Bailey v. Zoning Board of Adjustment
Bailey v. Zoning Board of Adjustment
Dissenting Opinion
dissenting.
I agree with the majority’s conclusion that “the Planning Commission has the authority to adopt rules based on its interpretation of [Philadelphia’s Zoning Code § 14-226] in order to further its administration of the ordinance.” Majority Opinion at 502. Further, I agree with the majority that the word “change” set forth in Section 14-226(2)(b) of the Code is not so clear and unambiguous as to not be subject to further interpretation. I disagree, however, with the majority’s implicit conclusion that this Court’s interpretation of the term “change” set forth in Section 14-226(2)(b) is more favorable than that established by the Planning Commission in implementing the Minor Modification Policy, a plan which was established by the Commission more than thirty years ago. Accordingly, I dissent.
As noted, the majority does not conclude that the Planning Commission lacked the authority to adopt a policy, such as the Minor Modification Policy, where such policy is reasonable and tracks the meaning of the law being interpreted. Specifically, in discussing whether Section 14-226(2) (b) absolutely precludes a policy of this nature, the majority concedes that given the purpose of the provision, i.e., to encourage planned residential developments on large tracts of open space,
it seems unlikely that City Council intended such a strict interpretation of the word “change” so that de minimis changes which fail to appreciably divert from a Master Plan, such as the removal of a parking space or the addition of hedges to the side of a building, would have to be presented and formally approved before the Planning Commission and City Council Clearly, if all de minimis changes had to be*170 approved according to the Amendment Procedure, development would constantly be stalled, which would ultimately discourage developers from building in RC-6 Residential Districts and defeat the very purpose for such Districts. Thus, as even Appellees agree, we may assume that City Council did not intend such an absolutist reading of Section 14-226.
Id. at 504. So while it appears that the majority would approve of a policy that implemented its notion of de minimis, here, the majority concludes that the specific policy implemented by the Planning Commission some thirty years ago goes beyond what it considers to be legitimately de minimis.
In my view, this Court’s interpretation of the word “change” for purposes of Section 14-226(2)(b), is no more reasonable than that given by the Planning Commission by way of the Minor Modification Policy. As noted, the City has operated pursuant to the policy for the last thirty years and, in my view, if Council was not satisfied with this policy, it could have, at anytime, legislatively overruled the policy by simply amending the Code to eliminate the practice.
. The majority notes, in footnote 14, the following in this regard:
because the record fails to establish whether the Planning Commission ever actually notified City Council of the Minor Modification Policy prior to the instant dispute, we cannot find that City Council’s failure to legislatively overrule the Policy evinces its approval.
Majority Opinion at 499 n. 14.
Contrary to the majority, I do not find the Commission’s failure to have specifically notified City Council of this policy as relevant in determining whether Council was aware of the policy. The evidence of record indicates that the policy was adopted in 1971, that the Commission has utilized the policy since then, and that the criteria implemented by the Planning Commission to determine what constitutes a minor modification was reduced to writing in 1986. Given this background, I fail to see to how City Council could have been unaware of the policy for such an extended period of time. Moreover, there is nothing in the record indicating that the City was unaware of the policy over the past quarter century.
Opinion of the Court
OPINION OF THE COURT
Appellants Shawmont Development, Inc., and its president, James B. Kravitz, appeal from the Commonwealth Court’s order finding that the Philadelphia Planning Commission erroneously permitted Appellants to make changes to an approved development plan (a “Master Plan”) for a planned residential development. We affirm the order of the Commonwealth Court, albeit for different reasons.
In 1971, the Philadelphia City Council added Section 14-226 to the Philadelphia Zoning Code, which established a RC-6 Residential District classification. Section 14-226 describes a RC-6 Residential District as follows:
This district is intended to encourage multiple use development on large tracts of land in accordance with a plan of development approved by and filed with the City Planning Commission. Said plan shall be in conformity with stated standards as to type and use, area requirements, off-street parking and loading, and signs.
