D. Bielby v. ZB of Adjustment of the City of Philadelphia ~ Appeal of: C. Willard

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darin Bielby :
:
v. :
:
Zoning Board of Adjustment of the :
City of Philadelphia and Carla Willard, :
Connie Winters, Michael Ramos, :
Susan Wright :
:
Appeal of: Carla Willard, Connie :
Winters, Michael Ramos, Susan : No. 1843 C.D. 2019
Wright : Argued: June 10, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 6, 2021
Carla Willard, Connie Winters, Michael Ramos and Susan Wright
(collectively, Appellants) appeal from the Philadelphia County Common Pleas
Court’s (trial court) November 21, 2019 order affirming in part, and reversing in
part, the City of Philadelphia (City), Zoning Board of Adjustment’s (ZBA) October
4, 2017 decision. Appellants present five issues for this Court’s review: (1) whether
the trial court’s order denying Appellants’ motion to intervene was barred by a prior
trial court judge’s order granting Appellants leave to amend their praecipe to
intervene; (2) whether this case is moot because ownership of the property at issue
changed on October 2, 2019; (3) whether this matter should be remanded to the ZBA
to issue findings of fact and conclusions of law; (4) whether a portion of the ZBA’s
vote which lacks the concurrence of three members can be legally binding, while
other portions are declared invalid; and (5) whether the trial court’s decision to strike
the proviso is supported by substantial evidence.1 After review, this Court affirms
in part and reverses in part.
Background
On May 30, 2017, Darin Bielby (Applicant)2 applied to the City’s
Department of Licenses and Inspections (L&I) for a zoning use registration permit
to renovate 224-230 West Tulpehocken Street (Property). Applicant sought to
convert a former nursing home located on the Property into a mixed-use building
with 14 residential units, add a commercial space, erect a second story along
Pastorius Street, and add 21 accessory parking spaces (Application). On June 20,
2017, L&I denied the Application because, inter alia, the proposed multi-family use
was not permitted in the Property’s residential single-family detached zoning
district, the proposed accessory parking was not permitted in the required front set-
back from Pastorius Street, and mandatory landscaping and buffers were not
proposed for the accessory parking.
Applicant appealed to the ZBA on July 14, 2017. Thereafter, Applicant
revised his plan to address concerns raised at registered community organization
meetings by removing two parking spaces, relocating five proposed new parking
spaces along Pastorius Street to the interior lot, and adding landscaped areas to the
remaining proposed parking spaces along Pastorius Street. Applicant also withdrew
his request for a commercial use variance and changed that space to a common area
for tenants. The ZBA held a hearing on October 4, 2017, at which it approved the
1
This Court has changed the order of the issues presented for ease of discussion.
2
On April 9, 2021, this Court granted Tulpehocken Mansion, LLC’s unopposed
Application to Substitute Appellee Property Owner from Darin Bielby to Tulpehocken Mansion,
LLC. Therefore, for any actions occurring after April 9, 2021, “Applicant” refers to Tulpehocken
Mansion, LLC.
2
variances subject to a proviso restricting parking and additional curb cuts on
Pastorius Street. The ZBA’s October 13, 2017 Notice of Decision contained a
proviso stating no parking on Pastorius Street and curb cut on Tulpehocken Street
only.3 On October 13, 2017, Applicant filed a motion for reconsideration of the
proviso with the ZBA. On October 17, 2017, Appellants filed a motion for
reconsideration with the ZBA seeking an enforceable proviso forbidding ingress and
egress to the Property from the existing Pastorius Street driveway, and
reconsideration of whether Applicant established a hardship to justify the subject
variances.
On November 1, 2017, the ZBA vacated its October 13, 2017 Notice of
Decision and issued a new decision without granting either request for
reconsideration. The November 1, 2017 Notice of Decision approved the variances
but with a new proviso stating, entry curb cut for emergency vehicles only, no
ingress/egress from Pastorius Street and existing curb cut to be removed or physical
barrier erected.4 On November 3, 2017, Applicant appealed from the ZBA’s October
4, 2017 decision to the trial court. On November 20, 2017, Applicant appealed from
the ZBA’s November 1, 2017 decision to the trial court. On November 22, 2017,
Appellants filed a request with the ZBA for reconsideration of its November 1, 2017
proviso and modification of the variances. On November 29, 2017, the ZBA granted
Appellants’ request for reconsideration and rehearing, but did not schedule a hearing
due to Applicant’s appeals to the trial court.
