J. Scott v. City of Philadelphia, Dept. of Licenses & Inspections

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Scott, :
Appellant :
v. : No. 1795 C.D. 2019
: Submitted: August 12, 2022
City of Philadelphia, Department :
of Licenses and Inspections :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 16, 2022
John Scott (Scott) appeals pro se from the November 13, 2019 order of the
Court of Common Pleas of Philadelphia County (Common Pleas), which denied his
appeal and affirmed the decision of the Zoning Board of Adjustment (Board). The
decision denied Scott’s appeal after the City of Philadelphia’s (City) Department of
Licenses and Inspections issued a final warning indicating that a property he owned
(Property) violated The Philadelphia Code (Code). After careful review, we affirm.
I. Background and Procedural History
Scott is the owner of two adjacent properties in the City. Reproduced Record
(R.R.) at 66a. The first is Scott’s personal residence. Id. The second is the Property,
which was formerly the site of numerous houses but now is a vacant lot. Id. at 66a-
71a. According to Scott, he uses the Property as a backyard and has been engaging
in a long-term “landscaping” project to maintain it as an open, grassy space. Id. at
66a-67a, 76a.
This appeal arises from Scott’s landscaping project on the Property, or, more
specifically, from the equipment he uses for that project. Scott indicates he built an
addition onto his residence and purchased a 12,000-pound excavator (Excavator) to
assist with the construction.1 Id. at 67a, 73a. After Scott completed the addition, he
stored the Excavator on the Property and continued to use it for landscaping. Id. at
67a. The City later sent notices to Scott, including an initial violation dated July 21,
2017, and final warning dated August 31, 2017, that the Property was in violation of
the Code. Relevantly, the notices directed Scott to stop storing, or to obtain a permit
for storing, all vehicles, construction equipment, and materials on the Property. The
notices cited to the administrative provisions of the Code,2 which indicate that “[a]
use registration permit is required for every new use commenced on any land or in
any structure except for use as a single-family dwelling.” Code § A-301.1.5.
Scott filed a pro se appeal to the Board. The Board held a public hearing on
June 19, 2018, at which Scott appeared with counsel. Scott testified that he primarily
used the Excavator to remove bricks and debris from the Property, and that “I have
not used the [E]xcavator for anything commercial whatsoever.” R.R. at 67a, 75a-
77a. Scott explained the Property “basically consists of fill from torn down houses
over the last 50 or 60 years. So almost the entire area of the [P]roperty is brick, and
it’s very hard to maintain. . . . because the bricks keep coming up . . . .” Id. at 66a.
He testified that his landscaping work was “just about done,” and that he ultimately
1
Pictures of the Excavator appear in the record. See R.R. at 17a-18a. The Excavator is a tracked
vehicle with a hydraulic arm and a cabin for the operator.
2
Phila., Pa., Admin. Code (approved Mar. 26, 1997).
2
planned to sell or “scrap[]” the Excavator. Id. at 67a. Specifically, Scott testified
he performs this landscaping “on the weekend” and could complete it within “I don’t
know. A year.” Id. at 74a.
Following Scott’s testimony, the Board voted unanimously to deny his appeal
with a 120-day stay of enforcement. Id. at 80a. The Board issued a written decision
to that effect on June 19, 2018, the same day as the public hearing.3 In its subsequent
findings of fact and conclusions of law, the Board explained that the Excavator was
“clearly commercial in nature, regardless of how it is used.” Id. at 83a. In addition,
the Board concluded that the City reasonably determined the storage of construction
equipment on residential property requires a permit. Id.
Scott appealed to Common Pleas pro se. Although the parties filed briefs and
participated in oral argument, Common Pleas did not take any additional evidence.
In its brief, the City argued for the first time that Scott’s storage of the Excavator fell
under the “Wholesale, Distribution, and Storage” use category found in the Code’s
zoning provisions4 at Code § 14-601(9), which was not permissible in the Property’s
residential zoning district. The City argued, therefore, that storage of the Excavator
was a change of use requiring a permit under Code § A-301.1.5. By order dated and
entered November 13, 2019, Common Pleas denied Scott’s appeal and affirmed the
Board.
Scott appealed to this Court. Common Pleas entered an order directing Scott
to file a concise statement of errors complained of on appeal, and Scott complied.
3
The decision denied Scott’s appeal with provisos. In addition to the 120-day stay of enforcement,
the decision directed that Scott obtain a permit from the City within one year, that all construction
must be in accordance with plans that the Board approves, and that a new application and a new
public hearing would be required for failure to comply with the foregoing conditions.
