ZBA received evidence from Owners regarding the posting of the
    permits. See F.F. Nos. 37-38. The evidence included photographs as well as
    testimony. 
    Id. The fact
    that we may not be able to see the writing on the photographs
    of the postings in the record does not mean there is not substantial evidence. The
    7
    In support of its argument, Objector cites provisions of the Pennsylvania Municipalities
    Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202,
    and case law interpreting the MPC. The MPC, however, is not applicable to zoning in the City.
    Society Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of Phila., 
    729 A.2d 117
    , 120
    (Pa. Cmwlth. 1999).
    8
    ZBA credited Owners’ evidence, including their testimony regarding posting the
    permits on the properties, and concluded that Owners established that they fully
    complied with the posting requirements of the Zoning Code. C.L. No. 3. It is well-
    settled that the ZBA is the arbiter of credibility. Manayunk Neighborhood Council
    v. Zoning Bd. of Adjustment, 
    815 A.2d 652
    , 658 (Pa. Cmwlth. 2002). This Court
    may not alter those findings.
    Because Owners properly posted the permits on the property, Objector
    was required to file its appeal within 30 days of the issuance of the permits. See
    Zoning Code § 14-303(15)(a)(.3). Objector failed to do so. Whether Owners were
    prejudiced is irrelevant; the Zoning Code provides no such exception for one’s
    failure to file a timely appeal. Objector admitted that its initial Application for
    Appeal referenced permit number 473255 (Subdivision Permit) and permit number
    476557 (114 Permit) but did not expressly reference permit number 476558 (116
    Permit). R.R. at 148a. Objector’s reference in the text of the appeal to the
    development of “two single family homes” at 114 Hillcrest Avenue does not
    constitute filing an appeal of the 116 Permit. Additionally, we note that at the first
    hearing, Objector’s counsel described the Application for Appeal as being filed
    within the 30 days “from the issuance of the two [p]ermits at issue in the case here
    today, which were issued on May 31, 2013, and June 17, 2013.” R.R. at 276a
    (emphasis added). Therefore, we conclude that the ZBA did not err or abuse its
    discretion by determining that Objector’s request was a new appeal rather than a
    simple amendment and denying Objector’s request to amend its appeal.
    III. 114 Permit
    The arguments with respect to the 114 Permit center around the
    WWOD Ordinance’s impervious coverage rule. Again, at the relevant time, the
    9
    impervious coverage rule provided, “[t]here shall be no new impervious ground
    cover constructed or erected within 200 ft. of the bank of a surface water body or
    within 50 ft. of the center line of a swale within the [WWOD].” Zoning Code § 14-
    510(5). The Planning Commission approved the plans for construction of the single
    family home based on its determination that the proposed development was not
    impervious because it included green elements, such as a green roof8 and porous
    paving. See F.F. Nos. 26(iii)-27, 31, 55; C.L. No. 23. L&I subsequently issued the
    zoning permits, and Objector appealed the 114 Permit.
    After the hearings, the ZBA issued its decision sustaining Objector’s
    appeal of the 114 Permit. The ZBA concluded that the proposed development
    includes impervious ground cover within the 200-foot buffer. C.L. No. 18. The
    ZBA concluded that the Planning Commission erred in treating the proposed
    development as permitted due to the inclusion of green elements because such
    interpretation disregards the plain language of the ordinance and allows for the
    introduction of new impervious coverage within the 200-foot setback. C.L. No. 23.
    The trial court affirmed the ZBA on this issue.
    8
    At the time of Owners’ permit application and the hearings in this matter, the Zoning
    Code did not contain a definition of green roof. A green roof has been commonly defined as
    follows: (i) “[a] roof covered with vegetation, especially one intended to provide environmental
    benefits.”            “green        roof,”     English:     Oxford        Living     Dictionaries,
    https://en.oxforddictionaries.com/definition/us/green_roof (last visited Aug. 16, 2018); (ii) “[a]
    roof of a building that is partially or completely covered with vegetation and a growing medium,
    planted over a waterproofing membrane. It may also include additional layers such as a root barrier
    and      drainage      and       irrigation    systems.”          Green       roof,    Wikipedia,
    https://en.wikipedia.org/wiki/Green_roof (last visited Aug. 16, 2018). The Zoning Code currently
    defines green roof as “[a] treatment to a rooftop that supports living vegetation and includes a
    synthetic, high quality waterproof membrane, drainage layer, root barrier, soil layer, and
    vegetation layer.” Zoning Code § 14-203(138.2), added by Phila., Pa., City Council Bill No.
    150745-A (Dec. 23, 2015).
    10
    Before this Court, Owners and the City argue that the trial court erred
    in affirming the ZBA’s decision sustaining Objector’s appeal of the issuance of the
    114 Permit. They argue that the issuance of the permit was proper on either of two
    grounds: (i) that there was no new impervious coverage proposed or (ii) if there was
    impervious coverage, it would not be constructed within 200 feet of a surface water
    body. They argue that the ZBA erred because it should have given deference to the
    Planning Commission’s determination that the plans complied with the WWOD
    Ordinance. They maintain that the Planning Commission’s interpretation of the
    WWOD Ordinance is entitled to deference because, according to Owners and the
    City, the Planning Commission is charged with interpreting and enforcing the
    WWOD Ordinance and because the Planning Commission’s interpretation was
    reasonable. In support of their position, they rely primarily on this Court’s decision
    in Turchi v. Philadelphia Board of License and Inspection Review, 
    20 A.3d 586
    (Pa.