On December 1, 2017, Appellants filed cross-appeals to Applicant’s
appeals to the trial court. On December 29, 2017, Applicant filed a Motion to
Consolidate, Enjoin, Quash and/or Strike, Sanction, Recuse and/or Disqualify.
Specifically, Applicant asked the trial court to quash or strike Appellants’ entry of
3
The October 4, 2017 decision was mailed on October 13, 2017.
4
The November 1, 2017 decision was mailed on November 10, 2017.
3
appearances and cross-appeals, and to impose sanctions against Appellants’ counsel
for untimely filing an appeal from the ZBA decision. On January 17, 2018,
Appellants filed a Motion for Leave to Correct Caption of Praecipe to Intervene,
requesting the trial court to treat the Notice of Cross-Appeal as a Praecipe to
Intervene.
On March 13, 2018, the trial court denied Applicant’s motion for
sanctions, but granted Applicant’s motion to consolidate and request to strike or
quash Appellants’ cross-appeals without prejudice to allow Appellants to file a
Praecipe to Intervene. The trial court also granted Appellants’ Motion for Leave to
Correct Caption, in part, to allow Appellants leave to amend the Notice of Cross-
Appeal and refile as a Praecipe to Intervene. On March 15, 2018, Appellants filed
an Amended Praecipe to Intervene.
On July 18, 2018, the trial court heard oral argument and ordered a
hearing de novo on the ZBA’s October 4, 2017 proviso only. On August 10, 2018,
the trial court issued an order scheduling the de novo hearing for August 22, 2018,
and directing all parties to file witness lists by August 17, 2018. On August 14,
2018, Appellants appealed from the trial court’s August 10, 2018 order to this Court.
On August 15, 2018, the trial court ordered Appellants to file a Concise Statement
of Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate
Procedure (Rule) 1925(b) (Rule 1925(b) Statement). Appellants timely filed their
Rule 1925(b) Statement.
On August 22, 2018, the trial court held a de novo hearing limited to
only the evidence Applicant presented to the ZBA on October 4, 2017. The trial
court granted Applicant’s motion to preclude Appellants from presenting witnesses
at the hearing because they failed to file a witness list as the trial court ordered. On
August 27, 2018, Appellants filed post-trial motions requesting the trial court to
4
reopen the record and order a new trial on the basis of newly discovered evidence
and adverse precedent.
On October 1, 2018, the trial court affirmed the ZBA’s October 4, 2017
decision granting the variances, but reversed the proviso, declared that all ZBA
actions after October 4, 2017, were null and void, struck Appellants’ intervention
and denied Applicant’s request for monetary sanctions. On October 4, 2018, the
trial court filed its opinion. On October 5, 2018, the trial court denied Appellants’
post-trial motions. On October 10, 2018, Appellants appealed from the trial court’s
October 1, 2018 order to this Court. On October 16, 2018, the trial court ordered
Appellants to file a Rule 1925(b) Statement. On October 23, 2018, Appellants filed
an Application for Stay or Supersedeas Pending Appeal (Application for Stay) and
Consolidation of Appeals (Application to Consolidate). By October 25, 2018 Order,
this Court denied Appellants’ Application for Stay without prejudice. On November
6, 2018, Appellants filed their Rule 1925(b) Statement. By November 28, 2018
Order, this Court granted Appellants’ Application to Consolidate.
On December 28, 2018, Appellants filed a second application for a
limited stay of that portion of the trial court’s order reversing the ZBA’s proviso
pending appeal (Second Stay Application) and dismissing Appellants’ intervention
for lack of standing. By January 25, 2019 Order, this Court scheduled a hearing on
Appellants’ Second Stay Application. On February 19, 2019, the trial court filed its
opinion pursuant to Rule 1925(a) (Rule 1925(a) opinion). On March 21, 2019, this
Court denied Appellants’ Second Stay Application. On October 10, 2019, because
this Court determined that the trial court erred in granting a de novo hearing, this
Court vacated the trial court’s October 1, 2018 order and remanded the matter to the
trial court to address Applicant’s 2017 appeals based on the ZBA’s record. See
Bielby v. Zoning Bd. of Adjustment of City of Phila. (Pa. Cmwlth. Nos. 1177, 1419,
1420 C.D. 2018, filed Oct. 10, 2019) (Bielby I).
5
Facts
On November 21, 2019, the trial court held a remand hearing and issued
an order affirming in part, and reversing in part, the ZBA’s October 4, 2017 decision.
