IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Battersea Ventures, L.P., :
Appellant :
:
v. : No. 1440 C.D. 2019
: Argued: October 13, 2020
Philadelphia Zoning Board of :
Adjustment and The City of :
Philadelphia, UCFP LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 18, 2020
Battersea Ventures, L.P. (Objector) appeals from an Order of the Court of
Common Pleas of Philadelphia County (common pleas) dated August 14, 2019,
which affirmed the Decision of the Philadelphia (City) Zoning Board of Adjustment
(Board) denying Objector’s appeal from the issuance of a zoning/use permit (Permit)
by the Philadelphia Department of Licenses and Inspections (Department) to UCFP
LLC (Developer).1 The Permit granted Developer permission to erect a 10-story,
multi-family condominium building with a parking garage located below the
finished floors (Proposed Development) on the property situated at 2100 Hamilton
Street (Property). The Board denied Objector’s appeal from the issuance of the
Permit, determining Objector lacked standing to appeal and that the proposed
1
The Board and the City are not participating in this appeal.
development was consistent with the applicable requirements set forth in The
Philadelphia Code.2 Objector is the owner of Dalian on the Park (Dalian), a 300-
unit residential development located across the street from the Property. On appeal
to this Court, Objector argues that it has standing to challenge the issuance of the
Permit and that the Board erred in concluding the Proposed Development is
consistent with the Code. Upon review, for the reasons that follow, we affirm.3
2
In their briefs, both Objector and Developer cite sections of the Code not included in the
record. Pursuant to Section 6107(a) of the Judicial Code, “[t]he ordinances of municipal
corporations of this Commonwealth shall be judicially noticed.” 42 Pa.C.S. § 6107(a). Therefore,
the Court takes judicial notice of the Code. Department’s website, https://www.phila.gov/
departments/department-of-licenses-and-inspections/resources/applicable-codes/, contains a link
to the Code, available at https://codelibrary.amlegal.com/codes/philadelphia/latest/
philadelphia_pa/0-0-0-203439#JD_Title14 (last visited Nov. 17, 2020).
3
Also pending in this matter is an Application in the Nature of a Motion to Dismiss for
Mootness (Application) filed by Developer, wherein Developer avers this appeal is moot because,
while this case was pending before common pleas, Developer obtained another zoning/use permit
revising the Permit at issue in this appeal. Objector filed an Answer denying the legal conclusions
in the Application. Shortly before argument in this case, Developer, Objector, and the Board filed
a stipulation with this Court, wherein Developer agreed, among other things, to withdraw its
Application. (Stip. ¶ 2.) Accordingly, we will mark the Application withdrawn. However, the
question of mootness is jurisdictional in nature, which a court can raise sua sponte. Harris v.
Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009). In its application for the subsequent zoning/use
permit, Developer stated it was submitting “revised plans for [the] project previously approved . . .
without prejudice to, or abandonment of, all prior permits and approvals at the property.” (Answer,
Ex. A.) In reserving these rights, Developer essentially preserved its ability to reuse the Permit at
issue in this case, thereby making that Permit’s continued viability not moot. Because the
subsequent zoning/use permit is tied to the Permit at issue here and because Developer specifically
stated it was not abandoning that Permit, we conclude that this appeal is not moot and proceed to
the merits.
2
I. FACTUAL BACKGROUND AND PROCEDURE
A. The Property
The Property is situated at the corner of Hamilton and 21st Street and is
located in an RM-4 zoning district,4 which allows for residential multi-family use,
and within the Benjamin Franklin Parkway Overlay. Developer acquired the
Property from Pennsylvania Avenue Land Development Limited Partnership, L.P.
(PLDLP), through a Quitclaim Deed in Lieu of Foreclosure dated January 15, 2011.
(Decision, Finding of Fact (FOF) ¶ 9; Reproduced Record (R.R.) at 259a-67a.) The
Property, in its entirety, is situated within an open-air railroad cut that is
“approximately 30[-]feet below street level.” (FOF ¶ 8.) The Property “consists of
three parcels,” two of which Developer owns in fee and the third being an air rights
parcel. (Id. ¶ 10; R.R. at 259a-67a.) With respect to the air rights parcel,
Developer’s ownership interests include the “air rights space being located [22] feet
6 inches (22’6) above the top of the existing railroad tract” and “an easement to
locate and erect . . . walls, piers, columns, supports, footings[,] and foundations”
below the air rights parcel. (FOF ¶ 11; R.R. at 261a-62a.)
On December 21, 2000, prior to Developer’s acquisition of the Property,
Department issued a zoning/use permit to PLDLP (2000 Permit) to “relocate lot lines
to create 1 lot from 3 lots” and to “[e]rect a 10[-s]tory [c]ondominium.” (FOF ¶ 12;
R.R. at 520a.) Department issued a second identical permit to PLDLP on December
27, 2001 (2001 Permit). (FOF ¶ 12; R.R. at 524a.) PLDLP began construction on
the Property, including erecting columns and foundations, but did not complete
development. (FOF ¶¶ 51-52, 66.)
4
The Board appears to have mistakenly identified the Property as being located in an R-3
zoning district in Finding of Fact 8. However, elsewhere in its findings, the Board cites to
testimony that correctly identified the Property as being located in an RM-4 zoning district.
3
B. The Proposed Development
After acquiring the Property, Developer, like its predecessor, proposed to
construct a 10-story condominium building on the site. On March 31, 2018,
Department issued the Permit to Developer permitting it to build a 125-foot, 10-
story, 33-unit, multi-family condominium building with “underground parking”
consisting of 48 parking spaces, including 2 handicap spaces, 1 of which is a van
accessible space, 4 electric car spaces, and 11 bicycle spaces. (Id. ¶ 1; R.R. at 257a.)
Objector appealed the issuance of the Permit to the Board.