    Cmwlth. 2011), in which this Court held that, on appeal to the Philadelphia Board
    of License and Inspection Review (Review Board) from the Philadelphia Historical
    Commission’s (Historical Commission) issuance of a permit, the Review Board had
    to give deference to the Historical Commission’s interpretation of operative terms
    in the City’s Historic Preservation Ordinance.9 We held that deference was proper,
    in part, because the Historical Commission had the policy-making role and was
    charged with administering the ordinance, whereas the Review Board had quasi-
    judicial review authority, and because the Historical Commission possessed greater
    expertise in the area of historic preservation. 
    Id. at 593-95.
           9
    In Turchi, the Historical Commission determined that the applicants’ proposed
    renovations were not a “demolition in significant part” and, therefore, the project was an
    “alteration” and was “appropriate” under the Historic Preservation Ordinance. 
    Turchi, 20 A.3d at 589
    . The Review Board disagreed with the Historical Commission’s interpretation of those terms
    contained in the ordinance and reversed the Historical Commission. 
    Id. We held
    that was error.
    
    Id. at 594.
                                                  11
    Courts give “substantial deference to an agency’s interpretation of a
    statute the agency is charged with implementing and enforcing.” Schuylkill Twp. v.
    Pa. Builders Ass’n, 
    7 A.3d 249
    , 253 (Pa. 2010) (internal quotation marks omitted);
    see also Turchi (stating an agency’s construction of its own regulations is entitled to
    deference). “[A]n administrative agency’s interpretation of the statute it is charged
    to administer is entitled to deference on appellate review absent fraud, bad faith,
    abuse of discretion[] or clearly arbitrary action.” 
    Turchi, 20 A.3d at 591
    (internal
    quotation marks omitted). Interpretations of an ordinance that are entitled to
    deference “become of controlling weight unless they are plainly erroneous or
    inconsistent” with the ordinance. 
    Id. at 594
    (internal punctuation omitted); see
    Lancaster Cty. v. Pa. Labor Relations Bd., 
    94 A.3d 979
    , 986 (Pa. 2014) (stating that
    an administrative agency’s interpretation is to be given controlling weight unless
    clearly erroneous). “However, when an administrative agency’s interpretation is
    inconsistent with the statute itself, or when the statute is unambiguous, such
    administrative interpretation carries little weight.” 
    Id. The WWOD
    is an overlay district in the Zoning Code. Zoning Code §
    14-510. L&I is charged with the power and duty to administer and enforce the
    Zoning Code except where any powers are specifically granted to another
    commission under the Zoning Code. Zoning Code § 14-103(3)(a). We recognize
    that under the Zoning Code, the Planning Commission has the authority to provide
    “prerequisite approval” for zoning permits in the WWOD. See Zoning Code § 14-
    301(3)(c)(.1)(.h). Additionally, L&I may not issue any permits in the WWOD until
    the Planning Commission has “certified” to L&I that the proposed development
    conforms to the requirements of the WWOD Ordinance. Zoning Code § 14-510(8).
    Nonetheless, even if we were to conclude that the Planning Commission is charged
    12
    with implementing and enforcing the WWOD Ordinance and possesses a special
    expertise warranting deference to its interpretations under Turchi, the Planning
    Commission’s interpretations here are not entitled to deference because, as will be
    explained: (i) its decision to allow development within the 200-foot setback due to
    the incorporation of green elements is plainly erroneous and inconsistent with the
    plain language of the ordinance which prohibits any new impervious ground cover
    within the 200-foot setback; and (ii) its review of the plan with respect to the 200-
    foot setback was inconsistent and arbitrary.
    a. Impervious Ground Cover
    Here, the Planning Commission approved the plans for construction of
    the single-family home based on its conclusion that the proposed development was
    not new impervious ground cover because it included green elements, such as a
    green roof and porous paving. Owners and the City argue that the ZBA erred by not
    giving deference to the Planning Commission’s determination that there was no
    impervious ground cover. Owners and the City contend that the ZBA failed to defer
    to the Planning Commission’s definition of “impervious ground cover,” under which
    green roofs, porous paving and other permeable surfaces are not impervious. City’s
    Brief at 19; see Owners’ Brief at 12. In support of this argument, the City cites to
    an apparently repealed regulation concerning a “2.6 inch rule.” City’s Brief at 20.
    The City states that the Planning Commission
    had to interpret “impervious ground cover” in order to be
    able to apply the watershed ordinance. To do so, the
    Planning Commission adopted in 1976 a numerical
    standard: effectively, as long as a surface can absorb at
    least 2.6 inches of rain without runoff, it is not
    ‘impervious.’