It is the intent of this district to permit development of ground with the view toward preservation, to the extent possible, of existing topography, trees, natural waterways, and other natural amenities unique to the property.
It is intended that each development be undertaken with the knowledge that no zoning or building permit may be ob*153 tained which is not in accord with the approved development plan.
Phila. Zoning Code § 14-226(1). A RC-6 Residential District is created upon the Planning Commission’s and City Council’s approval of a development plan describing the development of the entire area that will make up the proposed District. See Phila. Zoning Code § 14-226(2)(a). Once a development plan is approved it becomes the Master Plan for the newly created RC-6 Residential District. A developer may then obtain a zoning and use registration permit from the Philadelphia Department of Licenses & Inspections (“L & I”) to develop the District in a manner that is consistent with the Master Plan.
Section 14-226 does not include a sunset provision, i.e., a provision that would terminate a Master Plan if the RC-6 Residential District is not entirely developed after a specified number of years.
At any time after final adoption, the owner of the property or his authorized agent, may apply to the City Planning Commission for changes in the approved development plan; provided, that at the time said change is requested, that an amended plan is submitted to the City Planning Commission and the City Council. The City Planning Commission shall submit in writing to the Council its recommendations regarding the amendments. Within 45 days of its receiving the written recommendation from the Commission, the Council shall reply in writing informing the Commission as to the action the Council has taken in approving, disapproving, amending or deferring the change. If the Council does not reply in writing to the Commission within the aforementioned 45 day period, Council’s approval will be presumed. And further provided, that no change shall be approved by the City Planning Commission which is contrary to the*154 criteria set forth in this Chapter, or which permits a use not provided in this Chapter.
Phila. Zoning Code § 14-226(2)(b).
Subsequent to the adoption of Section 14-226 and the creation of several RC-6 Residential Districts, the Planning Commission adopted an administrative policy of internally approving minor changes to a Master Plan without submitting the changes to formal review by the Planning Commission or City Council (“Minor Modification Policy”).
a) The changes proposed result in less Gross Floor Area (G.F.A.) or do not increase the amount by more than 1% of the total G.F.A. permitted by the Master Plan;
b) The changes proposed result in less Building Coverage or do not increase the amount by more than 1% of the total Building Coverage permitted by the Master Plan;
*155 c) The changes proposed result in less Impervious Coverage4 or do not increase the amount by more than 1% of the total Impervious Coverage permitted by the Master Plan;
d) The changes proposed result in less dwelling Units [as allowed under the Master Plan], or if the number of dwelling Units are proposed to increase, they do so in accordance with the above paragraphs; and
e) If buildings or access roads are proposed to be relocated, the relocation must result in equal or less environmental impact than the impact of the original location, the relocation must comply with paragraphs a through c above, and the resultant relocation shall not move any buildings or roads closer to the district boundary than permitted by the Master Plan.
Criteria for Staff Approval of Master Plan Modifications, R.R. at 63a.
In 1972, the Planning Commission and City Council approved a Master Plan creating a RC-6 Residential District of thirty-six acres in Roxborough, a community in northwest
Two years later, Balcorp submitted a request for changes to the 1985 Master Plan and an amended plan to the Planning Commission. After initially reviewing the proposed changes, the Planning Commission’s staff concluded that the changes were minor modifications to the 1985 Master Plan and notified L & I that the modifications to the Master Plan had been approved.