C. Appeal to the Board
The Board considered Objector’s appeal at public hearings held on August 21,
2018, and September 25, 2018. Before the Board, Objector argued, in relevant part:
a. That the Property remained three separate legal parcels and
[Department] therefore erred in treating it as a single zoning lot;
b. That the area of the air rights parcel should not have been included
in calculating the square footage of the Property;
c. That [Department] erred in measuring proposed height from street
level rather than the bed of the railroad cut[; and]
d. That [Department] erred in treating the proposed parking levels as
an “underground garage” and excluding them from the gross floor
area calculation[.]
(FOF ¶ 13.) In support of these arguments, Objector presented the testimony of a
Former Commissioner of Department, Bennett Levin.5 He stated that the 2000 and
2001 Permits issued to PLDLP, which authorized consolidation of the three parcels
5
The testimony of the Former Commissioner can be found on pages 78a-95a and 225a-
28a of the Reproduced Record.
4
and the erection of a 10-story condominium building, lapsed because construction
was not completed. (FOF ¶ 18(b).) Further, the Former Commissioner opined that
since no deed of consolidation was filed by PLDLP to vest the consolidation portion
of the permits, that portion also expired. (Id.) When asked by the City’s attorney
what section of the Code in effect in 2000 and 2001 required a deed of consolidation
to be filed to vest a permit for consolidation, the Former Commissioner could not
identify a particular section but stated the requirement that a deed of consolidation
be filed “existed in 1995 when [he] was commissioner. Whether it was in the [C]ode
or by regulation that was the practice back then.” (R.R. at 91a-92a; see also FOF ¶
27.)
With respect to the lot area of the Property, the Former Commissioner stated
that the air rights parcel should not have been included in the measurement of the lot
area because the air rights parcel is not at ground level, which he believed was the
bottom of the railroad cut. By including the air rights parcel in the measurement of
the lot area, the Former Commissioner opined, the allowable gross floor area for the
proposed development was overestimated. (FOF ¶ 18(c), (e).) Based upon his belief
that the ground level of the Property was the bottom of the railroad cut, rather than
the area at street level, the Former Commissioner concluded that the proposed
parking garage is, in fact, aboveground and should have been included in the gross
floor area calculation. For the ground level of the Property to be the equivalent of
street level, the Former Commissioner stated, the railroad cut would have “to be
filled.” (Id. ¶ 18(c).) The Former Commissioner testified that if Developer’s plan
had come before him when he was a commissioner, he “would have revoked the
[P]ermit.” (Id. ¶ 19.)
5
Objector also presented the testimony of the Director of Development for the
Dalian, Marston Smith.6 When asked “[w]hat objection does [the] Dalian . . . have
with the project,” the Director of Development stated that Objector was excluded
from the review process, that “[t]here was no civil design review [b]oard
processing,” and that the proposed development “will cast a shadow [] and [] will
interfere with [the] views from our property.” (R.R. at 210a-11a; see also FOF ¶¶
89-90.) When asked by Developer’s attorney, “[is] your only objection that the
[P]ermit does not comply with the [] Code’s requirements,” the Director of
Development responded “[y]es.” (FOF ¶ 93.)
The City presented the testimony of the Zoning Examiner, Cheli Dahal, who
reviewed Developer’s zoning application.7 Relying upon the site plans submitted by
Developer, she measured ground level from street level and calculated the allowable
gross floor area using the lot area reflected on the site plan. (Id. ¶ 32.) As to
consolidation, the Zoning Examiner testified that she reviewed the history of the
Property, including the 2000 and 2001 Permits, and concluded that the Property
consisted of a single consolidated lot. (Id. ¶ 31.) After review of the site plans and
permit application, the Zoning Examiner determined that the permit should be
granted to Developer as-of-right. (Id. ¶¶ 33-34.)
The City next presented the testimony of Department’s Director of
Development Services, Elizabeth Baldwin.8 She disagreed with the Former
Commissioner’s testimony that Department’s policy during 2000/2001 required a
6
The testimony of the Director of Development for the Dalian can be found on pages 210a-
25a of the Reproduced Record.
7
The testimony of the Zoning Examiner can be found on pages 96a-99a of the Reproduced
Record.
8
The testimony of Department’s Director of Development Services can be found on pages
100a-03a of the Reproduced Record.
6
deed of consolidation to consolidate separate parcels. (Id. ¶ 38.) She stated that
since 2012 the Code has required a deed of consolidation to vest a consolidation
permit, but that such deed was not required before 2012. (Id.) The Director of
Development Services agreed with the Zoning Examiner that the three parcels
making up the Property had been consolidated by the 2000 Permit. (Id. ¶ 39.) When
asked by Developer’s attorney whether Department, before 2012, required an
application to get temporary account numbers from the Philadelphia Office of
Property Assessment (OPA) when seeking to consolidate parcels and that the
temporary numbers would only become permanent when a deed was filed with the
recorder of deeds, she responded all “[t]hat happened [] outside of zoning” but she
“believe[d] that to be the process.” (R.R. at 103a.) When asked whether Department
would treat the three parcels as a single zoning lot regardless of whether they had
been previously consolidated, Department’s Director of Development Services
replied,
[t]he zoning record defines the zoning lot. Regardless of ownership, if
these are three separate lots reflected in the zoning record, then we
consider those three separate lots. However, if there is no zoning record
and there are two separate lots that have essentially been used as one
zoning lot, then we recognize that.
(FOF ¶ 40.) She also stated that she was not prepared to testify as to whether it was
appropriate to consider the proposed parking garage underground. (Id. ¶ 43.)
Developer presented the testimony of its Engineer, Tim Boles. The Engineer
testified9 that the site plan, which is based upon a prior survey of the Property,
9
The testimony of Developer’s Engineer can be found on pages 111a-25a of the
Reproduced Record.
7
reflects a lot size of 27,050 square feet at street level and is consistent with the 2001
Permit. (Id. ¶¶ 47-48.)