Specifically, the trial court affirmed the ZBA’s grant of variances, and reversed the
proviso regarding no parking on Pastorius Street, parking curb cut on Tulpehocken
Street only. The trial court further declared that all ZBA actions in this matter after
October 4, 2017, were null and void. On December 17, 2019, Appellants appealed
from the trial court’s order to this Court.5 On January 6, 2020, the trial court ordered
Appellants to file a Rule 1925(b) Statement. On January 24, 2020, Appellants filed
their Rule 1925(b) Statement. On August 21, 2020, the trial court filed its Rule
1925(a) opinion. On October 12, 2020, Appellants filed an Application to Quash
Applicant’s Two Zoning Appeals as Moot (Application to Quash). By December
11, 2020 Order, this Court directed that Appellants’ Application to Quash be listed
for disposition with the merits of the appeal. On April 9, 2021, this Court granted
Tulpehocken Mansion, LLC’s unopposed Application to Substitute Appellee
Property Owner from Darin Bielby to Tulpehocken Mansion, LLC.
Discussion
Praecipe to Intervene
Appellants argue that the trial court’s reversal of the first trial court
judge’s order granting Appellants intervenor status violated the law of the case.
Applicant rejoins that although Appellants included argument on the issue of their
5
Where the parties present no additional evidence, “our review is limited to determining
whether the ZBA committed an abuse of discretion or an error of law.” Soc’y Hill Civic Ass’n v.
Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1185 n.2 (Pa. Cmwlth. 2012).
6
intervention in their brief, Appellants failed to raise the issue in their Rule 1925(b)
Statement; therefore, Appellants waived this argument.
Preliminarily, Applicant’s claim that Appellants waived this argument
by failing to include it in their Rule 1925(b) Statement is meritless as Appellants
raised the issue at the earliest point. The trial court struck Appellants’ intervention
in its October 1, 2018 order. See Reproduced Record (R.R.) at 632a. However, this
Court vacated the trial court’s October 1, 2018 order.6 See Bielby I. The trial court
did not address Appellants’ intervention in its November 21, 2019 order. Rather,
the trial court declared in its August 21, 2020 Rule 1925(a) opinion: “th[e trial c]ourt
properly struck [Appellants’] intervention.” R.R. at 689a. Because Appellants filed
their Rule 1925(b) Statement on January 24, 2020, their brief was the earliest point
Appellants could have raised this issue. Accordingly, this Court will address the
issue of Appellants’ intervention.7
Philadelphia Rule of Civil Procedure No. 320, entitled “Appeals from
State and Local Agencies,” provides in relevant part:
(C) Procedure on Appeal. The Supervising Judge shall
publish a standing case management order for each agency
whose determinations are appealed on a regular basis
(“agency-specific orders”). For agencies whose
determinations are seldom appealed, the Supervising
Judge shall publish a standing order of a generic
nature. The Office of Judicial Records shall provide
appellant(s) with an agency-specific (or generic)
standing order whenever a notice of appeal is filed.
Every appeal (and matter ancillary thereto) shall be
governed by the aforesaid standing order and any
6
This Court specifically stated: “Given this determination, the Court does not reach
[Appellants’] standing to intervene issue.” Bielby I, slip op. at 12 n.14.
7
It appears that the trial court did not strike Appellants’ intervention until over 30 days
after the entry of its order. Notwithstanding, this Court will address the issue of Appellants’
intervention because it affects the jurisdiction of this Court to hear the appeal in the first instance.
See Lescinsky v. Twp. of Covington Zoning Hearing Bd., 123 A.3d 379 (Pa. Cmwlth. 2015) (appeal
quashed for improper intervention in a land use appeal).
7
supplemental order, which may be issued by the
Supervising Judge.
....
(E) Parties.
(a) The following persons shall be deemed parties
opposed to the appeal unless they opt out by filing a
praecipe with the Office of Judicial Records within 60
days of service of the Notice of Appeal:
(1) the person(s) who initiated the proceedings before the
agency below;
(2) the City of Philadelphia, but only in appeals involving
local agencies;
....
(b) Others may obtain party status by intervening in
accordance with the procedures set forth in the
standing order.