    13
    City’s Brief at 20 (emphasis added).10 Meanwhile, Owners contend that a Planning
    Commission representative clearly stated that “if a project manages 2.64 inches per
    hour, the [Planning Commission] will consider that project ‘pervious’ which is the
    determination made for the Hillcrest Development” and that this standard is based
    on consultation with the Water Department. Owners’ Brief at 46-47 (citing Chiu’s
    testimony at R.R. at 666a & 684a) (emphasis added); see also Owners’ Brief at 12-
    13. While Owners and the City cite different sources, their argument is essentially
    the same, i.e., they maintain that the Planning Commission has an infiltration
    requirement (which we will refer to as the 2.64 inch rule) and that the Planning
    Commission applies this to decide what is “impervious” under the WWOD
    Ordinance.      They contend the ZBA erred in not giving deference to this
    interpretation of “impervious” and to the Planning Commission’s determination that
    the plan did not introduce any new impervious ground cover.
    At the first hearing, held February 5, 2014, the City presented the
    testimony of William Kramer, Director of the Planning Commission’s Development
    Planning Division. F.F. No. 26. Kramer said the Commission approved the
    10
    The City cites to both “Development Regulations ¶ I.B.5” as well as Planning
    Commission representative Sara Chiu’s testimony. See City’s Brief at 20. We note, however, that
    effective July 30, 2012, the Planning Commission adopted new regulations. Those regulations
    provide, “[a]ll regulations heretofore adopted by the City Planning Commission are hereby
    superseded.” Phila., Pa., Planning Comm’n Regulation § 1.2 (2016); see also R.R. at 168a
    (containing memo from William Kramer, Director of the Planning Commission’s Development
    Planning Division, to the Chief Deputy City Solicitor in which Kramer states: (i) that the
    Wissahickon Watershed regulations that were discussed at the hearing were approved by the
    Planning Commission on July 1, 1975, but that in 2012, the Planning Commission adopted new
    regulations which included appealing the prior regulations; and (ii) that he reviewed the entire
    document (regulations) and it contains no specific regulations with regard to the Wissahickon
    Watershed controls). Additionally, when Chiu was asked about the development regulations, she
    said that they were no longer used by the Planning Commission and that for the stormwater
    calculation part, the Planning Commission defers to the Water Department. R.R. at 674a.
    14
    development plan using a three-prong review: first, the Commission determined that
    a maximum of 27% impervious coverage was permitted on the entire site, which
    included 13.5% on one lot and 16.7% on the other lot;11 second, the Commission
    reviewed the steep slopes;12 and third, the Commission reviewed the plan for
    anything located within 200 feet of an open water body or 50 feet of a swale. F.F.
    No. 26; R.R. at 342a-43a. Kramer testified that the plans indicated that “these
    things” were within 200 feet of a swale and open body of water, but explained that
    “our interpretation on the particular section of the Code is because these were
    pervious coverage sidewalks, because these were green roofs on the buildings,
    themselves, we did not consider them to be impervious coverage, and therefore, we
    gave it a stamp of approval.” R.R. at 343a-44a; see F.F. Nos. 26 & 31; R.R. at 346a-
    47a. When questioned about other sections of the WWOD Ordinance that permit
    impervious coverage, Kramer agreed that within the 200-foot setback area, no new
    impervious construction is allowed. R.R. at 346a. Kramer agreed that under the
    Zoning Code, including the 200-foot setback provision, the proposed construction
    was permissible because it resulted in no new impervious construction. F.F. No. 27,
    R.R. at 346a. He explained there was no new impervious ground cover within the
    200-foot setback “because the buildings were being built with green roof and porous
    pavement for the driveway components of this plan.” R.R. at 367a. Kramer
    explained that the determination was made by internal staff, not the Planning
    11
    The WWOD allows for impervious coverage outside of the 200-foot setback but imposes
    coverage limitations. See Zoning Code § 14-510(6).
    12
    This is not an issue before this Court.
    15
    Commission itself.13 R.R. at 368a. Kramer did not testify about a 2.64 inch per hour
    rule. See R.R. at 341a-92a.
    Kramer also testified that as part of the planning review process, the
    Planning Commission requires that “any development . . . have conceptual approval
    from the Water Department[,] [which] . . . is primarily concerned with stormwater
    management.” R.R. at 348a. Kramer stated that the Water Department’s conceptual
    approval was used by his office when it decided what “was permeable, and therefore
    was permissible within this distance of the open body of water.” F.F. No. 28; R.R.
    at 348a.
    On cross-examination, Kramer admitted that his staff “essentially”
    approved the plan without knowing the technical details of what the green elements
    are made of, stating “[w]e relied a lot on the handling of the storm water management
    review that the Water Department did to determine that it was porous and permeable,
    and that was the interpretation.” R.R. at 377a. Kramer agreed that porous pavement
    is not the same as natural infiltration of water into the ground. R.R. at 376a. Kramer
    noted that the Water Department only completed a conceptual review and had not
    “moved to building permit components” and had not completed a full technical
    review of the stormwater management plan. R.R. at 387a-88a.
    Kramer admitted that the Planning Commission has no written internal
    policies on how green elements, green roofs or retention basins are allowed in the
    200-foot setback. R.R. at 373a. Additionally, when questioned as to whether there
    was impervious coverage, Kramer admitted that “[t]here may be a small amount with
    13
    We note the Planning Commission’s regulations authorize the Executive Director “to
    provide, on behalf of the [Planning] Commission, prerequisite approvals and recommendations on
    zoning permits and building permits in order to fulfill the Commission’s duties pursuant to the
    Zoning Code.” Planning Comm’n Regulation § 9.1.1. The Executive Director is defined as “[t]he
    Executive Director of the [Planning] Commission, or his or her staff designee.” Planning Comm’n
    Regulation § 2.5.
