Spahn v. Zoning Board of Adjustment

CONCURRING OPINION BY

Judge SIMPSON.

I concur in the result reached by the majority. I write separately, however, because I question the constitutionality of Act 193 of 2004, which amended the law known as the First Class City Home Rule Act (Home Rule Act)1 by adding Section 17.1, and which seems to eliminate taxpay*32er standing in zoning matters in Philadelphia, contrary to the express provisions of The Philadelphia Code.2

In particular, I question whether the title of Act 193 violates the “clear expression of title” requirement of Article III, Section 3 of the Pennsylvania Constitution.3 In this regard, I entirely agree with the official opinion of the City Solicitor for the City of Philadelphia, and with the argument of Appellees Zoning Board of Adjustment and the City of Philadelphia. However, I cannot find that these arguments were raised before the trial court, and I conclude they are not preserved here.

Also, I question whether Act 193 violates the right of local self-government protected by the Pennsylvania Constitution, Article IX, Section 2,4 and by the Home Rule Act. See Sch. Dist. of Phila. v. Zoning Bd. of Adjustment, City of Phila., 417 Pa. 277, 207 A.2d 864 (1965) (zoning is peculiarly a local matter, and prohibition imposed on municipality by Home Rule Act against exercise of powers contrary to, or in limitation of, other acts of General Assembly applies only to substantive matters of statewide concern); Bartle v. Zoning Bd. of Adjustment, 391 Pa. 207, 137 A.2d 239 (1958) (same). While this issue was mentioned in a pleading before the trial court, it was not briefed, and therefore it was not preserved for our current review.

It is also worth noting that the manner of amending and ultimately passing Act 193 was highly questionable, and would not comply with new procedural rules in the state House of Representatives. Notwithstanding these concerns, I reluctantly concur in the limited result reached by the majority.

. Act of April 21, 1949, P.L. 655, as amended, 53 P.S. §§ 13101-13157.

. Section 14-1807(1) of The Philadelphia Code provides for standing to appeal decisions of the Zoning Board of Adjustment.

. Article III, Section 3 of the Pennsylvania Constitution, titled “Form of Bills,” provides:

No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

Pa. Const, art III, § 3. This provision sets forth dual mandates for the Legislature; it prohibits the passing of a bill that contains more than one subject and requires that the subject be clearly expressed in its title. Stilp v. Commonwealth, 588 Pa. 539, 905 A.2d 918 (2006). In broad terms, Article III endeavors to place restraints on the legislative process and to encourage an open and accountable government. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383 (2005) (hereinafter "PAGE"). Section 3 curbs the practice of incorporating a variety of distinct and independent subjects into one bill. Id. "[Rjeasonable notice is the keystone of Article III, Section 3.” Id. at 296, 877 A.2d at 395.

Although Article III, Section 3 mandates that a bill’s subject be set forth in its title, it does not require a title to be an index or a synopsis of the bill’s contents. PAGE. A party seeking to declare a title unconstitutional under Article III, Section 3’s "clear expression of title” requirement must show "either (1) that the legislators and the public were actually deceived as to the act’s content at the time of passage, or (2) that the title on its face is such that no reasonable person would have been on notice as to the act’s contents.” Id. at 313, 877 A.2d at 406 (citation omitted).

.The so-called "Home Rule Amendment” to the Pennsylvania Constitution provides in part that:

Municipalities shall have the right and power to frame and adopt home rule charters .... A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time.

PA. Const, of 1968, art. IX, § 2.