Developer next presented the testimony of its Architect, Chris Blakelock.10
He stated that in creating the plans for the project his intentions were “to establish
the limits of our [floor area ratio] and our height and design a building to fit within
those.” (Id. ¶ 54.) He explained that the allowable gross floor area is calculated by
multiplying the lot area, which is taken from the survey, by three and a half, the floor
area ratio in the RM-4 zoning district. (Id. ¶¶ 55-56.) He stated that “[p]arking does
not count” against the allowable gross floor area and, therefore, the parking garage
in this case was not counted against the allowable gross floor area. (Id. ¶ 57.)
As to height, he testified that the permitted height in the Benjamin Franklin
Parkway Overlay is 125 feet and that height is measured
from the average ground level, which is the way it’s done using the []
[C]ode definition, and in our case, we had to take the ground level, the
finished grade level at the principal corners of the footprint of the
building, average them, and that establishes the average ground level.
(Id. ¶ 58.) In this case, the Architect explained that the base of the building is at
street level, that there are foundations between the street level and the bottom of the
railroad cut, and that height is not measured from where the foundations begin
because that is not the base of the building. (Id. ¶ 74.)
Lastly, Developer presented the testimony of a Licensed Engineer, Michael
Tantala, as an expert witness.11 The Licensed Engineer testified that in 2001 a permit
for a lot line relocation or consolidation would not need to be recorded to vest. (Id.
10
The testimony of Developer’s Architect can be found on pages 126a-72a of the
Reproduced Record.
11
The testimony of the Licensed Engineer can be found on pages 173a-200a of the
Reproduced Record.
8
¶ 79.) He further opined that while building permits expire, “lot consolidations do
not.” (R.R. at 194a.) Citing a Code Bulletin as support, he testified that deed
descriptions or tax groupings do not supersede zoning records and, therefore, to the
extent the prior deeds or OPA treats the three parcels as unconsolidated, those are
not controlling. (FOF ¶ 85.)
After the hearings, Objector and Developer submitted briefs to the Board.
After review of the briefs, the Board voted to deny Objector’s appeal on October 10,
2018. (Id. ¶ 99.) The Board issued findings of fact and conclusions of law on April
8, 2019. In addition to the relevant Findings of Fact cited above, the Board made
the following pertinent conclusions of law:
6. In issuing the challenged permit, [Department] determined the
[P]roposed [D]evelopment met all applicable requirements of the []
Code. The evidence of record and the relevant Code language support
this conclusion.
7. With regard to the lot consolidation, the Board found the testimony
of the City’s witnesses and the expert witnesses called by the permit
holder both credible and persuasive. While a consolidation requested
today would require the filing of a deed of consolidation in order to be
perfected, there was no such requirement when the 2001 and 2000
[P]ermits were issued. The prior owner obtained a by-right permit for
the consolidation and undertook work on the [P]roposed
[Development’s] foundation after obtaining the permit. [Department],
the agency charged with administering the [] Code, found this sufficient
to vest the permit insofar as the lot consolidation was concerned. The
Board agrees and accordingly finds that the parcels are consolidated
under the 2000 and 2001 [P]ermits (with the 2001 approval being, at
most, an unnecessary duplication of the earlier consolidation) and that
the approval did not lapse.
8. The Code language relating to lapse of permits in effect when the
2000 and 2001 [P]ermits were issued provided:
9
Zoning and/or Use Registration Permits . . . with respect to
construction and use of a property, or where interior alterations
are involved, shall expire one year after the date of issuance
unless construction is begun prior thereto and is carried on t[o]
completion without voluntary interruption.
[Former Section 14-703(4) of the Code, f]ormer Phila. Code § 14-
1703(4).
9. The Board concludes that this Code provision did not result in lapse
of the [P]ermits insofar as [it] approved a lot consolidation because the
approval did not involve “construction and use of a property.”
10. The Board further concludes that the Property would properly be
considered a single zoning lot even absent the prior [P]ermits
consolidating the three parcels. [Department’s Director of
Development Services’] testimony and the Code Bulletin cited by [the]
expert witness . . . confirm[s] that the determination of what constitutes
a “zoning lot” is made with reference to the property’s zoning history;
deed descriptions and tax parcel identifications are not determinative.
In her testimony, [Department’s Director of Development Services]
distinguished between consolidation of parcels previously recognized
as separate zoning lots and parcels that had been used as a single lot but
for which no zoning record existed. With regard to the latter, she said
that three separately deeded parcels would be recognized as a single
zoning lot if “there were no zoning records that indicated something
different.” . . . .
11. Here, there is no inconsistent zoning history showing the subject
parcels to have previously been recognized as individual zoning lots by
[Department]. The parcels are held in common ownership, were
transferred under a single deed, and have on three separate occasions
involving two different owners been approved for development as a
single, unified property. Under [Department’s] interpretation, they
therefore constitute a single zoning lot.
12. With regard to [Department’s] inclusion of the air rights parcel for
purposes of determining lot size and permitted square footage, the
Board finds [Department’s] interpretation of the relevant Code
requirements reasonable and consistent with the statutory language.
....
10
14. The Code defines “lot” as “a parcel of land consisting of a
horizontal plane bounded by vertical planes that comprise its front, side,
and rear lot lines, and that is intended or designed to be used, developed,
or built upon as a unit.” The Board concludes that the three
consolidated parcels meet this definition and that the air rights parcel
was therefore properly included in the lot size calculation.
15. With regard to what constitutes ground level for purposes of
measuring height and determining whether proposed parking is
“underground,” the Board concludes that [Department] properly
measured ground level from street level, rather than from the base of
the railroad cut. Both the applicable Code language and, as
[Developer’s] witness [the Architect] noted, “common sense[]” support
this interpretation.
16. The Department, having measured ground level at street level,
correctly determined that the proposed height was permitted and that
the proposed parking levels did not count toward gross floor area for
purposes of determining [floor area ratio].
....
18. The Board finally concludes that [Objector] did not establish
standing to challenge the subject [P]ermit.
....
21. At the September 25, 2018, zoning hearing, [the Dalian’s Director
of Development Services] complained that the permit was issued
without community involvement and said the [P]roposed
[Development] “will cast a shadow, and it will interfere with views
from our property.”