    16
    retaining wall tops that I can’t say definitively there isn’t any, but it was minimal.”
    R.R. at 373a-74a. He further agreed that the plan indicated that there are stone
    retaining walls within the “interior of the property, not just . . . along the exterior of
    the parcel[,]” as well as concrete steps. R.R. at 374a-75a. Kramer stated that he
    understands there is such a thing as porous concrete but agreed that it was not labeled
    as such on the plans. R.R. at 391a-92a.
    At the February 5, 2014 hearing, Objector presented the expert
    testimony of land planner George Ritter, who stated that he “practiced in the field of
    land planning for more than 30 years . . . .” F.F. No. 18, R.R. at 294a. Ritter testified
    that he reviewed, among other things, the proposed plan. Ritter noted that the plan
    “proposed green infrastructure, a green roof[,] . . . permeable pavement . . . and two
    rain gardens.”    F.F. No. 23, R.R. at 316a.         He disagreed with the Planning
    Commission’s conclusion that those elements eliminated all impervious cover. F.F.
    No. 23, R.R. at 316a-17a. He stated that even if one accepts the argument on green
    infrastructure, new impervious ground cover still exists in the plans, because the
    stairs, sidewalks, retaining walls and curbs are not labelled on the plans as pervious.
    R.R. at 317a. Ritter also stated that his review of the plans showed there was
    impervious ground cover in violation of the 200-foot setback. F.F. No. 24, R.R. at
    319a.    Ritter acknowledged that green infrastructure can help with storm
    management, but stated storm management is a different issue. R.R. at 320a.
    At a subsequent hearing held on April 29, 2015, the City also called
    Christine Majoram from the City’s Water Department. F.F. No. 42.                Majoram
    testified that the Water Department’s goal is to approve a conceptual plan where
    stormwater management will be part of the property. F.F. No. 42. When asked to
    explain what conceptual approval meant, Majoram stated, “[i]t is a conceptual plan.
    17
    . . . It is showing the intent of how stormwater will be managed.” R.R. at 537a.
    Majoram explained that the next step before issuing a building permit would be for
    the Water Department to issue a prerequisite approval and that one of those
    approvals is the stormwater management technical approval, “which is a much more
    in-depth technical analysis and calculations that get into the specific design of
    stormwater management systems . . . .” R.R. at 538a. Majoram explained that the
    Water Department has regulations that deal with stormwater management. R.R. at
    539a-40a. She stated that the Wissahickon Watershed requirements are under the
    Planning Commission’s purview and that the Water Department coordinates closely
    with the Planning Commission when a project is located within the watershed. Id.;
    see F.F. No. 42. Majoram stated that the Water Department regulations are more
    stringent than the Wissahickon Watershed requirements. R.R. at 553a; see F.F. No.
    43; see also R.R. at 546a-47a. She agreed that the Water Department’s review does
    not include review for compliance with zoning provisions and stated the review is
    for feasibility with meeting stormwater regulations. R.R. at 551a, 553a, 555a. She
    stated she had no knowledge of whether the plan included new impervious coverage.
    R.R. at 555a. Majoram explained that the green roof “allow[s] for the plant material
    and the media to allow for transportation, but it’s not necessarily letting that water
    go into the ground.” R.R. at 577a. Majoram did not discuss a 2.64 inch rule. See
    generally R.R. at 534a-85a.
    Also at the April 29, 2015 hearing, Owners presented the testimony of
    Edmund Doubleday, a Leadership in Energy and Environmental Design (LEED)
    certified registered professional civil engineer. F.F. No. 49. He testified that the
    plan showed a green roof detail, driveways constructed of permeable paver material
    18
    and a higher retention basin that accounts for all the remainder of the runoff and that
    allows runoff to be infiltrated back into the sewer. F.F. No. 50.
    At the April 29, 2015 hearing and later at a July 8, 2015 hearing,
    Owners also presented the expert testimony of Timothy Woodrow, a professional
    engineer. See F.F. No. 65, R.R. at 74a. Woodrow testified that it was reasonable to
    conclude that the proposed construction would not impede the natural infiltration of
    surface water into the soil. F.F. No. 66.
    At the fourth and final hearing on July 8, 2015, the City, at the Board’s
    request, presented the testimony of Sara Chiu, a City Planner for the Planning
    Commission, who stamped the plan for 114 Hillcrest Avenue as approved and
    explained the Commission’s process in approving the plan. R.R. at 660a-61a; see
    F.F. Nos. 52-53. Chiu explained that when she receives a plan for a project within
    the WWOD, she reviews the plan for impervious coverage limitations, setback from
    a watercourse and steep slopes. R.R. at 670a, see R.R. at 660a-61a.