4
Phila., Pa., Zoning Code (approved Dec. 22, 2011).
3
Common Pleas then issued an opinion, in which it accepted the City’s argument that
storage of the Excavator fell within the “Wholesale, Distribution, and Storage” use
category at Code § 14-601(9) and was impermissible in the Property’s residential
zoning district absent a permit. R.R. at 14a.
Scott now raises several issues for this Court’s review. Scott (1) disputes the
Board’s finding that his Excavator was “commercial in nature” even though he was
not using it commercially, (2) argues the Board improperly denied his appeal without
citing to or interpreting the zoning provisions of the Code, and (3) levels a series of
challenges relating to Common Pleas’ reliance on the “Wholesale, Distribution, and
Storage” use category at Code § 14-601(9).
II. Discussion
Common Pleas did not take any additional evidence before ruling on Scott’s
appeal. Under these circumstances, this Court reviews whether the Board abused its
discretion or committed an error of law when rendering its decision. In re Garcia,
276 A.3d 340, 347 n.4 (Pa. Cmwlth. 2022) (citing Marshall v. City of Phila., 97 A.3d
323, 331 (Pa. 2014)). We interpret the Code according to the rules of statutory
construction. THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330, 336 (Pa.
Cmwlth. 2014) (citing Bailey v. Zoning Bd. of Adjustment of the City of Phila., 801
A.2d 492, 502 n.19 (Pa. 2002)). Our primary objective is to determine the intent of
the Code’s drafters. Bailey, 801 A.2d at 502 (citing 1 Pa.C.S. § 1921). To fulfill
this objective, we must focus on the Code’s plain language. See THW Grp., 86 A.3d
at 336. The Code “must be construed expansively so as to afford the landowner the
broadest possible use and enjoyment of his land.” Id. (citing Rabenold v. Zoning
Hearing Bd. of the Borough of Palmerton, 777 A.2d 1257 (Pa. Cmwlth. 2001)).
Nonetheless, where the Code is unclear, the Board’s interpretation “is entitled to
4
great weight and deference.” Wexford Sci. & Tech., LLC v. City of Pittsburgh Zoning
Bd. of Adjustment, 280 A.3d 1097, 1102 (Pa. Cmwlth. 2022) (citation omitted); see
also In re Chestnut Hill Cmty. Ass’n, 155 A.3d 658, 667 (Pa. Cmwlth. 2017) (citing
Hafner v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1210 (Pa. Cmwlth.
2009)).
Initially, Scott assails the Board’s finding that his Excavator was “commercial
in nature,” even though he did not use it for commercial purposes. Scott’s Br. at 8-
13. Scott contends that he was using his Excavator for “exclusively non-commercial
purposes,” and that no contrary evidence exists. Id. at 11. According to Scott, the
phrase “commercial in nature” does not appear in the Code, and the Board “made
this standard up.” Id. at 12-13. Scott also contends the Board improperly denied his
appeal without citing to or interpreting the zoning provisions of the Code. Id. at 13.
Scott insists the Board simply deferred to the zoning inspector, who did not appear
at the hearing. Id.
We find instructive this Court’s prior decision in DiMattia v. Zoning Hearing
Board of East Whiteland Township, 168 A.3d 393 (Pa. Cmwlth. 2017). There, two
property owners used a garage and driveway for “preparation, repair and transport
of race cars.” Id. at 395. The owners argued this was a permissible accessory use
of their property because, in relevant part, “evidence . . . showed that these activities
were a hobby, rather than a commercial use . . . .” Id. at 399. This Court rejected
the owners’ argument, explaining that, if their activity did not meet the definition of
“accessory use” in the zoning ordinance and case law, it was not permissible, “even
if it is a hobby or recreational activity of the property owner and no commercial
purpose or economic gain is involved.” Id. (citation omitted). Similarly, we focus
our attention in this matter on whether Scott’s storage of the Excavator is permissible
5
under the Code and pertinent case law, rather than Scott’s insistence that he never
used the Excavator for commercial purposes.