22. Because the challenged permit was issued by right, community
involvement and input were not required. As for the claimed
detrimental impact on light and views, [Objector] did not present expert
testimony or other evidence supporting these claims. The Board
concludes that [the Dalian’s Director of Development Services’] vague,
unsubstantiated claims regarding injury to [Objector’s] property did not
meet the standards for establishing standing stated by the [Supreme
Court in] Spahn [v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa.
2009).]
11
(Decision, Conclusions of Law (COL) ¶¶ 6-12, 14-16, 18, 21-22.) Thereafter, on
November 9, 2018, Objector appealed the Board’s Decision to common pleas.
D. Appeal to Common Pleas
On August 14, 2019, common pleas held oral argument on Objector’s appeal.
That same day, common pleas entered an Order denying Objector’s appeal and
affirming the Board’s Decision. Thereafter, Objector initiated the instant appeal.12
After requesting Objector file a Concise Statement of Errors Complained of on
Appeal, common pleas issued an Opinion pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a), Pa.R.A.P. 1925(a) (1925(a) Opinion), on February 14,
2020. Therein, common pleas agreed with the Board that Objector’s “asserted
interests are not sufficient to provide it with standing.” (1925(a) Opinion (Op.) at 3-
4.) Because the Dalian does not adjoin or abut the Property, common pleas
concluded that Objector must show a particular harm to have standing to challenge
the issuance of the Permit. Noting that before it Objector argued the Proposed
Development would block the view of some of the residents of the Dalian, would
cast a shadow over the Dalian, and would reduce public parking, common pleas
concluded that Objector “has no affirmative rights to the preservation of its view
from its building” and that Objector waived any arguments related to parking
because Objector did not raise those issues to the Board. (Id. at 5-6.)
12
In this case, “[w]here [common pleas] took no additional evidence, we are limited to
determining whether the . . . [B]oard abused its discretion or committed an error of law.” Hafner
v. Zoning Hearing Bd. of Allen Twp., 974 A.2d 1204, 1209 n.1 (Pa. Cmwlth. 2009). A zoning
board abuses its discretion if its “findings are not supported by substantial evidence, that is, such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
Zoning Hearing Bd. of Sadsbury Twp. v. Bd. of Supervisors of Sadsbury Twp., 804 A.2d 1274,
1278 (Pa. Cmwlth. 2002).
12
As to whether ground level was equivalent to street level, common pleas
concluded that “[t]he Code is anything but clear when it comes to the definition of
[] ‘ground . . . .’” (1925(a) Op. at 9.) Upon its examination of the Code and its
definitions of “ground floor” and “average ground level,” common pleas concluded
that the terms “ground” and “ground floor” are “fungible and highly dependent upon
the particular circumstances and conditions present at the” property at issue and that
since the term “ground” “lack[s] [a] clear definition,” it “should be broadly
construed” to give Developer the least restrictive use of the Property. (Id.)
Having determined that the term “ground” was ambiguous, common pleas
determined the Board did not err when it accepted that term to mean “street level”
in this particular case. (Id. at 10-11.) Based on this determination, common pleas
also concluded that the Proposed Development’s height was properly measured from
street level and did not exceed the maximum height allowed under the Code.
Further, common pleas concluded the allowable gross floor area was properly
calculated by measuring the lot area at street level and, therefore, the Proposed
Development did not exceed the allowable gross floor area ratio provided for in the
Code. Lastly, common pleas concluded the Board did not err in concluding the three
parcels that make up the Property were consolidated under the 2000 and 2001
Permits because, under the previous version of the Code, a recorded deed of
consolidation was not required.
II. DISCUSSION
Preliminarily, before turning to the parties’ arguments, we recount our role in
zoning appeals. In reviewing this appeal
this Court may not substitute its interpretation of the evidence for that
of the Board, the fact-finder in this case. The Board is the sole judge
13
of the credibility of witnesses and the weight to be afforded their
testimony. Thus, it is the Board’s function to weigh the evidence before
it. If the record contains substantial evidence, this Court is bound by
the Board’s findings that result from the resolution of credibility and
conflicting testimony.
Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford, 34 A.3d 286, 295 n.9
(Pa. Cmwlth. 2011) (citations omitted).
Because the parties’ arguments are based on competing interpretations of
numerous Code sections, we must engage in statutory construction, which is guided
by the following precepts. “[T]he principles of statutory construction apply to the
interpretation of zoning ordinances.” Delchester Developers, L.P. v. Zoning
Hearing Bd. of Twp. of London Grove, 161 A.3d 1081, 1103 (Pa. Cmwlth. 2017).
The object of interpretation of statutes and ordinances is to ascertain the intent of the
drafter. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. §
1921(a). In reviewing the Code, “we are mindful that a statute’s plain language
generally provides the best indication of legislative intent and, thus, statutory
construction begins with examination of the text itself.” Kohl v. New Sewickley Twp.
Zoning Hearing Bd., 108 A.3d 961, 968 (Pa. Cmwlth. 2015). We must construe the
words and phrases of the Code “according to the rules of grammar and according to
their common and approved usage.” Section 1903 of the Statutory Construction Act
of 1972, 1 Pa.C.S. § 1903. When reading the plain text of the Code, the rules of
construction require that we not read those provisions in isolation, but rather must
read those sections in conjunction with all the other sections of the Code.