PHILA. CIV. R. 320 (text emphasis added).
Here, the Case Management Order (CMO) directed, in relevant part:
2. Intervenors: Any party who entered an appearance
before the [ZBA] has a right to intervene in this appeal by
filing a Praecipe to Intervene with the Office of Judicial
Records and serving it on all other parties within thirty
(30) days of receipt of this notice.
Original Record Vol. 5 at 23.8 The CMO was issued on November 6, 2017. Id.It is uncontested that Appellants entered an appearance before the ZBA.
Further, there is no dispute that Appellants filed their Notice of Cross-Appeals on
December 1, 2017, which was within 30 days of the CMO’s issuance. See R.R. at
528a-529a, 534a-535a. On December 29, 2017, Applicant filed, inter alia, a Motion
8
Because the pages of the trial court’s original record are not numbered, the page numbers
referenced herein reflect electronic pagination.
8
to Quash and/or Strike Appellants’ Cross-Appeals. On January 17, 2018, Appellants
filed a Motion for Leave to Correct Caption of Praecipe to Intervene, requesting the
trial court to treat each Notice of Cross-Appeal as a Praecipe to Intervene. On March
13, 2018, the first trial court judge granted Applicant’s request to strike or quash
Appellants’ cross-appeals without prejudice to allow Appellants to file a Praecipe to
Intervene. The first trial court judge also granted Appellants’ Motion for Leave to
Correct Caption, in part, to allow Appellants leave to amend each Notice of Cross-
Appeal and refile as a Praecipe to Intervene. On March 15, 2018, Appellants filed
an Amended Praecipe to Intervene.
The trial court opined:
After this matter was transferred to [the second trial court
judge], it became clear that [the first trial court judge’s
o]rder [was] clearly erroneous. A Notice of Appeal allows
a party to challenge a decision of an administrative
agency, such as the [ZBA], to a higher court and, a
Praecipe to Intervene allows persons “who entered an
appearance before the [ZBA]” the right to intervene as
parties to an appeal “by filing a Praecipe to Intervene with
the Office of Judicial Records and serving it on all other
parties within thirty (30) days of receipt of this [CMO.]”[]
The filings are distinct, are filed at different times and
serve different purposes. [Appellants’] assertion that a
filing to challenge portions of the ZBA’s final decision is
“substantially identical to a typical Praecipe to Intervene”
is unreasonable. [Appellants] have asked th[e trial c]ourt
to absolve their failure to file a timely appeal, failure to
file a Praecipe to Intervene within thirty (30) days of
service of the [CMO], and failure to otherwise properly
obtain party status by belatedly allowing them to file a
Praecipe to Intervene well after the thirty[-]day deadline
had passed under the guise of “amending” a caption.
Further, the [first trial court judge’s] erroneous holding
would result in a manifest injustice. [Appellants] have not
filed the required documents, therefore they have not
preserved an opportunity to intervene or appeal in this
matter. Allowing these non-parties to delay this process
9
has already prejudiced [Applicant]. Allowing
[Appellants] to continue in this matter would result in a
manifest injustice, therefore th[e trial c]ourt properly
struck their intervention.[9]
R.R. at 688a-689a (footnotes omitted).
Rule 105(a) provides:
Liberal construction and modification of rules. - The[]
[R]ules [of Appellate Procedure] shall be liberally
construed to secure the just, speedy, and inexpensive
determination of every matter to which they are
applicable. In the interest of expediting decision, or for
other good cause shown, an appellate court may, except as
otherwise provided in paragraph (b) of this rule [(relating
to enlargement of time)], disregard the requirements or
provisions of any of these rules in a particular case on
application of a party or on its own motion and may order
proceedings in accordance with its direction.
Pa.R.A.P. 105(a).
Similarly, with respect to the Rules of Civil Procedure, the
Pennsylvania Supreme Court has long held: “In the interest of justice, our civil
procedural rules must be liberally construed. Form must not be exalted over
substance, and procedural errors must not be dispositive where there has been
substantial compliance with the rules and no prejudice has resulted from purely
technical error.” In re Tax Claim Bureau, German Twp., Mt. Sterling 54 ½ Acres,
Miscellaneous Bldgs., 436 A.2d 144, 146 (Pa. 1981). “The Rules of Civil Procedure
are not ends in themselves, but are designed to insure the fair, orderly and
expeditious administration of justice; pleading is not intended to be a game of skill
in which ‘one misstep by counsel may be decisive to the outcome.’” Id. (quoting
9
The trial court also declared: “[E]ven if [Appellants] had properly become parties in this
matter, they do not have standing to participate in these appeals.” R.R. at 689a. However, the
issue before this Court is whether the first trial court judge properly permitted Appellants to
intervene in Applicant’s appeals from the ZBA’s decision, not whether Appellants have standing
to appeal from the ZBA’s decision.