The Code divides the City into a series of zoning districts. Here, Scott does
not dispute that the Property is in the Residential Single-Family Attached-5, or RSA-
5, district. RSA districts “are primarily intended to accommodate attached and semi-
detached houses on individual lots, but may be applied in areas characterized by a
mix of housing types, including detached houses. The districts are also intended to
provide a density transition between [Residential Single-Family Detached] districts
and [Residential Multi-Family] districts.” Code § 14-401(1)(c)(.2). The Code lists
principal uses allowable in residential districts in Table 14-602-1. Critically, while
Table 14-602-1 expressly states certain uses are prohibited, “[w]here use categories
and subcategories are not listed in a use table, they are also prohibited.” Code §
14-602(2)(d) (emphasis added).
Applying Table 14-602-1, the Code permits certain uses as of right and others
only with a special exception. There is no allegation in this case that Scott requested
or received a special exception, so we focus on uses that the Code expressly permits.
Permissible uses include single-family housing, passive recreation, family childcare,
religious assembly, safety services, transit stations, community gardens, and market
or community-supported farms. None of these uses reasonably encompasses Scott’s
storage of the Excavator on the Property.
It is also important to add that the Code does not permit Scott’s storage of the
Excavator as an accessory use. The Code provides that accessory uses in residential
districts “are permitted in conjunction with allowed principal uses, provided they
comply with all applicable regulations . . . .” Code § 14-401(2). The Code defines
an “accessory use” as, in relevant part, “[a] use . . . that is subordinate to and on the
6
same lot as the principal use on a lot and customarily incidental to the principal use.”
Code § 14-203(2); see also Code § 14-604(1)(c)(.3) (“Accessory uses and structures
must: . . . be customarily found in association with the principal use or principal
structure.”). Scott’s storage of the Excavator, a 12,000-pound piece of construction
equipment, does not satisfy this definition, as it is not “customarily incidental” or
“customarily found in association with” any residential principal use allowed in the
RSA-5 district. Code §§ 14-203(2), 14-604(1)(c)(.3); see also DiMattia, 168 A.3d
at 398-400.
Given these provisions, we conclude the Board did not abuse its discretion or
commit an error of law by denying Scott’s appeal and concluding his storage of the
Excavator requires a permit under Code § A-301.1.5. Although Scott argues the
Board denied his appeal without adequately analyzing the Code’s zoning provisions,
our review of the Code supports the Board’s decision. Therefore, any inadequacy
in the Board’s analysis was harmless. See Grove v. Port Auth. of Allegheny Cnty.,
218 A.3d 877, 890 (Pa. 2019) (quoting Commonwealth v. Hairston, 84 A.3d 657,
671 (Pa. 2014)) (“Harmless error exists if the record demonstrates either . . . the error
did not prejudice the defendant or the prejudice was de minimis[.]”).
Scott next levels a series of challenges regarding Code § 14-601(9), on which
Common Pleas relied when denying his appeal from the Board. Scott acknowledges
he did not raise his issues regarding Code § 14-601(9) in his appeal to the Board, but
he explains he could not raise those issues then because the City did not cite to Code
§ 14-601(9) until his appeal to Common Pleas.5 Scott’s Reply Br. at 1-3. He argues
the City waived Code § 14-601(9) by not raising it sooner. Scott’s Br. at 14-15. In
5
See Soc’y Created to Reduce Urb. Blight v. Zoning Bd. of Adjustment, 804 A.2d 116, 119 (Pa.
Cmwlth. 2002) (“If parties do not request that the trial court hear additional evidence, they waive
arguments which were not raised before the board.”) (citations omitted).
7
addition, Scott advocates for a broad construction of the Code in his favor. Id. at 20-
23. Scott asserts that Code § 14-601(9) applies to bulk storage rather than storage
of a single piece of equipment, and that reading it otherwise would lead to absurd
results. Id. at 18-20. Generally, he characterizes Common Pleas’ reliance on Code
§ 14-601(9) as an unconstitutional infringement on his use of the Property due to
aesthetic concerns. Id. at 18-24. Scott further suggests that his use of the Property
predated Code § 14-601(9) and was a legal nonconforming use. Id. at 14-17.
Scott’s arguments are misplaced. Our standard of review requires us to assess
whether the Board committed an abuse of discretion or error of law when it denied
Scott’s appeal, and the Board did not rely on Code § 14-601(9). Regardless, Code
§ 14-601(9) merely illustrates the point we already made above—that Scott’s storage
of the Excavator is not permissible as a principal or accessory use under the Code.