MERSCORP, Inc. v. Delaware County, 207 A.3d 855, 865 (Pa. 2019). However,
when the language is ambiguous, we must engage in statutory interpretation to
ascertain the drafters’ intent. Mohamed v. Dep’t of Transp., Bureau of Motor
Vehicles, 40 A.3d 1186, 1194 (Pa. 2012). “A zoning ordinance is ambiguous if the
14
pertinent provision is susceptible to more than one reasonable interpretation . . . or
when the language is vague, uncertain, or indefinite.” Kohl, 108 A.3d at 968
(citations omitted). In such circumstances, the words of a zoning ordinance must be
construed “as broadly as possible to give the landowner the benefit of the least
restrictive use.” Riverfront Dev. Grp., LLC v. City of Harrisburg Zoning Hearing
Bd., 109 A.3d 358, 366 (Pa. Cmwlth. 2015). “[T]he rules of statutory construction
do not allow for the interpretation of . . . an ordinance which produces an absurd
result.” Stoltzfus v. Zoning Hearing Bd. of Eden Twp., Lancaster Cnty., 937 A.2d
548, 550 (Pa. Cmwlth. 2007). Further, it is well-settled “that a zoning hearing
board’s interpretation of its own zoning ordinance is entitled to great weight and
deference” because it “possesses knowledge and expertise in interpreting that
ordinance.” Risker v. Smith Twp. Zoning Hearing Bd., 886 A.2d 727, 731 (Pa.
Cmwlth. 2005). Likewise, a zoning officer’s interpretation of the ordinance is also
entitled to deference unless the zoning officer’s interpretation is “shown to be clearly
erroneous.” Kohl, 108 A.3d at 968-69.
With the above principles in mind, we turn to the parties’ arguments. Objector
argues that the Board erred in concluding that it lacked standing to challenge the
Permit. Further, Objector argues the Proposed Development violates the Code in
several respects. Objector asserts that the three parcels making up the Property have
not been consolidated and, therefore, the Proposed Development violates the Code
by straddling property lines. Objector submits that the Board erred by concluding
the term “ground level” has the same meaning as “street level.” As such, Objector
contends that the gross floor area and height of the Proposed Development violate
the Code. Developer responds that the Board properly concluded that Objector
lacked standing to appeal the issuance of the Permit and there was no error in the
15
Board’s interpretations of the Code to conclude that the Proposed Development did
not violate the Code.
A. Whether the Board erred in holding that Objector lacked standing to
challenge Department’s issuance of the Permit.
Objector argues the Board erred by concluding that it lacked standing to
challenge the issuance of the Permit because, contrary to the Board’s conclusion,
Objector will be aggrieved by the Proposed Development. More specifically,
Objector, relying on Plaxton v. Zoning Board of Adjustment, 213 A.3d 374 (Pa.
Cmwlth. 2019), submits that there is a “presumption that a decision related to the
Property will have an impact on” the Dalian because of its proximity to the Property.
(Objector’s Br. at 16.) Further, Objector argues it will be aggrieved by the fact that
the Proposed Development “will cast substantial shadows on . . . parts of the Dalian,”
change the character of the neighborhood, cause congestion, and exacerbate parking
shortages. (Id. at 16-17.) Citing Robinson Township v. Commonwealth, 83 A.3d
901 (Pa. 2013), Objector submits it “and its tenants have a constitutional right to its
lawful view of the City’s natural historic resources.” (Objector’s Br. at 18.) Lastly,
Objector argues the Proposed Development will violate the Code in several respects
and that it “had an investment backed expectation that the Property would be
developed in compliance with local zoning regulations.” (Id. at 17.)
Developer responds that Objector is not aggrieved by the issuance of the
Permit and, therefore, lacks standing to challenge its issuance. According to
Developer, Objector did not show “that its interest in the Permit was anything more
than the interest of all citizens in ‘procuring obedience to the law,’” which is
insufficient to establish standing. (Developer’s Br. at 12-13.) While Objector
asserts specific harms in its brief, Developer, citing the testimony of Objector’s
Director of Development, submits that Objector “later conceded that its only true
16
concern [] in this matter was limited to whether the Permit complied with the []
Code.” (Id. at 13.) With respect to Objector’s arguments regarding the Proposed
Development blocking the Dalian residents’ view and casting a shadow, Developer
submits Objector “has no right to preservation of the view from its building nor any
right not to have a shadow cast on its building, and it cannot be an aggrieved party
on these bases.” (Id. at 13-14.) Developer disagrees that Plaxton supports
Objector’s position because, unlike the objectors therein, Objector did not prove that
the Proposed Development will result in concrete harm to Objector. (Id. at 15-16.)
Since Objector has not demonstrated that it will suffer some concrete harm,
Developer maintains the Dalian’s “proximity to the [Proposed Development] is
irrelevant for purposes of standing.” (Id. at 16.)
Section 14-303(15)(a.1) of the Code provides that determinations from the
Department “may be appealed to the [] Board by any person or organization affected
by the decision . . . .” Phila. Code § 14-303(15)(a.1). Likewise, pursuant to Section
14-303(15)(b.1), “[a] final decision made by the [] Board . . . may be appealed to a
Pennsylvania Court of Common Pleas by any aggrieved party.” Phila. Code § 14-
303(15)(b.1). For standing purposes,
a party is aggrieved if the party can show an interest that is substantial,
direct, and immediate. In order to be substantial, there must be some
discernible effect on some interest other than the abstract interest all
citizens have in the outcome of the proceedings. In order to be direct,
the party must show some causation of harm to his interest. In order to
be immediate, there must be a causal connection between the action
complained of and the injury to the person challenging it.
Spahn, 977 A.2d at 1151 (citations omitted).
We have consistently “held that a property owner need not establish pecuniary
or financial loss if [the property owner’s] property is located in close proximity to
17
the subject property because the zoning decision is presumed to have an effect on
the property owner’s property.” Laughman v. Zoning Hearing Bd. of Newberry
Twp., 964 A.2d 19, 22 (Pa. Cmwlth. 2009). A property is proximate to the subject
property seeking zoning approval if it is “adjacent to or abuts the [subject] property.”