    Chiu stated that when she reviewed the plan initially, she determined
    that the development was within the 200-foot setback, but that she approved the plan
    because she concluded there was no new impervious ground cover due to the use of
    green elements. F.F. Nos. 54-55; see R.R. at 664a, 669a. Chiu testified as to why
    she allowed construction within the 200-foot setback:
    So for the [Zoning] Code language there’s no new
    impervious ground cover, we allowed [sic] to erect it
    within the 200 feet. With this proposal, they’re proposing
    green roof. They’re proposing pervious driveway.
    They’re proposing using pervious concrete. So that has a
    plan attached – a stormwater plan was approved ahead of
    time when they come [sic] in. So all the stormwater runoff
    situation has been resolved.
    R.R. at 664a.
    19
    When questioned as to what guidance she uses to determine whether
    there is any new impervious ground cover, Chiu stated that the infiltration
    requirement is not in the Zoning Code and “is in the older regulations that we have
    been using.” R.R. at 666a. When questioned as to whether it was in a Planning
    Commission regulation, Chiu said, “I would say it’s a policy because that infiltration
    requirement is an understanding between us and the Water Department.” R.R. at
    666a.   Chiu also testified that the City Water Department has its stormwater
    regulations that are well accepted so the Planning Commission uses those as a
    supplement. R.R. at 673a. Chiu explained that the Water Department’s stormwater
    regulations concerning the WWOD require the first 2.64 inches per hour of
    stormwater runoff to infiltrate.     R.R. at 674a.     Chiu was also asked about
    development regulations and whether they were still used by the Planning
    Commission. R.R. at 674a. Chiu replied, “No, actually not, because for the
    stormwater calculation part we defer to the Water Department for them [sic] to
    review.” R.R. at 674a. Chiu explained that the stormwater regulations are a “more
    complete package.” R.R at 674a. Chiu was asked later whether she was given any
    “guidance on what constitutes impervious when [she] determined that a green roof
    would be pervious coverage[.]” R.R. at 684a. Chiu replied, “[i]mpervious, if they
    can manage the 2.64 inch per hour run off rate, it’s pretty good pervious material
    already, because you basically have the water draining down, not creating a runoff
    to the surrounding properties or to the city streets that is draining into the public
    sewer.” R.R. at 684a.
    The Zoning Code defines “impervious ground cover” as “[a]ny
    building, pavement, or other material that impedes the natural infiltration of surface
    water into the soil. Impervious ground cover includes, but is not limited to,
    20
    structures, swimming pools, paved and other non-permeable patios, walks,
    driveways, parking areas, streets, sidewalks, and any other non-permeable ground
    cover.”     Zoning Code § 14-203(154).14             Terms such as “impede” and “non-
    permeable” are not defined in the Zoning Code. The ZBA noted that, according to
    its common usage, “impede” means “to interfere with or slow the progress of[.]”
    C.L. No. 20 (quoting Merriam-Webster Online Dictionary).15 Therefore, something
    is impervious if it interferes with or slows the natural infiltration of surface water
    into the soil. Consequently, to know if a structure or material is impervious, one
    needs to know if that particular structure or material slows the natural infiltration of
    surface water into the soil.
    Kramer admitted that porous pavement is not the same as the natural
    infiltration of water into the ground, but that the infiltration rate for the proposed
    material was never specifically calculated by the Water Department or the Planning
    Commission. Chiu’s testimony indicates that, when determining the proposed
    14
    This section of the Zoning Code was amended after the parties filed their appeal with
    this Court. See Phila., Pa., City Council Bill No. 180346-A § 14-203(154) (July 18, 2018). The
    Zoning Code now defines impervious ground cover as:
    [a]ny building, pavement, or other material that substantially bars the natural
    infiltration of surface water into the soil. Manufactured materials demonstrated to
    be pervious shall not be considered impervious ground cover. The Commission may
    promulgate regulations regarding the types of cover that may be considered
    impervious, consistent with the intent of this definition.
    Zoning Code § 14-203(154) (amendments in italics). This amendment was not made retroactive.
    See City Council Bill No. 180346-A § 2 (stating “[t]his [o]rdinance shall take effect immediately”).
    Therefore, we must apply the definition in the Zoning Code as written at the time of Owners’
    permit application.
    15
    Where terms are not defined in a statute, they should be “construed according to their
    common and approved usage.” Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C.S.
    § 1903. Courts generally use dictionaries as a source for determining the common and approved
    usage of a term. Love v. City of Philadelphia, 
    543 A.2d 531
    , 532 (Pa. 1988).
    21
    development was impervious, the Planning Commission applied an infiltration
    requirement that was in “older regulations” and was based on an understanding with
    the Water Department. We note that the older development regulations, requiring a
    surface to absorb at least 2.6 inches of rain without runoff to be deemed pervious,
    are not in effect,16 although Chiu states that the “2.64 inch rule” continues as the
    policy of the Planning Commission because that “infiltration requirement is an
    understanding between [the Planning Commission] and the Water Department.”
    R.R. at 666a; see R.R. at 674a. Additionally, Chiu explained that the Water
    Department’s stormwater regulations concerning the WWOD Ordinance require the
    first 2.64 inches of stormwater runoff to infiltrate. R.R. at 674a. Chiu testified that
    if the property can manage the 2.64 inch per hour runoff rate, she would consider
    “it” pervious. R.R. at 684a.