Balcorp, however, never developed Hunters Pointe and sometime after 1988, a new unidentified owner acquired the
In 1996, another request to change the 1985 Master Plan and an amended plan was submitted to the Planning Commission but this time from Appellant Shawmont Development. Specifically, Shawmont Development sought to make the following changes to the 1985 Master Plan: reduce the number of buildings to be developed from ten to six; change the use of the buildings from condominiums to apartments; add an in-ground swimming pool, guardhouse, and clubhouse; increase the number of dwelling units from 202 to 204; make 61 more parking spots; reduce the total impervious coverage from 284,080 feet to 211,233 feet; and increase the gross floor area by approximately 0.78%. Although the changes were substantially similar to the changes sought a year earlier by Cheshire Group, N.T., 9/23/99, at 59-60, the Planning Commission determined that the changes proposed by Shawmont Development qualified as minor modifications to the 1985 Master
In August 1997, Shawmont Development commenced development of Hunters Pointe. Upon observing the construction and learning that L & I had granted Shawmont Development a zoning permit to develop Hunters Pointe in a manner that deviated from the 1985 Master Plan, Appellees, representatives of civic associations in areas neighboring Hunters Pointe,
Appellees appealed from the order of the Zoning Board to the trial court. The trial court affirmed the Zoning Board’s decision that the Board lacked jurisdiction and determined that it was the appropriate forum for an appeal from the Planning Commission’s decision authorizing a zoning permit for a RC-6 District. Accordingly, the trial court reviewed the Planning Commission’s Minor Modification Policy and concluded that it was valid as a reasonable interpretation of Section 14-226 by an expert agency responsible for administering the ordinance.
On appeal, the Commonwealth Court reversed, finding that the Planning Commission lacked the authority to implement the Minor Modification Policy because there was no language in Section 14-226 giving the Planning Commission the authority to short-circuit the ordinance’s procedure for making changes to a Master Plan, even if those changes were minor. Therefore, the Commonwealth Court held that the Planning Commission erroneously approved the changes submitted by Shawmont Development pursuant to the Minor Modification Policy and improperly authorized L & I to issue a zoning permit to Shawmont Development. We subsequently granted allocatur to determine first, whether the Commonwealth Court properly concluded that Section 14-226 does not provide the Planning Commission with the authority to independently approve minor changes to a Master Plan, and second, if Section 14-226 provides the Planning Commission with the authority to independently approve changes, whether the Commonwealth Court failed to give appropriate deference to the Planning Commission’s Minor Modification Policy.
An agency’s authority to adopt rules and regulations regarding an ordinance concerns a matter of law, and therefore our standard of review is plenary. See Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167, 1170 (1995). An agency clearly has the authority to adopt rules with respect to
Here, no provisions in Section 14-226 specifically direct the Planning Commission to establish rules regarding the administration of the ordinance. Nonetheless, Section 14-226 delegates substantial administrative responsibility to the Planning Commission. As noted above, the ordinance requires the Planning Commission, along with City Council, to review and approve a development plan as a Master Plan for a RC-6 Residential District. Phila. Zoning Code § 14-226(1). Once a Master Plan is approved, the Planning Commission is also responsible for reviewing development plans to make sure that they comply with the Master Plan. See Phila. Zoning Code
With regard to changing a Master Plan, developers must submit requests for changes to the Planning Commission and the Planning Commission is in charge of initially reviewing those changes. Phila. Zoning Code § 14-226(2) (b). Although the Planning Commission must then make recommendations of approval or disapproval of the changes to City Council, City Council relies heavily on the Planning Commission’s expert analysis and if City Council fails to act within forty-five days of receiving the Planning Commission’s recommendation approving the changes, the Planning Commission’s recommendation stands as thé final decision. See id.; Phila. City Code and Home Rule Charter § 4-604 annotation 1. Based on these substantial tasks assigned to the Planning Commission under Section 14-226, we conclude that the Planning Commission has the authority to adopt rules based on its interpretation of the ordinance in order to further its administration of the ordinance. See Borough of Pottstown, 712 A.2d at 743; Uniontown Area Sch., 313 A.2d at 168-69. Moreover, given that the Planning Commission is responsible for reviewing development plans to ensure that they comply with the Master Plan, as well as for initially reviewing submissions for changes to a Master Plan, we find, contrary to the Commonwealth Court, that the Planning Commission was sufficiently empowered to implement a minor modification policy to administer the review process.
Like statutes, the primary objective of interpreting ordinances is to determine the intent of the legislative body that enacted the ordinance. See 1 Pa.C.S. § 1921.