10
Foman v. Davis, 371 U.S. 178, 181-82, (1962)). “Questions of intervention are
within the discretion of the trial court.” Acorn Dev. Corp. v. Zoning Hearing Bd. of
Upper Merion Twp., 523 A.2d 436, 437 (Pa. Cmwlth. 1987).
Here, Appellants filed their Notice of Cross-Appeals within the
required time period to file a Praecipe to Intervene. Clearly, Appellants incorrectly
titled the pleading; however, because “there ha[d] been substantial compliance with
the rule[] and no prejudice [] resulted from [the] purely technical error[,]” this Court
cannot hold that the first trial court judge abused her discretion in granting
Appellants’ Motion for Leave to Correct Caption to allow Appellants leave to amend
the Notice of Cross-Appeal and refile as a Praecipe to Intervene. In re Tax Claim
Bureau, 436 A.2d at 146.
Under Pennsylvania law, the second trial court judge is bound by the
holding of a judge of coordinate jurisdiction when the prior holding is not clearly
erroneous and would not result in a manifest injustice. Zane v. Friends Hosp., 836
A.2d 25 (Pa. 2003). Given the above, there is no record evidence that the first trial
court judge’s holding was clearly erroneous or resulted in a manifest injustice.
Consequently, the second trial court judge was bound by the holding of the first trial
court judge. Accordingly, this Court reverses the trial court’s order striking
Appellants’ intervention.
Application to Quash
Appellants argue that Applicant’s appeals to the trial court should be
quashed as moot because Tulpehocken Mansion, LLC acquired the Property from
Darin Bielby by deed executed on October 2, 2019, and recorded on October 11,
2019, but did not file a Petition to Intervene nor a Petition to Substitute Party when
the matter was remanded to the trial court. Appellants cite Siloam v. City of
Philadelphia, Board of License and Inspection Review, 79 A.3d 1257 (Pa. Cmwlth.
11
2013), to support their position. Applicant rejoins that under Pennsylvania law,
transferring legal ownership of a property does not invalidate a previously approved
zoning variance. Further, Applicant asserts that Siloam is inapposite.
In Siloam, Siloam,10 a property owner, filed an appeal to the
Philadelphia County Common Pleas Court (Common Pleas)11 from the City’s denial
of its request to demolish a church that stood on its property due to hardship. During
the pendency of the appeal to Common Pleas, Siloam sold the property to an
unrelated third party. Common Pleas reversed the denial, and the City appealed to
this Court. This Court, sua sponte, determined that Siloam’s transfer of the property
during the pendency of its appeal rendered its claim of hardship moot and, therefore,
denied its request for relief.
Determinative to the issue before the Court was the fact that the original
request to demolish was denied in part because although Siloam’s executive director
testified that it could not sell the church, the Board credited the City’s witnesses’
testimony criticizing Siloam’s attempts to sell the church. Common Pleas reversed,
determining, inter alia, that Siloam had taken sufficient steps to sell the church.
Clearly, the fact that Siloam sold the church during the pendency of the appeal
mooted the issue of whether Siloam was suffering a hardship because it could not
sell the church.
Here, the ZBA granted Applicant’s requested variances and Applicant
appealed from the proviso thereto. The fact that the Property was sold during the
pendency of the appeal does not moot the issue of whether the proviso was properly
issued. Consequently, Siloam is inapposite. Further, variances run with the land,
not with the property owner. Scalise v. Zoning Hearing Bd. of Borough of W. Mifflin,
10
Siloam is a nondenominational provider of services to individuals impacted by
HIV/AIDS.
11
This Court refers to the Philadelphia County Common Pleas Court as Common Pleas to
distinguish it from the trial court herein.