    Even accepting the infiltration rate requirement as the Planning
    Commission’s policy, here, the policy utilized concerns a determination as to the
    stormwater runoff for the entire property. Such determination is irrelevant to
    whether there is impervious ground cover.            The Zoning Code definition of
    impervious ground cover states that a “building, pavement, or other material” is
    impervious if it “impedes the natural infiltration of surface water into the soil.”
    Zoning Code § 14-203(154). The City in its brief recognizes that “as long as a
    surface can absorb at least 2.6 inches of rain without runoff, it is not impervious.”
    City’s Brief at 20 (emphasis added). The record does not reflect any analysis of the
    surfaces within the 200-foot setback in this case.
    It is apparent from the testimony that the 2.64 inch infiltration rate was
    applied to the project, not to the surface of any specific proposed material or
    16
    See supra pp. 13-14 & note 10.
    22
    structure. Indeed, Kramer admitted that his staff “essentially” approved the plan
    without knowing the technical details of what the green elements are made of, stating
    that the Planning Commission “relied a lot” on the Water Department’s conceptual
    approval of the stormwater management for the property to determine that the
    proposed elements of the construction were permeable. See F.F. No. 28; R.R. at
    348a. Chiu testified similarly. See R.R. at 673a-74a, 684a.
    The Planning Commission’s review of the plan never included an
    analysis of whether the construction elements proposed within the 200-foot setback,
    “green” or otherwise, were individually impervious. Further, nothing in the record
    indicates that the Water Department made such a review. Indeed, Majoram, the
    Water Department representative, stated that the stormwater calculations are
    separate and different from the Zoning Code provisions regarding impervious
    coverage and that the Water Department’s approval was only a conceptual approval
    of the plan. See R.R. at 537a-38a, 551a, 553a, 555a. Majoram also noted that she
    is unaware of whether the plan included new impervious coverage. R.R. at 555a.
    The plain language of the WWOD Ordinance requires that there be no
    new impervious ground cover. Thus, we reject Owners’ argument that if the project
    manages 2.64 inches per hour, the proposed impervious ground cover, i.e., the
    materials and structures, within the 200-foot setback should be considered pervious.
    In sum, there is nothing to equate this infiltration rate requirement for the property
    and the management of stormwater for the project with the absence of impervious
    ground cover.
    The Zoning Code, at the time of Owners’ permit application, did not
    contain a definition of green roof, and the Planning Commission regulations do not
    23
    contain a definition of green roof; therefore, we must resort to its common usage.17
    A green roof is commonly defined as “[a] roof covered with vegetation, especially
    one intended to provide environmental benefits.” “green roof,” English: Oxford
    Living Dictionaries, https://en.oxforddictionaries.com/definition/us/green_roof (last
    visited Aug. 16, 2018).           The traditional roof still exists, albeit covered with
    vegetation. See supra note 8. A green roof does not make the impervious elements
    of the underlying roof and building pervious. Majoram testified that the “water is
    falling into a stormwater management practice, so it’s being managed to some
    degree in that green roof.” R.R. at 581a. In other words, the green roof is a tool that
    simply manages the stormwater infiltration for that surface. Majoram explained that
    the green roof “allow[s] for the plant material and the media to allow for
    transportation, but it’s not necessarily letting that water go into the ground.” R.R. at
    577a. In this case, the record is devoid of any analysis as to the particular effect
    that the proposed green roof has on the structure upon which it is situated or upon
    the natural infiltration of surface water into the soil. The only analysis conducted by
    the Water Department, and relied upon by the Planning Commission, was the
    stormwater calculation for the “project” as a whole.
    To assume that a particular structure’s or material’s infiltration rate is
    at least 2.64 inches per hour, or to assume that a structure or material does not impede
    the natural flow of infiltration into the soil because the infiltration rate for the project
    is at least 2.64 inches per hour, is both arbitrary and inconsistent with the plain
    language of the ordinance requiring no new impervious ground cover. Therefore,
    the Planning Commission’s interpretation was not entitled to deference.                 See
    Lancaster 
    Cty., 94 A.3d at 986
    (stating an administrative agency’s interpretation
    17
    See 1 Pa. C.S. § 1903; 
    Love, 543 A.2d at 532
    .
    24
    carries little weight when it is inconsistent with the statute itself or when the statute
    is unambiguous); cf. 
    Turchi, 20 A.3d at 594
    (stating that an agency’s interpretation
    of an ordinance is entitled to deference unless the interpretation is plainly erroneous
    or inconsistent with the ordinance).
    Based on the evidence before it, the ZBA concluded that the 114 Permit
    allows for the erection of new impervious ground cover located within the 200-foot
    setback. C.L. No. 12. The Planning Commission’s Executive Director, Kramer,
    testified that there were stone retaining walls, retaining wall tops and concrete steps
    within the interior of the property. R.R. at 373a-76a. Ritter, Objector’s land
    planning expert, testified that there was impervious ground cover in the plans in
    violation of the 200-foot setback. F.F. No. 24. Ritter testified that “green elements”
    do not eliminate impervious ground cover. See F.F. No. 23, R.R. at 315a-20a.