Plaxton, 213 A.3d at 379 (quoting Bradley v. Zoning Hearing Bd. of Borough of
New Milford, 63 A.3d 488, 491 (Pa. Cmwlth. 2013)). The Code defines adjacent as
“[t]o touch or share a contiguous boundary or border, or to be separated only by an
alley, shared driveway, or street.” Phila. Code § 14-203(4). This definition is
consistent with the common definitions of that term as being defined as “not distant:
NEARBY” Merriam-Webster Dictionary, https://www.merriam-webster.com
/dictionary/adjacent (last visited Nov. 17, 2020), or “lying near, close, or
contiguous,” https://www.dictionary.com/browse/adjacent (last visited Nov. 17,
2020). In Plaxton, we held that a property located across the street from the subject
property seeking zoning approval is proximate to that subject property. Id. at 380.
We have also “held that the owner of property that is within 400 to 600 feet of the
challenged [property] is within close proximity and has standing” but that “owners
of property one-half mile and one mile or more away from the challenged [property]”
are not “in close proximity in order to confer standing.” Laughman, 964 A.2d at 22-
23.
Here, the Board found the Dalian is “located directly across Hamilton Street
from the Property.” (FOF ¶ 2.) Therefore, it is adjacent under the Code and the
common understanding of that term, https://www.dictionary.com/browse/adjacent,
and is proximate to the Proposed Development, Plaxton, 213 A.3d at 390. As such,
Objector had standing to challenge the Permit because the permit “is presumed to
have an effect” on adjacent property. Laughman, 964 A.2d at 22 (emphasis added).
18
The fact that the objector in Plaxton also showed that concrete harm would result
from the proposed development in that case does not alter the longstanding
presumption that there will be an effect on properties proximate to a proposed
development. Thus, regardless of whether Objector demonstrated a specific harm
or whether Objector and the Dalian’s residents have a legally cognizable right to
unobstructed views, Objector had standing to challenge the issuance of the Permit.
Accordingly, the Board erred in concluding otherwise.
B. Whether the Board erred when it determined that the Property consisted
of a single consolidated lot.
Objector reiterates its position that the Property is made up of three
unconsolidated parcels, which it asserts is supported by OPA’s treatment of those
parcels, the fact that the Deed in Lieu of Foreclosure describes the three parcels
separately, and the fact that two of the parcels have different addresses and one does
not have an address at all. As the parcels have not been consolidated, Objector
asserts the Proposed Development will straddle lot lines in contravention of the
Code. Objector disagrees with the Board’s conclusions that the 2000 or 2001
Permits consolidated the three parcels and that those permits did not lapse when
PLDLP did not commence or complete construction under either of those permits.
Relying on the Former Commissioner’s testimony, Objector argues that for the lot
consolidation provisions in the 2000 or 2001 Permits to vest, PLDLP would have
had to obtain a temporary tax parcel from OPA and record a deed of consolidation,
which PLDLP did not do. (Objector’s Br. at 36.) Objector submits that the
testimony of Department’s Director of Development Services before the Board in
this case and her testimony in another case, DiCicco v. Philadelphia Zoning Board
of Adjustment (Pa. Cmwlth., No. 2625 C.D. 2015, filed May 10, 2017), corroborates
19
the Former Commissioner’s testimony that such a procedure was required to
consolidate parcels in 2000/2001.13
Developer responds that the three parcels making up the Property were
consolidated by the 2000 and/or 2001 Permits. Citing former Section 14-1703 of
the Code, Developer argues “zoning permits for lot consolidation do not expire” as
such permits do not pertain to the construction or use of property. (Developer’s Br.
at 22.) Since zoning permits for lot consolidation do not expire, Developer submits
the lot consolidation provisions of the 2000 and 2001 Permits vested automatically.
With respect to Objector’s argument that a deed of consolidation is required to
perfect a permit for lot consolidation, Developer responds that Objector does not
rely on any provision of the former zoning code “that stands for that proposition,”
but relies only on the Former Commissioner’s testimony, which is not controlling.
(Id. at 23.)
In rejecting Objector’s argument that the Proposed Development violates the
Code by straddling multiple lot lines, the Board specifically found that in 2000 and
2001, the Department issued permits to PLDLP to, among other things, consolidate
the three parcels. (FOF ¶ 12; R.R. at 520a, 524a.) The Board acknowledged that
“[w]hile a consolidation requested today would require the filing of a deed of
consolidation in order to be perfected,” it found “there was no such requirement
when the 2001 and 2000 [P]ermits were issued” to PLDLP. (COL ¶ 7.) As support,
the Board relied on the relevant Code language, which, at the time, provided that
“Zoning and/or Use Registration Permits . . . with respect to construction and use of
property, or where interior alterations are involved, shall expire one year after the
13
Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b), and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a),
unreported panel decisions of this Court may be cited for their persuasive value.
20
date of issuance unless construction is begun prior thereto and is carried on t[o]
completion without voluntary interruption.” (Id. ¶ 8 (quoting former Phila. Code
§ 14-1703(4)).) The Board determined that “this Code provision did not result in
lapse of the permits” issued to PLDLP “insofar as they approved a lot consolidation
because that approval did not involve ‘construction and use of a property.’” (COL
¶ 9.)
Reviewing that provision’s language, the Board’s interpretation is reasonable
and not contrary to that language and, therefore, is entitled to deference. Risker, 886
A.2d at 731. That section clearly stated that a permit “with respect to construction
and use of property . . . shall expire one year after the date of issuance.” Former
Phila. Code § 14-1703(4) (emphasis added). That section, however, was silent with
respect to permits authorizing lot consolidation or the relocation of lot lines. We
will not read into former Section 14-1703(4) a limitation that was not there and that
City Council did not see fit to include. See Pilchesky v. Lackawanna County, 88
A.3d 954, 965 (Pa. 2014). In the absence of Code language suggesting otherwise,
we cannot conclude the Board erred by determining that the lapse provision of
former Section 14-1703(4) applied only to construction and use permits.