Here, Section 14-226(2) states that a developer in a RC-6 District may apply for “changes” in a Master Plan by submitting an amended plan to the Planning Commission and to City Council. Phila. Zoning Code § 14-226(2). The provision then sets forth a procedure for determining whether such changes shall be allowed as amendments to a Master Plan, and that procedure, as discussed previously, calls for a formal review of the changes by both the Planning Commission and City Council (the “Amendment Procedure”). Id. Although neither Section 14-226 nor the Philadelphia Zoning Code define the word “change,” the Planning Commission interpreted “change” as only applying to changes that appreciably alter the Master Plan. As a result of its interpretation, the Planning Commission adopted the Minor Modification Policy as a means of internally approving de minimis changes that unexpectedly arose as development progressed pursuant to a plan that was consistent with the Master Plan. As Martin Soffer, the Environmental Review Officer for the Planning Commission, explained:
One [of the reasons for the Minor Modification Policy] is the experience we have with development is we do not get as built plans. Sometimes plans come in with walls showing a certain thickness and, in reality, the thickness of the walls could be one foot so the actual buildings could be slightly, when I say slightly off, due to the engineering and conditions, slightly off from what’s on the plan but usually within a few feet.
... Sometimes you have problems where the footings of a structure need to go in. You may shift the building slightly in terms of what’s there in terms of putting in supports, connections into infrastructure, things like that and some*165 times we experience that we have to shift slightly to get Sanitary to work in their ground, the ground doesn’t perk, and you wind up shifting so a particular house can be built to allow Sanitary or stormwater management within the same lot and taking it to the ground.
N.T., 2/8/99, at 96-97 (emphasis added). Rick Lombardo, Chief Project Manager for the Planning Commission, further described the Minor Modification Policy as follows:
The modification process is a process by which we look at a submission and compare it to the plan of record and determine whether or not there’s any change or not. I’m referring to the word modification, basically the finding was or there was not a change from the approved plan to warrant sending everything back to City Council and the Planning Commission. That everything that was proposed and the newly submitted plan were equal to or less than the plan of record.
N.T., 12/17/97, at 20-21 (emphasis added).
Depending on its context, the word “change” has a wide range of possible meanings, extending from very small and unnoticeable deviations to complete transformations of original objects. Therefore, we cannot say that the plain use of the word change in Section 14-226 is so clear and unambiguous that it is not open to interpretation. See Baker v. Retirement Bd. of Allegheny County, 374 Pa. 165, 97 A.2d 231, 234 (1953); see also Envtl. Def. Fund, Inc. v. Envtl. Prot. Agency, 82 F.3d 451, 464 (D.C.Cir. 1996) (Congress’ use of word “support,” which has large scope of possible meanings, was not completely clear and was therefore subject to interpretation). In determining whether City Council intended the word “change” to include all changes, no matter how minute, or only those changes that notably differ from the Master Plan, we find it instructive to look at the goals of the ordinance and the consequences of various interpretations of the ordinance. See 1 Pa.C.S. § 1921. The clear purpose behind the creation of a RC 6 Residential district is to encourage planned residential developments on large tracts of open space. See Phila. Zoning Code § 14-226(a). Given this
Accordingly, we hold that the Planning Commission improperly approved the changes submitted by Appellants pursuant to its Minor Modification Policy and therefore, erroneously authorized L & I to issue a zoning and use registration permit to Appellants allowing them to develop Hunters Pointe in accordance with the approved changes. Thus, we affirm the order of the Commonwealth Court which reversed
. Generally, zoning permits expire after a year if construction has not begun. See Phila. Zoning Code § 14-1703(4),
. Pursuant to amendments to the Zoning Code by the City of Philadelphia following the Commonwealth Court’s order in the instant case, the provisions in Section 14-226(2)(b) now appear in Section 14-226(2)(c) of the Zoning Code.
. There is no evidence in the record that City Council endorsed or saw the Policy before it was adopted.
. Impervious coverage means the amount of pavement to be used at the development. N.T., 12/17/97, at 40.
. Although the Minor Modification Policy was developed in the early 1970s, it was not reduced to writing until 1986. Id.