12
756 A.2d 163 (Pa. Cmwlth. 2000); see also Broadway Penn Mut. Off. Fee L.P. v.
Zoning Bd. of Adjustment of City of Phila. (Pa. Cmwlth. Nos. 2804-2806 C.D. 2010,
filed Apr. 18, 2012).12 Accordingly, Appellants’ Motion to Quash is denied.
Remand
Appellants argue that a remand to the ZBA is required because the ZBA
did not issue findings of fact and conclusions of law as mandated by Sections 754(b)
and 555 of the Local Agency Law, 2 Pa.C.S. §§ 754(b), 555. Applicant rejoins that
the trial court is only required to remand to the ZBA when the record is incomplete.
Applicant declares that, as held by this Court, the record was complete; thus, a
remand is not required.
Section 754(b) of the Local Agency Law provides, in relevant part: “In
the event a full and complete record of the proceedings before the local agency was
made, the court shall hear the appeal without a jury on the record certified by the
agency.” 2 Pa.C.S. § 754(b). Section 555 of the Local Agency Law states: “All
adjudications of a local agency shall be in writing, shall contain findings and the
reasons for the adjudication, and shall be served upon all parties or their counsel
personally, or by mail.” 2 Pa.C.S. § 555.
In Bielby I, this Court determined that the ZBA’s record was complete,
reasoning:
This Court has defined a ‘full and complete
record’ as ‘a complete and accurate record of the
testimony taken so that the appellant is given a
base upon which he may appeal and, also, that the
appellate court is given a sufficient record upon
12
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent.
13
which to rule on the questions presented.’ In re
Thompson, 896 A.2d 659, 668 (Pa. Cmwlth.
2006) . . . (citations omitted). . . .
Kuziak v. Borough of Danville, 125 A.3d 470, 475 (Pa.
Cmwlth. 2015). “Situations in which a record has been
deemed incomplete include such instances where the
record fails to contain a transcript of the proceedings
before the local agency, or where a party refuses to provide
relevant and necessary documentation to the local
agency[.]” Id. (citation omitted).
Here, the ZBA filed a “CERTIFICATION OF INCOMPLETE
RECORD” on April 16, 2018, which stated:
I am the Administrator of the [ZBA] and am
authorized to make this Certification of
Incomplete Record on its behalf. I certify that the
attached constitutes the [ZBA’s] official record of
the proceedings that have occurred to date in this
matter. However, because there is no final,
appealable decision by the [ZBA], the record
cannot be certified as complete.
[R.R.] at 603a. Clearly, the ZBA certified its record as
incomplete because it granted reconsideration of its
November 1, 2017 decision. However, . . . the ZBA was
not authorized to grant reconsideration. Thus, because the
Certification of Incomplete Record states: “the attached
constitutes the [ZBA’s] official record of the proceedings
that have occurred to date in this matter[,]” R.R. at 603a,
and included inter alia, the transcript of the ZBA’s
October 4, 2017 hearing, for purposes of Section 754(a) of
the Local Agency Law, the record was complete.
Bielby I, slip op. at 11.
As to the requirements for written findings, the Court in
Gruzinski v. Department of Public Welfare, 731 A.2d 246,
252[] n.15 (Pa. Cmwlth. 1999), explained that when a fact
finder in an administrative proceeding is required to state
findings in an adjudication[,] the fact finder must include
all findings necessary to resolve the issues. However, the
presence of written findings “goes to the reviewability of
an adjudication, not to its validity.” Madeja v. Whitehall
[Twp.], . . . 457 A.2d 603, 606-[]07 ([Pa. Cmwlth.] 1983).
14
[Here, t]he [ZBA] filed its findings with the trial court,
which was made aware of the [] facts supporting the
[ZBA’s] decision.
Merlino v. Phila. Bd. of Pensions & Ret., 916 A.2d 1231, 1236-37 (Pa. Cmwlth.
2007). Specifically, the ZBA filed its findings of fact and conclusions of law with
the trial court on March 26, 2018. See R.R. at 449a-465a. Accordingly, because the
ZBA’s record is complete and the ZBA filed findings of fact and conclusions of law,
a remand to the ZBA is not warranted.
Variances
Appellants argue that the trial court erred by affirming the ZBA’s grant
of the variances as a valid and binding final decision while simultaneously ruling
that the ZBA failed to reach concurrence on the language of the conditions to be
attached to that grant of variances. Appellants contend that the lack of concurrence
invalidated the entirety of the ZBA’s October 4, 2017 vote to grant the use variances
with conditions, and the trial court’s ruling to the contrary was a clear error of law.