Objector relies on the testimony of the Former Commissioner, the OPA’s
treatment of the three parcels, and the property descriptions contained in the Deed
in Lieu of Foreclosure; however, none require a different result. On this point,
DiCicco is instructive. In DiCicco, the landowners filed two applications for
zoning/use permits with Department to construct single-family homes on two
adjacent, but unconsolidated, parcels that had been described separately in a deed
and granted separate tax accounts by OPA. Department issued the requested
permits, but subsequently revoked the two permits because its records indicated that
21
the two parcels had, in fact, been consolidated in 1952 when a previous owner of the
parcels received permission to consolidate the two parcels in order to construct a
home thereon. The Board affirmed, and upon review, we concluded that despite the
deed and OPA’s treatment of the parcels as separate, there was substantial evidence
to support the Board’s finding that the two parcels had been consolidated. DiCicco,
slip op. at 34. As DiCicco demonstrates, a deed describing parcels separately and
the issuance of separate tax numbers to those parcels by OPA is not dispositive if
the zoning record reflects that the parcels have been consolidated, as it does here.
Accordingly, we discern no error in the Board’s holding that the zoning
history reflects the three parcels making up the Property had been consolidated by
the 2000 and/or 2001 Permits despite OPA’s treatment of the parcels for tax
purposes or the descriptions of the parcels in the Deed in Lieu of Foreclosure.
C. Whether the Board erred by accepting the terms “ground” and “ground
level” to mean “street level.”
At issue in this challenge to the Board’s Decision is the interpretation of the
words “ground” or “ground level,” as used in the following Code sections, to mean
“street level.” Each term is relevant to Objector’s arguments that the Proposed
Development violates the Code by exceeding the permitted structure height and
gross floor area. “Lot area” is defined as “[t]he total area of the horizontal plane of
a lot at ground level,” Phila. Code § 14-202(7) (emphasis added). The lot area is
then used to calculate a property’s gross floor area. The gross floor area is calculated
by multiplying the lot area by the applicable gross floor ratio, which in the RM-4
district is 350% (3.5). Section 14-701(2) (Table 14-701-1) of the Code, Phila. Code
§ 14-701(2) (Table 14-701-1). Section 14-202(4)(b.6) specifically excludes
“[u]nderground accessory parking” from the measurement of a proposed
development’s gross floor area. Phila. Code § 14-202(4)(b.6) (emphasis added).
22
Finally, under Section 14-202(6) of the Code, a structure’s height is measured using
“the vertical distance from the average ground level at the base of the structure to
the top of the structure.” Phila. Code § 14-202(6) (emphasis added).
Objector argues that the Board erred by interpreting the terms “ground” and
“ground level” as having the same meaning as “street level” for the purpose of
calculating the Proposed Development’s gross floor area, determining whether
parking areas are included in the allowable gross floor area, and measuring height
of a structure. Objector contends “ground level” is unambiguous and, under the rules
of statutory construction, the undefined term “ground level” should be given its plain
meaning as the level of the dirt or earth, which, in this case, refers to the bottom of
the railroad cut. Using the plain meaning of “ground” or “ground level” would mean
that the 125-foot height had to be measured from the base of the railroad cut and,
because Developer owns only the air rights, Developer could not use the third
parcel’s lot area in calculating the allowable gross floor area. Noting that Developer
relied on the defined term “average ground level” to determine its lot area, Objector
asserts that this definition is not applicable to the definition of “lot area” because
“[h]ad City Council intended ‘ground level’ as applied to [l]ot [a]rea to be computed
on average ground level, it would have done so.” (Objector’s Br. at 23 (emphasis
omitted).) Further, in acknowledging that the Code “defines a number of other terms
that facially include” the words “ground” or “ground level,” Objector argues this
“goes to demonstrate that City Council knew how to define terms and that, if it had
wanted [g]round or [g]round [l]evel to mean anything other than their ordinary
meanings, it would have provided a technical definition.” (Id. at 29.) Additionally,
Objector argues the “Code’s definition of ‘street’ further erodes any credible
argument that [g]round [l]evel is the same as [s]treet [l]evel” because in all the
23
definitions of “street” in the Code “nowhere is ‘street’ [defined in] relat[ion] to
[g]round or [g]round [l]evel.” (Id. at 23.) To the extent that the term “ground level”
may be ambiguous, Objector contends the Zoning Examiner’s and the Board’s
interpretation are not entitled to deference because it is not a reasonable
interpretation or demonstrated to be the Department’s consistent position to interpret
“ground level” as “street level.” (Objector’s Br. at 33.)
Developer responds that it properly calculated the lot area of the Property
using street level as the Property’s ground or ground level, rather than the bottom of
the railroad cut. Developer contends that Objector’s interpretations ignore the rules
of statutory construction because “a word in a statu[t]e may have different meaning
depending on the context in which it appears” and “must be construed with reference
to the statute or ordinance in which [it is] used.” (Developer’s Br. at 28.) Developer
acknowledges that the terms “ground” and “ground level” are not defined but
maintains that those words are used in other defined terms, which, when read in
context, support the Board’s interpretation, and cites various Code definitions that it
claims supports that interpretation. Developer also contends that Objector’s
interpretation violates other principles of statutory construction because that
interpretation “would preclude building on air rights parcels at all” and would
require “large portions of the livable space in a building to be built [] inside a railroad
pit[,] which is clearly the kind of absurd result that courts stress must be avoided.”
(Id. at 31.) Further, Developer submits that Objector’s
interpretation necessarily means that any lot previously subject to
alteration must be measured based on the alterations for any subsequent
developers. Thus, if a developer completes an excavation and then
abandons the project, a subsequent developer would be limited in the
scope of its project based on that excavation, even where the previous
developer’s project fell within the applicable Code provisions. That
cannot be the intent of the Code.
24
(Id.) Lastly, Developer submits that any ambiguity must be construed in favor of
Developer, as the landowner, and the least restrictive use and enjoyment of the
Property, which Objector’s interpretation does not.
To resolve this issue, we must examine the Code’s language to determine
whether the Board’s interpretation of the terms “ground” and “ground level” was
contrary to the Code. The Department interpreted the term “ground level,” for
purposes of calculating the lot area and measuring the height of the Proposed
Development, to be the same as the Property’s street level. (FOF ¶ 32.) The Board
agreed that this interpretation was consistent with the Code, thereby effectively
adopting that interpretation as its own. (COL ¶¶ 12, 15.) As noted by both Objector
and Developer, the words “ground” or “ground level” are used in other terms defined
by the Code. Reviewing the Code sections at issue and the Code sections the parties
cite as supporting their preferred interpretations,14 we conclude the Board’s
interpretation is reasonable and consistent with the Code and, therefore, the Board’s
interpretation is entitled to deference. Risker, 886 A.2d at 731. We find particularly
instructive the Code’s definition of “ground floor,” which is defined as “the story
of the building at the average ground level at the front of the building” or where,
“[i]n the case of buildings front on two streets,” such as the Proposed Development,
“the ground floor is the story at the average of the ground level of the two street
14
In addition to citing to the definitions of “street” in Section 14-203(310) and “areas at
ground level” found in Section 14-202(14)(a), Objector cites provisions of other codes, including
the International Building Code, International Fire Code, International Plumbing Code,
International Mechanical Code, and the International Electrical Code, in support of its preferred
interpretation. However, we will only consider how “ground” and “ground level” are used
elsewhere in this Code. Developer cites the definitions of “ground floor,” “ground floor frontage,”
“basement,” and “grade plane” found respectively in Sections 14-202(5)(a), (b), 14-202(5.1), 14-
203(34), and 14-203(138.1) of the Code. Phila. Code §§ 14-202(5)(a), (b), 14-202(5.1), 14-
203(34), 14-203(138.1).
25
frontages.” Phila. Code § 14-202(5)(a), (b) (emphasis added). Also persuasive is
the definition of “ground floor frontage,” which is “[t]he horizontal measurement of
any portion of the ground floor of a building fronting on a confirmed street.”
Phila. Code § 14-202(5.1) (emphasis added). From these definitions, it appears the
drafters of the Code did not preclude the ground floor from being defined in relation
to the ground level of the street. It is unlikely that the drafters of the Code intended
a structure’s ground level to be at a different grade than its ground floor.
While Objector suggests we should interpret the term “ground level”
according to what it characterizes as its plain and ordinary meaning, or by reference
to other non-Code documents, we are not persuaded. It is true that pursuant to the
rules of statutory construction, words and phrases are to be construed “according to
their common and approved usage.” 1 Pa.C.S. § 1903. However, we cannot read
certain sections of the Code in isolation, but must read them together and in
conjunction with the other sections of the Code. MERSCORP, Inc., 207 A.3d at 865.
Therefore, we will not simply look to the plain meaning of the term “ground” as
being the dirt or earth at the bottom of a hole in the ground, rather than at the level
of the ground around that hole, when other terms in the Code include the words
“ground” and “ground level” and are defined in relation to the location of streets.
When we consider the context, the Board’s interpretation is reasonable and
consistent with the Code’s provisions and, therefore, is entitled to deference.
Further, Objector’s interpretation is inconsistent with the principle that “[t]he
Board [] has an obligation to construe the words of an ordinance as broadly as
possible to give the landowner the benefit of the least restrictive use.” Riverfront
Dev. Grp., LLC, 109 A.3d at 366. Under Objector’s interpretation, although an
owner of an air rights parcel would be permitted to build on the air rights parcel, it
26
would be precluded from using that parcel to calculate the lot area for determining
gross floor area because an air rights parcel will always begin above the dirt/earth.
In certain circumstances, this interpretation would prevent construction entirely. For
example, if Developer’s interest in the Property consisted entirely of air rights over
the railroad cut with an easement to construct pillars on the railroad bed, under
Objector’s interpretation, Developer would not be able to develop the Property
because its lot area would be zero. “[T]he rules of statutory construction do not
allow for the interpretation of . . . an ordinance which produces an absurd result.”
Stoltzfus, 937 A.2d at 550. City Council surely did not intend for all air rights parcels
to be undevelopable.
Accordingly, in the absence of a specific definition in the Code or some clear
indication that the term “ground level” could not be defined in relation to the street
or street level, we cannot conclude the Board erred in interpreting the term “ground
level,” as used in the Code’s definition of “lot area” and the method for measuring
the height of structures, to mean street level.
We now address Objector’s arguments regarding the Proposed Development
specifically. Objector argues that the lot area of the Property should be measured at
the bottom of the railroad cut, rather than at street level, and that by measuring the
lot area at street level, Developer overestimated the allowable gross floor area.
Further, Objector argues that the parking garage should have counted against the
allowable gross floor area because it is not underground. Additionally, Objector
argues that the Proposed Development, when measured from the bottom of the
railroad cut, exceeds the height limit set forth in the Code.
Having determined that the Board did not err in its interpretation of the term
“ground level,” we agree with the Board that the allowable gross floor area was not
27
miscalculated, that the parking garage was properly classified as an underground
parking garage and excluded from the gross floor area calculation, and that the
Proposed Development, when measured from street level, does not exceed the height
limit set forth in the Code.
III. CONCLUSION
For the foregoing reasons, the Board erred in determining Objector did not
have standing to challenge the issuance of the Permit, but did not err in denying
Objector’s appeal from the issuance of the Permit for the reasons discussed above.
Accordingly, we affirm common pleas’ Order that upheld the Board’s Decision.
_____________________________________
RENÉE COHN JUBELIRER, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Battersea Ventures, L.P, :
Appellant :
:
v. : No. 1440 C.D. 2019
:
Philadelphia Zoning Board of :
Adjustment and The City of :
Philadelphia, UCFP LLC :
ORDER
NOW, November 18, 2020, the Order of the Court of Common Pleas of
Philadelphia County issued in the above-captioned matter is hereby AFFIRMED.
The Application in the Nature of a Motion to Dismiss for Mootness filed by UCFP
LLC is hereby marked as WITHDRAWN pursuant to stipulation by the parties.
_____________________________________
RENÉE COHN JUBELIRER, Judge