. Members of the Planning Commission testified that they would also notify City Council of any minor modifications it approved to a Master Plan. N.T., 12/17/97, at 21-22.
. The record is unclear whether the Planning Commission ever notified City'Council that it approved these changes as minor modifications.
. The minor modifications to the 1985 Master Plan approved by the Planning Commission in 1988 are not described in the record.
. The Planning Commission found that Shawmont Development's proposed changes would not place the buildings any closer to the property's boundary lines than that allowed for under the 1985 Master Plan and therefore, the changes would not cause a greater negative impact on the environment. N.T., 12/17/97, at 40, 43.
. Members of the Planning Commission testified that they notified City Council by forwarding a copy of the letter it sent to Shawmont Development approving the plan to Councilman Nutter’s office and calling Councilman Nutter's office to inform him that the modifications had been approved. N.T., 12/17/97, at 21-22, 27. However, there is no finding by the trial court that such notice was given to Councilman Nutter. Additionally, at the zoning board adjustment hearing, Councilman Nutter testified that he never received a copy of the letter notifying Shawmont Development that the plan was approved. N.T., 12/17/96, at 64. Councilman Nutter also testified that he could not confirm whether someone from the Planning Commission had called his office. Id.
. On December 22, 1996, Hunters Pointe Associates, L.P. acquired Hunters Pointe. Kravitz and Shawmont Development are the principals of Hunters Pointe Associates.
. Appellee Elizabeth Bailey is president of the Derling Park Civic Association, Appellee Sandy Wynn is president of The Green Tree Run Community Association, Appellee Joseph Walker is president of the Shawmont Valley Association, and Appellee Richard Metz is president of the Roxborough Green Space Project.
. After noticing the development at Hunters Pointe in August 1997, Appellees contacted Councilman Nutter to find out whether a zoning permit had been granted. On September 12, 1997, Councilman Nutter's office learned that L & I had granted Shawmont Development a zoning permit and subsequently notified Appellees of that fact.
. In making this determination, the Zoning Board noted that because Section 14-226 makes the Planning Commission and City Council solely responsible for deciding matters regarding a Master Plan for a RC-6 District, L & I performs a purely ministerial act in issuing a zoning permit based upon a Master Plan. See Lindy Homes, Inc. v. Sabatini, 499 Pa. 478, 453 A.2d 972 (1982) (where legislative body provides for right to building permit, "the issuance thereof by the proper official is no more than the performance of a ministerial act which admits of no discretion in the municipal officer”). Thus, the Zoning Board found that because L & I did not exercise its discretion in issuing the zoning permit, it did not have jurisdiction to review whether the zoning permit was properly issued. See Phila. Zoning Code § 14-1801 (zoning board may decide appeals where error is alleged in any department order, requirement, decision or determination).
. In concluding that the Planning Commission’s Minor Modification Policy was reasonable, the trial court adopted the reasoning of Stephanie L. Franklin Súber, the former City Solicitor for Philadelphia, in her September 26, 1997 letter to Councilman Nutter. In late August or early September 1997, Councilman Nutter sought an opinion from Ms. Franklin Súber about whether the Planning Commission's Minor Modification Policy was proper under Section 14-226. After reviewing the facts and applicable law, Ms. Franklin Súber made the following conclusion:
I believe the "minor modification” policy is defensible. At the least, I am persuaded that it would be inappropriate for the City Solicitor, by opinion, to overturn a well-settled, reasonable, and previously-un*160 challenged policy established and enforced by the administrative body with expertise in interpreting the ordinance provisions in question. I believe if such policy is to be overturned. City Council is the appropriate body to do so by amending § 14-226.
Letter from Stephanie L. Franklin-Suber to Michael Nutter (Sept. 26, 1997), R.R. at 54a. Accordingly, in finding that the Minor Modification Policy was reasonable, Ms. Franklin Súber, and in turn the trial court, relied heavily on the fact that the Planning Commission had applied the Policy for years and that City Council had never questioned it. However, because the record fails to establish whether the Planning Commission ever actually notified City Council of the Minor Modification Policy prior to the instant dispute, we cannot find that City Council's failure to legislatively overrule the Policy evinces its approval.