Applicant rejoins that contrary to Appellants’ assertion, the proviso was
the only portion of the ZBA’s decision that was adverse to Applicant and, as such,
the only issue on review before the trial court. See ACS Enters., Inc. v. Norristown
Borough Zoning Hearing Bd., 659 A.2d 651, 653 (Pa. Cmwlth. 1995) (where a party
appeals from a decision of an administrative proceeding, the scope of the appeal is
limited to a review of the parts of the decision adverse to the appellant). Applicant
asserts that the trial court’s review was limited in scope to whether the proviso was
supported by facts in the underlying ZBA record. See id.This Court agrees with Applicant’s statements and the limited issue.
This Court expressly “remand[ed] the matter to the trial court to address Applicant’s
appeals based on the ZBA’s record.” Bielby I, slip op. at 12 (emphasis added).
Further, at the remand hearing, Applicant’s counsel accurately stated:
15
We are here on remand from the Commonwealth Court to
address, really, one issue, and that is whether the proviso
that was issued by the [ZBA] on October 4[, 2017,] was
reasonable or related to a valid zoning interest. And it is
my client’s appeal of that proviso that is the sole issue
before Your Honor.
R.R. at 716a. Accordingly, as the ZBA’s grant of the variances was not before the
trial court, it is not before this Court and will not be considered.
Proviso
Appellants argue that the trial court’s decision to strike rather than
correct the proviso had absolutely no basis in law nor any support in the record, and
its failure to remand the matter to the ZBA for the agency to correct the errors after
holding a new hearing was a clear abuse of discretion. Applicant rejoins that the
trial court acted within its authority to strike the proviso in its entirety.
In arguing whether the trial court abused its discretion or acted within
its authority, both parties misconstrue this Court’s standard of review. As stated
supra, where the parties present no additional evidence, this Court’s review is
limited to determining whether the ZBA, not the trial court, committed an abuse of
discretion or an error of law. See supra note 2, at 6. Consequently, this Court will
review the ZBA’s October 4, 2017 decision to determine whether the ZBA abused
its discretion or erred by issuing the proviso upon which the ZBA conditioned the
variances.
At the outset, the proviso at issue states: “NO PARKING ON PASTORIA
[SIC], CURB CUT ON TULPEHOCKEN ONLY[.]” R.R. at 441a. At the conclusion of
the October 4, 2017 ZBA hearing, the following exchange occurred:
[ZBA CHAIRPERSON] MR. [FRANK] DICICCO
[(DICICCO)]: All right Calendar Number 3 31139, 224-
230 West Tulpehocken. My vote is yes with the following
16
proviso[:] No parking on Pastorius Street, parking
curb cut on Tulpehocken Street only.
[ZBA MEMBER] MR. [CONFESOR] PLAZA
[(PLAZA)]: Yes[,] with proviso.
[ZBA MEMBER] MR. [THOMAS] HOLLOMAN
[(HOLLOMAN)]: Yes[,] with proviso.
....
[COUNSEL]: And you do understand the part of this
that there already is a curb cut on Pastorius[?] You’re
saying --
[] DICICCO: No additional curb cuts on Pastorius.
[COUNSEL]: As long as we’re clear. And we’ll get you
the revised plans. Thank you.
R.R. at 64a-65a (emphasis added). Accordingly, there is no doubt that the ZBA’s
proviso was intended to prohibit additional curb cuts on Pastorius Street.
This Court must determine whether the ZBA erred or abused its
discretion by conditioning the variances with the above proviso. The ZBA’s relevant
Findings of Fact are as follows:
22. [Applicant’s project architect Marc] Pinard [(Pinard)
testified,] the project included proposed parking “along
Pastorius [Street] in front of all of the units that front
there” as well as parking for “the tenants who need to walk
to their units along the west side of the [P]roperty.” He
said additional curb cuts were proposed “along Pastorius
[Street] to accommodate all of that parking.” [R.R. at
17a,] 10/04/[20]17 [Notes of Testimony (]N.T.[)] at [6].
....
51. At several points in [the] hearing, the [ZBA]
questioned whether the parking and curb cuts
proposed for Pastorius Street were necessary and
whether some alternative approach was possible.