Rather, storage of the Excavator more closely resembles commercial and industrial
uses that are prohibited in the RSA-5 district, such as “Wholesale, Distribution, and
Storage.” Some other examples might include “Commercial Vehicle Repair and
Maintenance” under Code § 14-601(8)(a), which involves the maintenance of “large
construction or agricultural equipment” or “Trucking and Transportation Terminals”
under Code § 14-601(10)(i), which involves the “long-term or short-term storage of
large vehicles.”
Our review does not reveal any use category in the Code that perfectly fits
Scott’s storage of the Excavator on the Property. The Code’s drafters cannot have
been expected to envision every inappropriate use of property that might arise. That
is why, when a use does not fit squarely within those listed, the Code provides the
City with authority to “determine the most similar, and thus most appropriate, use
category, subcategory, or specific use type . . . .” Code § 14-601(e)(.2). Indeed, our
8
Supreme Court has explained a zoning ordinance need not “state every conceivable
impermissible use,” as this would “negate the deference to which a zoning hearing
board is entitled in the interpretation of its municipality’s zoning ordinances. If . . .
unlisted uses are necessarily permitted in a given zoning district, there would be
nothing for the zoning hearing board to interpret.” Slice of Life, LLC v. Hamilton
Twp. Zoning Hearing Bd., 207 A.3d 886, 902 (Pa. 2019) (citation omitted).6
6
Even accepting for the sake of argument that we may consider Scott’s remaining constitutionality
and nonconforming use claims, they do not entitle him to relief. Establishing residential districts
“has long been recognized as a valid exercise of a municipality’s police power.” Slice of Life, 207
A.3d at 889. Our Courts presume zoning ordinances are constitutional, and it is the burden of the
party challenging an ordinance to establish its provisions are “arbitrary and unreasonable and bear
no substantial relationship to promoting public health, safety and welfare.” Keinath v. Twp. of
Edgmont, 964 A.2d 458, 462 (Pa. Cmwlth. 2009) (citing McGonigle v. Lower Heidelberg Twp.
Zoning Hearing Bd., 858 A.2d 663 (Pa. Cmwlth. 2004)). A significant factor when considering
the reasonableness of land use restrictions “is whether they are consistent with stated purposes of
the particular zoning district.” Id. (citing Hock v. Bd. of Supervisors of Mount Pleasant Twp., 622
A.2d 431 (Pa. Cmwlth. 1993)). Here, we detect no constitutional infirmity in the use restrictions
applicable to the RSA-5 district. This is particularly true given, as we noted above, that the primary
purpose of the district is to “accommodate attached and semi-detached houses . . . .” Code § 14-
401(1)(c)(.2).
Moreover, Scott is correct that the Code permits nonconforming uses, which are uses that
do not comply with the zoning provisions of the Code “because (a) they were established before
the adoption of zoning, or (b) they were legal when established but have become nonconforming
due to later zoning amendments.” Code § 14-305(1). “The burden of establishing the prior
existence of a nonconformity is on the applicant.” Code § 14-305(4)(d); see also Hafner v. Zoning
Hearing Bd. of Allen Twp., 974 A.2d 1204, 1211 (Pa. Cmwlth. 2009). Though Scott argues his
storage of the Excavator predated the Code’s current zoning provisions, which became effective
in 2012, he makes no effort to argue this storage was “established before the adoption of zoning”
or was “legal when established” and became nonconforming later. Code § 14-305(4)(d). That is,
Scott alleges the Excavator has remained on the Property since 2003, see Scott’s Br. at 16 n.4, but
he does not explain how the version of the Code existing at that time would have permitted him to
store the Excavator. Scott instead relies on case law pertaining to abandonment of nonconforming
uses and mistakenly attempts to shift the burden to the City to establish that no nonconformity
existed. Id. at 16-17 (citing Faith Presbyterian Church v. Bensalem Twp. Zoning Hearing Bd.,
538 A.2d 135 (Pa. Cmwlth. 1988)).
9
III. Conclusion
Thus, because Scott’s arguments do not demonstrate the Board committed an
abuse of its discretion or an error of law, we affirm Common Pleas’ November 13,
2019 order, which denied Scott’s appeal of the Board’s decision.
______________________________
STACY WALLACE, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Scott, :
Appellant :
v. : No. 1795 C.D. 2019
:
City of Philadelphia, Department :
of Licenses and Inspections :
ORDER
AND NOW, this 16th day of November 2022, the November 13, 2019
order of the Court of Common Pleas of Philadelphia County, affirming the decision
of the Zoning Board of Adjustment, is AFFIRMED.
______________________________
STACY WALLACE, Judge