. We find that the rules governing an agency’s power to administer a statute are equally appropriate when considering an agency’s power to administer a municipal ordinance.
. The recent amendments to the Zoning Code also address the Planning Commission’s responsibility to review development plans to determine whether they coincide with the Master Plan. Section 14-226(2)(b) of the Zoning Code now states:
Determination of Compliance with the Approved Development Plan. The Planning Commission in reviewing plans submitted by the owner of the property or their authorized agent for issuance of zoning permits shall determine that all of the following applicable conditions have been complied with. If the submission fails to meet any of the applicable conditions, it shall not be found to be in accordance with the approved master plan.
Phila. Zoning Code § 14-226(2)(b).
. De minimis is an adjective meaning trilling or minimal. Black's Law Dictionary (7th ed. 1999).
. When interpreting the meaning of municipal ordinances, we are guided by the principles of statutory construction. Borough of Fleetwood v. Zoning Hearing Bd., 538 Pa. 536, 649 A.2d 651, 656 (1994).
. De minimis non curat lex is a common legal principle meaning that the law does not care for small or trifling matters. Black's Law Dictionary 431 (7th ed. 1999). Pursuant to this principle, courts disregard trivial matters that serve merely to exhaust the court's time. District of Columbia v. Orleans, 406 F.2d 957, 959 (D.C.Cir. 1968). We agree with the sentiments of the United States Court of Appeals for the District of Columbia that this principle may also be soundly applied when determining the intent of government entities with regard to the role of administrative agencies responsible for regulatory programs. See Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C.Cir. 1979). Thus, we are reluctant to interpret Section 14-226 in such a way that would "mandate pointless expenditures of effort” by City Council. See id.
. This interpretation is consistent with traditional zoning laws. Under traditional zoning laws, a party seeking a change from a zoning ordinance ("a variance”) has to meet a heavy three-prong burden. See Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 501 Pa. 550, 462 A.2d 637, 640 (1983). It is well-established, however, that a developer who seeks a de minimis change from a zoning ordinance does not have to meet the heavy burden for obtaining a variance. Stewart v. Zoning Hearing Bd. of Radnor Township, 110 Pa.Cmwlth. 111, 531 A.2d 1180, 1182 (1987). This de minimis exception “applies where only a minor deviation from the zoning ordinance is sought and rigid compliance is not necessary to protect the public policy concerns inherent in the ordinance." Constantino v. Zoning Hearing Bd. of Borough of Forest Hills, 152 Pa.Cmwlth. 258, 618 A.2d 1193, 1196 (1992). There are no set criteria for a de minimis variance. Rather, de minimis variances are granted according to the particular circumstances of each case. See Stewart, 531 A.2d at 1182 (de minimis variance exception proper where landowner wanted to vary site a few feet short of one acre requirement); Pyzdrowski v. Bd. of Adjustment of City of Pittsburgh, 437
. As this Court noted in Cheney v. Village 2 at New Hope, Inc., 429 Pa. 626, 241 A.2d 81 (1968), "[o]ne of the most attractive features of Planned Unit Development is ... the chance for the builder and the municipality to sit down and tailor the needs of the community and the requirements of the land on which it is to be built.” Id. at 87.
. According to the Pennsylvania Municipal Planning Code, because the public has an interest in the preservation and integrity of an
. See Commonwealth v. Romero, 555 Pa. 4, 722 A.2d 1014, 1016 (1999) (this Court may affirm decision of lower court if result is correct on any ground without regard to grounds which lower court itself relied upon).
Reference
- Full Case Name
- Elizabeth BAILEY, Sandy Wynn, Joseph Walker, and Richard Metz v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, the City of Philadelphia and James B. Kravitz/Shawmont Development, Inc. Appeal of James B. Kravitz/Shawmont Development Inc.
- Cited By
- 52 cases
- Status
- Published