    Further, Ritter stated that, at a minimum, there remained stairs, sidewalks, retaining
    walls, and curbs within the 200-foot buffer. See R.R. at 317a. Kramer’s and Ritter’s
    testimony is evidence which a reasonable mind might accept as adequate to support
    a conclusion that impervious ground cover exists within the 200-foot setback.
    b. 200-foot set back
    Owners and the City, nevertheless, argue that the issuance of the permit
    can be sustained on the independent ground that the proposed development is not
    within 200 feet of the bank of a surface water body. We disagree.
    The Zoning Code defines “bank of a surface water body” as “[t]he land
    that contains a surface water body at its highest flow.” Zoning Code § 14-203(33).
    The Zoning Code does not contain a definition of “surface water body.”
    Chiu testified that although the prior version of the Zoning Code
    contained a definition of surface water body, the current Zoning Code does not. R.R.
    25
    at 661a. She stated that the Planning Commission’s streams and swales map is
    traditionally used to determine setbacks from a watercourse. R.R. at 660a, 673a.
    Chiu explained that the streams and swales map is the official Wissahickon
    Watershed map and that it was produced in either 1973 or 1976. R.R. at 666a, 672a.
    She stated that the map identifies a surface water body in blue. R.R. at 665a. In
    referring to the map, she agreed that the map shows the creek going under Hillcrest
    Avenue and that where the map becomes blue again after being underground is the
    beginning of a surface water body. 
    Id. She further
    agreed that she would draw a
    200-foot arc around that to depict the setback. 
    Id. She explained
    that when she
    reviews a plan, she compares the proposed plan with the streams and swales map.
    R.R. at 666a.
    Chiu explained that there was a discrepancy on the plan submitted by
    Owners for the Planning Commission’s review because that plan used the existing
    outfall from which to locate the 200-foot buffer. R.R. at 665a. Chiu stated that when
    the applicant and his engineer first came into her office to ask about the project, she
    showed them the streams and swales map and “it is right on the border line.” R.R.
    at 665a. Chiu stated that when she reviewed the plan initially, she determined that
    the development was within the 200-foot setback, but that she approved the plan
    because she concluded there was no new impervious ground cover due to the use of
    green elements. F.F. Nos. 54-55; see R.R. at 669a.
    On cross-examination, Owners presented Chiu with a new plan which
    was not previously submitted to the Planning Commission for review but was
    submitted for the first time as an exhibit at the July 8, 2015 hearing. See F.F. No.
    58. The plan was prepared by Paul Lonie, a professional land surveyor who had also
    prepared the initial plan that was submitted to the Planning Commission showing
    26
    the 200-foot radius arc (the setback area). R.R. at 585a, 587a-88a. The new plan
    purported to show the 200-foot setback using the streams and swales map that Chiu
    previously explained she uses when she reviews plans. Chiu testified that the new
    plan “basically demonstrate[s] the building footprint is beyond the 200 feet.” F.F.
    No. 58, R.R. at 682a. This was not the Planning Commission’s decision when it
    approved the plan that was submitted for review. Indeed, in responding to why she
    approved the plan, Chiu testified, “we allowed [sic] to erect it within the 200 feet.”
    R.R. at 664a.
    Owners and the City argue that the critical question is what constitutes
    a “surface water body.” They contend the Planning Commission uses the streams
    and swales map to designate what constitutes a surface water body. They argue that
    the Planning Commission’s use of the map, rather than an ad hoc decision for each
    proposed development, which would require either a survey or physically visiting
    the property, is reasonable, and therefore, the ZBA should have accorded deference
    to the Planning Commission and its use of the streams and swales map to determine
    from what point to draw the 200-foot setback arc. They maintain that the ZBA
    improperly turned the issue into one of credibility, relying on other evidence offered
    at the hearing.
    With respect to the other evidence, Owners presented, at two separate
    hearings, the expert testimony of Lonie. At the April 29, 2015 hearing, Lonie
    explained that he marked the setback area from an “outfall,” which he explained was
    the location where the water, after being piped under Hillcrest Avenue, surfaces and
    reaches daylight. R.R. at 599a, 605a. When questioned as to why he marked the
    200-foot radius from an outfall, Lonie stated that the Planning Commission asked
    him to do it. R.R. at 601a, see F.F. No. 47. Lonie stated that he did not make any
    27
    judgment as to whether this was a surface water body or swale, but he was just asked
    by the Planning Commission to show where the “closest watercourse” was and he
    physically located it and marked “[w]here the water was evident.” R.R. at 609a-10a;
    see F.F. No. 48. Lonie agreed that the building envelopes were within the 200-foot
    setback. R.R. at 609a.
    Owners later recalled Lonie at the July 8, 2015 hearing to testify about
    the new plan following Chiu’s testimony.        Lonie stated that after his earlier
    testimony, he learned that the Planning Commission uses its official maps to record
    open bodies of water and that he changed his plan to reflect that new information.
    R.R. at 686a. Lonie testified that his original map was prepared from a field survey.
    F.F. No. 64. He stated that he did not resurvey the property in preparing the new
    plan because he would not measure from the existing outflow; instead, he measured
    from the water body as depicted on the Planning Commission’s streams and swales
    map. R.R. at 688a; see F.F. Nos. 61-62, 64.