52. . . . Plaza said the [ZBA] was “concerned about the
frontage on Pastorius [Street] having such a big - it’s like
17
over 200 linear feet of curb cut.” He asked if [Applicant]
could “reduce that by putting the parking in the rear.”
[R.R. at 34a,] 10/04/[20]17 N.T. at 23.
53. . . . DiCicco expressed agreement with [] Plaza, stating:
[“]My colleague . . . raises a good point. It’s a couple
hundred linear feet of curb cut, that’s excessive. It does
look like a motel. And it’s going to act like a motel.[”]
[R.R. at 39a,] 10/04/[20]17 N.T. at 28.
54. City Planning Commission representative Ronald
Bednar testified that his agency had “no objection to the
granting of the multi-family use, provided that one
curb cut only from Tulpehocken, with no parking on
Pastorius [Street].” [R.R. at 58a, 63a,] 10/04/[20]17 N.T.
at 47, 52.
55. After receiving the Planning Commission’s
recommendation, [] DiCicco asked [Applicant’s]
architect if there was “a way of doing that?” [] Pinard
replied: [“]Certainly. I can’t argue that there is not room
here for as many cars as we want. We’re trying to avoid
changing the appearance of yard and green space.[”] [R.R.
at 58a,] 10/04/[20]17 N.T. at 47.
56. [Counsel] added:
. . . we’re adding additional parking to provide off-
street parking for the dwellers of this [sic]. And
that will be part of their rent. If the solution is that
you say that we don’t have to provide that parking,
well then that will be your decision. And we
would abide by it. And then the people who would
have been parking there will then park on
Tulpehocken [Street].
[R.R. at 59a,] 10/04/[20]17 N.T. at 48.
57. [Counsel] said “if the Board wants to impose the
condition that says that there’s no parking on
Pastorius [Street], I think that is something we would
be interested in having voted as long as my client
agrees.” [R.R. at 60a-61a,] 10/04/[20]17 N.T. at 49-50.
58. [Counsel] then called [Applicant] to testify regarding
the proposed parking.
18
R.R. at 452a, 456a-457a (emphasis added).
Moreover, DiCicco expressly asked Counsel:
So we can either vote this up or down, or we can vote it
with a proviso that’s been suggested by the Planning
Commission, or, this is a question for you, Counselor, and
your clients and the architect, can you go back and see if
there’s a way in which you can get some of the relief
that the community is asking for?
We would be willing to hold that. You may not come to a
decision -
R.R. at 60a (N.T. at 49) (emphasis added). Counsel replied: “So what I would
suggest is . . . - I think if the [ZBA] wants to impose the condition that says that
there’s no parking on Pastorius [Street], I think that is something we would be
interested in having voted, as long as my client agrees.” R.R. at 60a-61a (N.T. at
49-50). A review of the record reveals that Applicant did not object thereto.
Consequently, this Court cannot hold that the ZBA erred or abused its discretion by
issuing the proviso upon which the ZBA conditioned the variances. Accordingly,
the trial court’s ruling striking the proviso is reversed.
Conclusion
For all of the above reasons, the portion of the trial court’s order
affirming the ZBA’s grant of the variances is affirmed, and the portions of the trial
court’s order striking Appellants’ intervention and striking the proviso upon which
the variances are conditioned are reversed.
_________________________________
ANNE E. COVEY, Judge
Judges Cohn Jubelirer and Fizzano Cannon did not participate in the decision in this
case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darin Bielby :
:
v. :
:
Zoning Board of Adjustment of the :
City of Philadelphia and Carla Willard, :
Connie Winters, Michael Ramos, :
Susan Wright :
:
Appeal of: Carla Willard, Connie :
Winters, Michael Ramos, Susan : No. 1843 C.D. 2019
Wright :
ORDER
AND NOW, this 6th day of July, 2021, Carla Willard, Connie Winters,
Michael Ramos and Susan Wright’s (Collectively, Appellants) Application to Quash
Bielby’s Two Zoning Appeals as Moot is DENIED. The Philadelphia County
Common Pleas Court’s (trial court) November 21, 2019 order is affirmed in part and
reversed in part. The portion of the trial court’s order affirming the Zoning Board
of Adjustment of the City of Philadelphia’s grant of the variances is AFFIRMED.
The portions of the trial court’s order striking Appellants’ intervention and striking
the proviso upon which the variances are conditioned are REVERSED.
_________________________________
ANNE E. COVEY, Judge