    The Planning Commission’s determination is not entitled to deference
    here, as it was inconsistent and arbitrary. First, it must be noted that when Chiu
    reviewed the plan, she acknowledged that there was development proposed within
    the 200-foot setback.    She approved the plan based on her decision that the
    development did not include impervious ground cover. Kramer testified similarly.
    R.R. at 343a-44a; see F.F. Nos. 26 & 31, R.R. at 346a-47a.
    Notably, Kramer testified that the third prong of the Planning
    Commission’s review process is to review for anything located within 200 feet of an
    open water body. R.R. at 343a. Chiu also testified that when she receives a plan for
    a project within the WWOD, her process is to review the plan for, among other
    things, setback from a watercourse, and that she traditionally uses the streams and
    28
    swales map for this purpose. R.R. at 670a; see 660a, 673a. Chiu testified that she
    compared the development plan with the streams and swales map. R.R. at 673a-74a.
    Chiu also testified that the initial plan shows the location of the outfall and the arc
    but that the outfall’s location is not the same as the location of the end of the stream
    on the streams and swales map used by the Planning Commission. R.R. at 674a.
    Nevertheless, despite this apparent discrepancy, Chiu approved the plan. The
    Planning Commission accepted the original plan which was prepared based on a
    field survey. Only later did the Planning Commission say the plan should have been
    based on the streams and swales map. Accepting the original plan, which used the
    existing “outfall” contrary to the Planning Commission’s claimed normal policy,
    then later claiming that the plan was not reviewed and interpreted properly under the
    streams and swales map pursuant to the Planning Commission policy is inconsistent
    and clearly arbitrary and, therefore, not entitled to deference. Cf. 
    Turchi, 20 A.3d at 594
    (stating that an agency’s interpretation of an ordinance is entitled to deference
    unless the interpretation is plainly erroneous or inconsistent with the ordinance).
    As the ZBA was not required to give deference to the Planning
    Commission here, the ZBA did not err in rendering its decision based on the
    evidence before it. In rendering its decision, the ZBA recognized conflicting
    testimony existed regarding the location of the 200-foot buffer in relation to the
    proposed construction. C.L. No. 12.
    The ZBA found the testimony presented by Owners at the fourth
    hearing regarding the location of the 200-foot setback to be incredible.18 C.L. No.
    18
    Owners’ counsel disputes Objector’s statements that, at the first hearing, counsel
    “stipulated” that the development was within the 200-foot setback. This Court does not need to
    address whether counsel’s statement constituted a stipulation, because, even without counsel’s
    statement, there is substantial evidence to support the ZBA’s finding that the proposed
    development fell within the 200-foot setback.
    29
    17. Instead, the ZBA credited the expert testimony of Ritter, who determined that
    the proposed development would fall within the 200-foot buffer. C.L. No. 15.
    Additionally, the ZBA noted that the Planning Commission determined the proposed
    development was within the 200-foot setback when the permit was issued. C.L. No.
    16. Indeed, Chiu testified that when she approved the plan, she believed the
    development was located within the 200-foot setback. F.F. No. 56, R.R. at 669a.
    Kramer also confirmed that the plan was approved because what was being proposed
    within the 200-foot setback was not impervious. R.R. at 346a; see F.F. Nos. 30-31.
    It is well-settled that the ZBA is the arbiter of credibility. 
    Manayunk, 815 A.2d at 658
    . This Court may not alter those findings.
    The testimony of Chiu, Kramer and Ritter is such evidence that a
    reasonable mind might accept as adequate to support the ZBA’s conclusion that the
    proposed development fell within the 200-foot setback and, consequently,
    constitutes substantial evidence to support the ZBA’s decision on this issue.
    We conclude that the trial court did not err in affirming the ZBA’s
    determination that the proposed development introduced new impervious coverage
    within the 200-foot setback from a watercourse in violation of Zoning Code section
    14-510(5), and, therefore, we affirm the trial court’s order affirming the ZBA’s
    decision to the extent it sustained the appeal of the 114 Permit.
    Accordingly, for the foregoing reasons, we affirm the trial court’s order
    affirming the ZBA.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    30
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Appeal of Amit Azoulay,           :
    Idit Azoulay and Assaf Lavon,            :
    Appellants             :
    :
    v.                           :
    :
    Philadelphia Zoning Board of             :
    Adjustment and City of Philadelphia      :
    and Hillcrest Preservation Alliance,     :   No. 1085 C.D. 2017
    LLC, and Friends of The Wissahickon      :
    :
    :
    :
    In Re: Appeal of Amit Azoulay,           :
    Idit Azoulay and Assaf Lavon             :
    :
    v.                           :
    :
    Zoning Board of Adjustment               :
    :
    In Re: Appeal of Hillcrest               :
    Preservation Alliance, LLC               :
    :
    v.                           :
    :
    Zoning Board of Adjustment               :
    :
    Appeal of: Hillcrest Preservation        :   No. 1177 C.D. 2017
    Alliance, LLC                            :
    ORDER
    AND NOW, this 7th day of September, 2018, the order of the Court of
    Common Pleas of Philadelphia County dated July 7, 2017 is AFFIRMED.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge