Bailey v. Zoning Board of Adjustment

matter for proceedings further on new theories first raised on appeal, would prejudice the claimants:

It imagine is difficult to what prejudicial could be more if, nearly years claimants than after two litigation appeals, [the find claimants] themselves before the lower again tribunal and litigate forced to long issues since waived, other, yet if uncertain novel theories will be upon thrust years. them another two Thus, Id. we are constrained to reverse the Commonwealth UCBR; Court because 3 was not raised before the as a theory denying benefits, Claimant it is waived.

Accordingly, the order of the Commonwealth Court is re- versed. This matter remanded to computa- the UCBR for tion of only. benefits

Chief Justice ZAPPALA concurs the result.

801A.2d492 BAILEY, Sandy Wynn, Joseph Elizabeth Walker, and Richard Metz v.

ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA, Philadelphia and James

B. Development, Inc. Kravitz/Shawmont Appeal Development of James B. Inc. Kravitz/Shawmont

Supreme Pennsylvania. Court of

Argued Oct. 2001. 31,May

Resubmitted 2002. July

Decided Weiner, Eglin, Primavera, Stephen A. C. S. Glenn Carl Development, B. Philadelphia, for James Kravitz/Shawmont Inc. Gaston, Adjust- Board of Philadelphia, Zoning

Cheryl L. Philadelphia. City of ment of the Bailey, Philadelphia, for Elizabeth Valenti-Epstein,

Debra al. et CAPPY, CASTILLE, NIGRO, ZAPPALA, C.J., and

Before: EAKIN, NEWMAN, and JJ. SAYLOR THE COURT OPINION OF NIGRO. Justice Inc., president, Development, and its

Appellants Shawmont Kravitz, from the Commonwealth Court’s appeal B. James Philadelphia Planning erro- finding that the order to an neously permitted Appellants make Plan”) (a planned for a residential development plan “Master order of the Commonwealth We affirm the development. Court, reasons. albeit for different 14-226 City Council added Section Philadelphia Code, Zoning which established RC-6 Philadelphia 14-226 describes District classification. Section

Residential as follows: District RC-6 Residential develop- encourage multiple use This district is intended plan tracts of land accordance with large on ment City Planning approved by filed with development conformity shall be with stated Said Commission. use, type requirements, area off-street standards as loading, signs. parking permit development

It is intent of this district extent preservation, toward ground with the view trees, waterways, natural existing topography, possible, unique property. natural amenities and other development undertaken with the It that each be is intended may ob- zoning building permit or be knowledge that no in accord with approved development tained which is not plan. 14-226(1).

Phila. A Residential District RC-6 upon created Commission’s and Council’s development plan describing development of a the approval of up proposed the entire area that will make District. See 14-226(2)(a). a Zoning development plan § Phila. Code Once approved newly is it the Master Plan for the created becomes may A a developer RC-6 Residential District. then obtain zoning permit Philadelphia registration use from the I”) (“L Department Inspections develop of Licenses & & to District in with a manner that is the Master consistent Plan. i.e., 14-226 not provision,

Section does include a sunset a provision that would Plan if terminate Master the RC-6 not entirely developed specified Residential District is after a years.1 number of A stay Master Plan can in therefore effect However, forever. 14-226 provide Section does that a Master may Plan be amended follows: any adoption,

At time final property after the owner or agent, his may apply City authorized to the Commission in approved development plan; provided, change requested, that at time said is that an plan City Planning amended is submitted to the and the City Planning Council. The Commission shall submit in writing to the Council its recommendations re- garding days the amendments. Within 45 of its receiving Commission, the written recommendation from the Council reply writing shall in informing the Commission as to the action the has in approving, disapprov- Council taken ing, amending deferring change. or If the Council does reply not in writing Commission within the aforemen- 45 day period, approval presumed. tioned Council’s will be And provided, change approved further that no shall be City Planning contrary Commission which is to Generally, expire zoning permits year if after a construction has not 14-1703(4), begun. Zoning § See Phila. Code permits use Chapter, in this or which forth

criteria set Chapter. in this provided 14-226(2)(b).2 Accordingly, where

Phila. District, in a develop land RC-Residential wants to person Plan, person so, changes to the Master doing make Plan and an change the Master request file both a must plan development amended formally re- Planning Commission After Council. and recommends plan the amended

views disapproved, approved or plan be the amended either If amended final decision. makes a City Council Council, approved by virtue or deemed by City inaction, old Mas- essentially supercedes it City Council’s at issue Master Plan for the area Plan and becomes ter District. the RC-6 Residential and the 14-226 adoption Section

Subsequent Districts, RC-6 Residential creation several internally policy of an administrative adopted Commission submitting Plan without changes to a Master minor approving or by Planning Commission review the changes to formal the (“Minor Policy”).3 the Minor Modification Under City Council receiving developer’s request upon Policy, Modification Planning plan, the Plan and amended changes to a Master if changes the determine initially reviews staff Commission N.T., Plan. of modifications the Master they are minor following on the 12/17/97, This decision is based at 20-22. criteria:

a) Floor in Gross Area changes proposed result less The (G.F.A.) by more than 1% of the amount or do not increase Plan; by Master permitted the the total G.F.A. Building Coverage

b) in less proposed result changes The by than 1% of the total amount more do not increase the or Plan; by the Master Building Coverage permitted by Philadel- Pursuant to amendments 2. case, instant following Court’s order phia the Commonwealth 14-226(2)(c) 14-226(2)(b) appear in Section now provisions in Section Zoning Code. or saw record that Council endorsed in the 3. There is no evidence adopted. Policy before it was c) changes proposed Impervious The result in Cover- less do not age or increase the amount more than 1% the Plan; Impervious Coverage permitted by total the Master d) changes proposed dwelling The result in [as less Units Plan], allowed under the Master or if the of dwell- number increase, ing proposed they are do so in Units accordance paragraphs; with the above

e) relocated, If or proposed access roads are buildings be the relocation must result in equal or less environmental location, impact impact than the original the reloca- above, comply paragraphs tion must with through c shall any buildings the resultant relocation not move or roads closer to boundary permitted by the district than Plan. Master Modifications, for Staff Approval

Criteria Master R.R. Plan If at 63a.5 the staff that proposed changes finds constitute modifications, minor approves Commission developer’s request to make such modifications to the Master Plan. The L Commission then notifies & I that the modifications to Plan approved the Master have been developer can a zoning permit according obtain to build N.T., 12/17/97, the modifications. at 21-22.6 On other hand, if the staff concludes that proposed changes do not modifications, qualify as minor noti- developer fies the and the amended formally must be procedures accordance 14-226(2)(b). 2/8/99, 128-29, N.T., in Section outlined 131- ap- proved creating a Master Plan a Residential RC-6 District thirty-six Roxborough, acres in community a in northwest Impervious coverage pavement means amount of to be used at the 4. N.T., 12/17/97, development. at 40. Although Policy 5. developed early Minor Modification was in the 1970s, writing it was not reduced until 1986. Id. Planning they 6. Members of the Commission that testified would also notify City any approved Council of minor it modifications to a Master N.T., 12/17/97, Plan. at 21-22. was subse- half of District Philadelphia. The eastern Run” and “Green Tree déveloped into “Green Tree quently In to the 1972 Master Plan. pursuant condominiums Summit” develop Corporation wanted company Balcorp called a Pointe,” District, known as “Hunters half of the the western N.T., 9/23/98, at changes to the 1972 Master Plan. and make Planning Commis- Accordingly, Balcorp 14. submitted and changes to the 1972 Master Plan a for proposal sion both encompassing Hunters Pointe. plan an for the area amended Planning Policy, Commis- its Minor Modification Applying they changes and determined that did sion reviewed Consequently, the minor modifications. qualify as changes and the formally reviewed the amended then plan approved, should be plan, decided approval Council. its recommendation forwarded thus, plan, February approved Plan by Balcorp became the new Master plan submitted provides Plan for the The 1985 Master for Hunters Pointe. condominiums, 202 buildings of ten to be used as development units, gross floor area parking spaces, dwelling feet, 284,080 239,774 coverage square impervious feet. later, Balcorp request changes years

Two submitted Master Plan and an amended the 1985 initially reviewing proposed changes, After Commission. changes staff concluded that the Commission’s Plan and notified modifications to the 1985 Master were minor Plan had been L the modifications to the Master & I that zoning permit subsequently L & I issued a approved.7 in a manner authorizing develop it to Hunters Pointe Balcorp 1985 Master minor modifications to the consistent Plan.8 however, developed never Hunters Pointe

Balcorp, acquired 1988, owner after new unidentified sometime Planning Commission ever notified is unclear whether the The record City'Council minor modifications. it these approved by the modifications to the 1985 Master Plan 8. The minor the record. in 1988 are not described in property. planned develop The new owner to property the from permitted but wanted to deviate what was under Thus, a request changes 1985 Master Plan. for Plan an plan 1985 Master and amended was submitted to the Planning on by Commission behalf the new owner Inc., Group, development of which company Appel- Cheshire Kravitz president. Following lant was its review of re- quested changes, Planning Commission determined changes modifications, did not amount to minor because they proposed buildings line, to property relocate closer to the N.T., which would negatively impact the environment. 12/17/97, Accordingly, at 32. for- Planning Commission proposed mally changes reviewed the plan. amended The plan decided that the amended provided should be City Council with its recom- However, of approval. mendation following public hearing, community at which surrounding members Hunters Nutter, Pointe Councilman Michael Representative community, Hunters Pointe expressed opposition, their Council voted to disapprove the amend- plan. ed request change another Plan the 1985 Master

and an was amended submitted to the Commis- sion but this from Appellant time Development. Shawmont Specifically, Development sought Shawmont to make fol- lowing changes the 1985 Master Plan: reduce the number buildings developed six; change be from ten to the use buildings from to apartments; condominiums add in- ground guardhouse, clubhouse; swimming pool, increase dwelling 204; the number of units from 202 to make 61 more spots; parking impervious coverage reduce the total from 284,080 211,233 feet; feet to gross and increase floor area by approximately Although 0.78%. changes were substan- tially changes sought year similar earlier Cheshire N.T., 9/23/99, 59-60, Group, Commission de- termined that the proposed by Develop- Shawmont qualified ment minor modifications to Master modifications approved the Plan.9 The L & I that the modifications Plan and notified the 1985 Master subsequently ap- Development acceptable.10 were Shawmont Pointe develop Hunters zoning permit L I for a plied to & modifications the Plan with the according to 1985 Master Commission, granted L & I by Planning the which 28,1996.11 on December Development commenced devel-

In August Shawmont observing the construction Upon Hunters Pointe. opment of Development that I had Shawmont learning granted and L & that in a manner develop Hunters Pointe zoning permit a Plan, Appellees, representa- from the 1985 Master deviated Hunters neighboring in areas tives of civic associations zoning of Pointe,12 timely permit the issuance the appealed L argued Adjustment.13 Appellees that Zoning Board of Development's pro- Planning The Commission found that Shawmont 9. buildings any proper- posed changes place the closer would not Plan ty's boundary for the 1985 Master lines than that allowed under therefore, negative impact greater a would not cause N.T., 12/17/97, at 43. on the environment. they Commission testified that notified 10. Members of Develop- copy by forwarding letter it sent to Shawmont Council calling office approving plan ment to Councilman Nutter’s had to inform him that the modifications Councilman Nutter's office 12/17/97, 21-22, However, N.T., no there is approved. been at 27. given to finding by trial court that such notice was Councilman zoning adjustment hearing, Additionally, board Council- Nutter. at notifying copy man testified that he never received letter Nutter N.T., 12/17/96, approved. Development was Shawmont he wheth- testified that could not confirm 64. Councilman Nutter also Id. called his office. er from the Commission had someone Associates, 22, 1996, acquired Pointe L.P. 11. On December Hunters princi- Development are Pointe. Kravitz and Shawmont Hunters pals Hunters Pointe Associates. Derling Civic Bailey president is of the Park Appellee Elizabeth Association, Wynn Appellee Sandy president The Tree Run is Green Association, Appellee Joseph president of the Community Walker is Association, Valley Appellee president Metz Richard Shawmont Roxborough Space Project. Green noticing August development at Hunters Pointe 13. After zoning Appellees Nutter to find out whether a contacted Councilman 12, 1997, granted. September Nut- permit On Councilman had been granted Development a L & I Shawmont ter's learned that had office Appellees subsequently of that zoning permit notified fact. I erroneously & had issued zoning permit because neither Commission nor had formally ap- proved the modifications the 1985 Master In April Plan. 1998, following public hearings, several the Zoning Board appeal, concluding jurisdiction dismissed the that it lacked review the Commission’s decision that had autho- rized L I a zoning permit & to issue Develop- Shawmont ment.14

Appellees appealed from the order of Zoning Board to the trial court. trial The court affirmed the Board’s jurisdiction decision that the Board lacked and determined appropriate it was the appeal forum for an from the Planning Commission’s decision authorizing zoning permit for a District. Accordingly, RC-6 the trial court reviewed the Planning Commission’s Minor Modification Policy and conclud- ed that it interpretation was valid as a reasonable of Section expert agency 14-226 responsible administering Next, ordinance.15 trial the court found that the determination, making Zoning 14. In this the Board noted that because Planning Section 14-226 makes the Commission and solely responsible deciding regarding for matters a Master Plan for a District, performs purely RC-6 issuing L & I ministerial act in Homes, zoning permit upon Lindy based a Master Plan. See Inc. v. Sabatini, 478, (1982) (where 499 Pa. legislative body 453 A.2d 972 provides right building permit, for to by "the issuance thereof the proper performance official is no more than the of a ministerial act officer”). Thus, municipal which admits of no discretion in the the Zoning Board found that because L & I did not exercise its discretion in issuing zoning permit, jurisdiction the it did not have to review whether zoning permit properly was issued. See Phila. 14- (zoning may appeals 1801 alleged board decide any where error is order, department determination). requirement, decision or concluding Planning In that the Minor Commission’s Modification reasonable, Policy adopted reasoning was the trial Stepha- court Súber, nie L. Franklin Philadelphia, former Solicitor for in her 26, September August early 1997 letter to Councilman Nutter. late or September sought opinion Councilman Nutter from Ms. Franklin Planning Súber about whether the Commission's Minor Modi- Policy proper fication was reviewing under Section 14-226. After law, applicable facts and following Ms. Franklin Súber made the conclusion: least, I policy believe the "minor modification” is defensible. At the I Solicitor, persuaded inappropriate am that it by would be for well-settled, reasonable, opinion, previously-un- to overturn a 160 as minor modi- Development qualified by Shawmont

requested by forth criteria set under the five fications issu- thus, upholding the Commission, an order entered zoning permit. ance reversed, finding that Court the Commonwealth appeal,

On authority implement to lacked the Planning Commission language was no Policy because there Modification the Minor authori- Commission giving 14-226 Section making procedure ordinance’s ty to short-circuit minor. Plan, changes were if those Master even changes to a that the Therefore, Court held Commonwealth changes submitted erroneously approved the Minor Modification pursuant Development Shawmont zoning L I to issue a authorized & improperly Policy subsequently granted Development. We permit to Shawmont first, Court the Commonwealth whether allocatur to determine provide 14-226 does concluded Section properly authority independently with the Planning Commission second, Plan, if changes to a Master minor approve with the provides the 14-226 Section changes, whether independently approve authority to give appropriate deference Court failed Commonwealth Policy. Minor Modification Planning Commission’s regulations authority adopt rules and agency’s An law, and there a matter of an ordinance concerns regarding v. A-Best plenary. Phillips See of review fore our standard (1995). An Co., A.2d Pa. Products authority adopt respect rules with clearly agency has by the challenged policy and enforced administrative established ques- provisions in interpreting ordinance body expertise in City policy be Council is if is to tion. I believe such overturned. by amending § body so 14-226. appropriate to do 26, (Sept. Michael Nutter Stephanie Franklin-Suber from L. Letter 1997), Accordingly, finding the Minor Modification at 54a. R.R. court, Súber, reasonable, and in turn the trial Ms. Franklin Policy was applied the Commission had heavily on the fact that relied questioned never it. Howev- Policy years Council had and that er, Planning Commis- whether the the record fails to establish because Policy Minor actually Council of the Modification ever notified sion failure to dispute, we cannot find that Council's prior to the instant Policy approval. legislatively evinces its overrule administration of a specifically statute where the statute empowers agency to do so. Pottstown v. Borough of Bd., Pennsylvania 605, 741, Mun. Ret. 551 Pa. 712 A.2d (1998); Pennsylvania Human Relations v. Comm’n Union Dist., 168-69 (1973).16 156, town Area Sch. 455 Pa. 313 A.2d Nevertheless, explicitly even where a provide statute does agency rule-making an if powers, agency is directed statute, to operate agency may under also create rules concerning its administration of based on the statute its interpretation Pottstown, of the Borough statute. 712 A.2d 743; Sch., 168-69; Uniontown Area 313 A.2d at see also Pennsylvania Assoc. Underwriters v. Commonwealth of Life Ins., (1977) Dep’t 29 Pa.Cmwlth. 371 A.2d (interpretative commonly rules arise as a result of the tasks assigned to agency). an agency Where administrative specifically statute, adopt authorized to rules under a the rules adopted by agency an binding are upon reviewing court as “(a) part of long they the statute as granted are within the (b) power, pursuant (c) issued proper procedure, rea Sch., sonable.” Uniontown Area 313 A.2d at 169. On the hand, other pronounced where rule is agency pursuant an interpretative its powers, a court shall only defer the rule if it is reasonable and “genuinely tracks meaning underlying Pottstown, Borough statute.” 712 A.2d at 743.

Here, provisions no in Section specifically 14-226 direct Commission to establish regarding rules Nonetheless, administration of the ordinance. Section 14-226 delegates substantial responsibility administrative Plan ning above, Commission. As noted requires ordinance Commission, along Council, with City to review and approve a development plan as a Master Plan for a RC-6 14-226(1). Residential District. Phila. Zoning Code Once a approved, Master Plan is Commission is also responsible for reviewing development plans to make sure that they comply with the Master Plan. See Phila. Zoning 16. We find governing agency’s that the power rules an to administer equally appropriate statute are considering agency’s when power municipal administer a ordinance. (RC-6 14-226(1) to allow multi-use Districts are intended

§ by development plan “approved aon development based Commission.”).17 Planning City filed with the Plan, developers a Master changing regard With Planning Commission for requests must submit initially charge of review is Planning and the Commission 14-226(2)(b). Al § Zoning Phila. Code ing changes. those must then make recommen Planning Commission though the changes to disapproval or of the approval dations Planning Commis Council, heavily on the relies Council within fails to act and if expert analysis sion’s recom receiving Planning Commission’s days of forty-five changes, the Commission’s approving the mendation id.; Phila. final decision. See stands as thé recommendation annotation 1. § 4-604 and Home Rule Charter City Code assigned to the substantial tasks these on Based 14-226, Plan we conclude under Section based on its authority adopt rules ning Commission has the adminis in order to further its of the ordinance interpretation Pottstown, 712 A.2d Borough ordinance. See tration Sch., Moreover, 743; Area 313 A.2d at 168-69. Uniontown for responsible review that the given they comply with the plans to ensure ing development Plan, initially reviewing submissions as as for Master well find, Plan, contrary to we the Common changes to a Master sufficiently was Court, Planning Commission that the wealth policy to ad implement a minor modification empowered to process. minister the review Zoning the Plan- Code also address recent amendments to

17. The plans responsibility development to review to deter- ning Commission’s 14-226(2)(b) they Plan. Section coincide with the Master mine whether Zoning of the Code now states: Approved Development Plan. Compliance with the Determination of reviewing plans submitted the owner Commission in The zoning agent for issuance of property or their authorized following applicable conditions permits determine that all of shall any complied If the fails to meet with. submission have been conditions, be in accordance with it shall not be found to applicable plan. master 14-226(2)(b). Phila. Notwithstanding our conclusion that the Planning power adopt Commission had the a minor modification 14-226, agen to administer Section policy administrative rule, above, cy’s interpretative valid noted cannot be unless is genuinely meaning it and tracks of law reasonable the the being Pottstown, interpreted. See A.2d at Borough 712 743. of Thus, we must determine the Minor Modification whether Policy by adopted Planning Commission is reasonable interpretation of Section 14-226 and should therefore have been by Ap accorded deference Commonwealth Court. pellants argue Policy that the Minor is Modification reason able and only consistent Section 14-226’s intent because changes, de minimis18 initially which would have ap been Plan, proved part may as of the Master be under the contend, however, Policy. Appellees that Minor Modifica Policy reasonable, tion is not it the Planning because allows approve clearly Commission staff to significant changes as minor modifications without formal by review City Council, Commission which is not what Council agree intended. with Appellees. We statutes, primary objective

Like interpreting ordinances is to intent determine the of the legislative body that enacted the 1 § ordinance. See Pa.C.S. 1921.19 Where the words in an ambiguity, ordinance are free from all letter of the may ordinance not be disregarded under the pretext of pursuing spirit. id.; its § See 1 Pa.C.S. 1903 (words phrases in a shall statute be construed in accor dance with accepted their common and usage). Alternatively, when the in an words ordinance are not explicit, legislative body’s may by intent be among ascertained considering, other things, goal, the ordinance’s consequences a particular interpretation ordinance, of the and interpretations of the by ordinance agency. 1 § administrative See Pa.C.S. adjective 18. De meaning trilling minimis is an or minimal. Black's (7th Dictionary Law ed. 1999). ordinances, interpreting 19. When meaning of municipal we are guided by principles statutory Borough construction. Fleet Bd., Zoning Hearing wood v. 538 Pa. 649 A.2d 656 (1994). 651, Furthermore, of an determining proper interpretation ordinance, presume also agencies courts and shall absurd, not intend a result legislative body “[did] 1 Pa.C.S. impossible of or unreasonable.” See execution 1922; Township Municipal v. Allegheny § Moon County of (1996). Auth., Pa. 671 A.2d 14-226(2) Here, developer in a states that a Section by in a Plan may apply “changes” for Master RC-6 District submitting an amended Commission 14-226(2). provi The Phila. Code Council. whether such procedure determining sion sets then forth Plan, allowed as amendments a Master changes shall be previously, calls for formal procedure, and that discussed both review Procedure”). (the Although Id. “Amendment Philadelphia Zoning 14-226 nor

neither Section “change,” interpret the word define applying appreciably to that alter “change” only changes ed as interpretation, a its Plan. As result of Master Policy as a adopted Minor Modification means unexpectedly internally de minimis approving of progressed pursuant plan that was development as arose Soffer, Plan. Martin the Envi with the Master As consistent Commission, for the ex ronmental Review Officer plained: Policy] for Minor is the Modification

One reasons [of get development have with do as experience we we in with plans showing walls plans. built Sometimes come and, reality, in the thickness walls thickness certain of buildings so actual be slightly, be one could could foot say engineering I due to the condi- slightly off, when tions, plan usually what’s on the but slightly off from within few feet. footings where of a you problems

... have Sometimes go building slightly in. You may structure need shift in putting supports, terms what’s there terms of of infrastructure, things like that some- connections into get we have experience slightly times we to shift ground perk, Sanitary ground, to work in their doesn’t shifting particular wind so a built you up house can be Sanitary management to allow or stormwater within the taking ground. same lot and it to the added). N.T., 2/8/99, Lombardo, (emphasis Rick 96-97 Commission, Project Manager Chief further the Minor Policy described Modification follows: process process by The modification is a which at a we look it of compare plan submission and record deter- any change mine whether or not there’s or not. I’m refer- ring modification, basically word was or finding there not a change plan was to warrant from sending back and the everything everything proposed Commission. That that was and the newly plan equal submitted were to or less than of record.

N.T., 12/17/97, added). (emphasis at 20-21 context,

Depending on its word “change” has a range possible meanings, extending wide from very small and unnoticeable to complete deviations transformations of original objects. Therefore, say we plain cannot that the use change the word in Section 14-226 unambig is so clear and it uous that is not open interpretation. See Baker v. Retirement Bd. Allegheny Pa. County, 374 97 A.2d (1953); Fund, see also Envtl. Inc. v. Prot. Envtl. Def. (D.C.Cir.1996) Agency, 82 F.3d (Congress’ use of word “support,” large scope possible which has meanings, was not completely clear and was subject therefore to inter pretation). determining whether Council intended the “change” word to all changes, minute, include no matter how or only those changes notably that differ from the Master Plan, we find it to goals instructive look at the of the ordi nance consequences interpretations and the of of various § 1 ordinance. See clear purpose Pa.C.S. The behind of a creation 6 Residential is encourage RC district planned developments residential large open on tracts of 14-226(a). space. Zoning Phila. See Given this 166 a City such unlikely it that Council intended

purpose, seems de minimis that “change” of so interpretation strict the word Plan, from a Master changes appreciably fail to divert which of or the addition parking space as removal of a such building, hedges presented side of a would have be formally approved before the if all de minimis to be City Clearly, had Council. Procedure, develop- according to the Amendment stalled, ultimately constantly would ment would be which Dis- discourage developers building in RC-6 Residential from Thus, for very purpose such Districts. tricts defeat did Appellees agree, may even we assume 14-226. See reading not such an absolutist of Section intend Moon 11; 1921-22; see also §§ 1 Appellees’ Pa.C.S. Brief 666.20,21 Auth., Township Mun. A.2d at 671 legal principle meaning that 20. De non curat lex is a common minimis trifling or matters. Black's Law the law does not care for small (7th ed.1999). Dictionary principle, disre- 431 Pursuant to this courts merely gard time. matters that to exhaust court's trivial serve Orleans, 957, (D.C.Cir.1968). We v. 406 F.2d 959 District Columbia of agree Appeals United Court of for the with the sentiments of the States soundly applied principle may also be District of Columbia that this determining government regard with to the when the intent of entities responsible regulatory programs. agencies of role administrative 323, Costle, (D.C.Cir.1979). 636 360 See Power Co. v. F.2d Alabama Thus, way interpret we reluctant 14-226 such a are Section See pointless expenditures would of effort” Council. "mandate id. zoning Under interpretation 21. This is consistent traditional laws. laws, zoning zoning seeking change party a from a traditional variance”) ("a heavy three-prong See has to meet a burden. ordinance Valley 550, Adjustment, Zoning Bd. 501 Pa. 462 View Civic Ass’n v. of however, well-established, 637, (1983). developer It A.2d 640 is that a change zoning who from a ordinance not have seeks a de minimis does obtaining heavy meet a variance. v. burden for Stewart 1180, Township, Hearing 110 A.2d Bd. Radnor Pa.Cmwlth. 531 of (1987). exception only minor “applies 1182 This de where minimis sought rigid compliance is zoning deviation from ordinance policy necessary protect public concerns inherent in the Zoning Hearing Borough Bd. Forest ordinance." Constantino v. of Hills, (1992). A.2d are no 152 Pa.Cmwlth. There Rather, a de variance. de variances set criteria for minimis minimis granted according particular circumstances of each case. are (de Stewart, exception proper A.2d at 1182 minimis variance See vary where site few feet of one acre landowner wanted to short Pyzdrowski Adjustment Pittsburgh, 437 requirement); v. Bd.

167 Although find that we was compelled strictly “change” to word in interpret not 14-226(2)(a) as to type changes, so include de minimis Section overly also find that of interpretation we broad the word City would be with intent. In deciding inconsistent Council’s whether or not to a approve development as Master District, Plan and establish RC-6 Residential both the undoubtedly attempt Council protect surrounding community. to interests In deed, both the Commission and Council review development plans hearings public open only to the provide community development of possible notice in garner input regarding the area but also to community See, v. plan.22 e.g., 79, 385 Philadelphia, Schultz Pa. (“[t]he 279, (1956) A.2d object 122 281 public hearing of a is to legislative body enable the preliminarily ascertain the views of the public members of the in regard proposed legislation”). Moreover, by requiring City approval Council’s development plans, the ordinance ensures the interests of citizens development represented affected in are approval process. light given of the consideration to the community in approval process, that City we find must 14-226(2)(a) have the word “change” intended in Section apply any changes that would more than a de have minimis effect on the community, changes so that are in a reviewed forum where community the interests of the represented be affected are given adequate considera tion.23 481, (1970) Pa. (zoning properly granted 263 A.2d 431-32 board de approximately minimis variance to allow increase of of the 4% width lot); Swemley in a one-acre Hearing Township, v. Bd. Windsor (Pa.Commw.1997) (34% 698 A.2d deviation from setback requirement neighbor despite granted was not de minimis fact that was deviation).

variance for similar Inc., Cheney Hope, 22. As Village this Court in v. noted 2 at New 429 Pa. (1968), 241 A.2d "[o]ne attractive most features of Development Planned Unit is ... the chance for the builder and the municipality community to sit down and tailor the needs of the and the requirements of the on land which it is to be built.” Id. at 87. Code, According Pennsylvania Municipal because public preservation integrity has an interest of an claim Planning Commission Here, and the Appellants minimis Policy only allows de Minor Modification by the internally Plan to be to a Master However, reviewing five criteria Planning Commission. Policy, minor modification under change as a qualify that a case, instant we application of their light in especially identifying only in criteria succeed that those cannot conclude intended to exclude that Council changes types those in the As demonstrated Procedure. Amendment from the modifica may as minor case, changes qualify proposed instant Planning by the established five criteria tions under num they or decrease the though increase even built, to be structures, types of structures transform ber for the swimming pool, alter the uses i.e., building to a from a roads. structures, buildings and access completely relocate or changes can be considered types of how these fail to see We Furthermore, permit Plan. minimis changes to a Master de approved under the changes to be clearly significant ting such for an end-run Policy provides a means Minor Modification City Council’s Procedure and renders Amendment around the conse light of these meaningless. approval review Planning Commission’s uphold the simply cannot quences, we interpretative policy as a reasonable Policy Minor Modification meaning of 14-226. Section is consistent'with hold that the Accordingly, we by Appellants changes submitted approved improperly therefore, Policy and erro Modification to its Minor pursuant registra zoning a and use L I to issue neously authorized & develop Hunters allowing them Appellants permit tion Thus, we approved changes. in with the Pointe accordance which reversed Court order of the Commonwealth affirm the body planning agency must plan, governing or development any changes. P.S. hearing approving See 53 prior to public hold apply Although Municipal Code does § 14-226, sought has Philadelphia, we find that in Section area to be affected protection to the residents provide similar changes. upholding the trial court’s order Commission’s approval by Appellants.24 submitted

Chief ZAPPALA in which dissenting opinion Justice files join. Justice CASTILLE and NEWMAN Justice ZAPPALA, dissenting. Chief Justice I agree with the majority’s conclusion that “the Commission has the on authority adopt rules based its interpretation [Philadelphia’s Zoning 14-226] its Majori- order to further administration the ordinance.” ty Opinion Further, at 502. I with agree majority 14-226(2)(b) “change” word set forth in Section of the Code is not so and unambiguous subject clear as to not be to further interpretation. however, I disagree, im- majority’s plicit conclusion that interpretation this Court’s of the term 14-226(2)(b) “change” forth in set Section is more favorable than that by Planning imple- established the menting Minor Policy, the Modification a which was by years established the Commission than thirty ago. more I Accordingly, dissent. noted,

As majority the Planning does not conclude that the Commission lacked authority adopt policy, a such as the Minor Modification Policy, policy such where is reasonable and tracks meaning being interpreted. Specifically, the law 14-226(2)(b) in discussing absolutely pre- whether Section nature, a policy cludes of this majority given that concedes i.e., purpose provision, of the encourage planned resi- dential on developments large open tracts of space,

it unlikely seems City that Council intended such strict interpretation of so that de minimis “change” the word changes fail appreciably Plan, which divert from a Master such as removal parking space of a or the addition of hedges to the side of a building, presented would have to be and formally before the Commission and City de minimis Clearly, if all had to be Romero, (1999) 24. See Commonwealth v. Pa. 722 A.2d (this may Court affirm any decision of court if lower result is correct on ground regard grounds upon). without which lower court itself relied Procedure, develop- to the approved according Amendment stalled, ultimately constantly be which would ment would building in Residential discourage developers from RC-6 very for such Districts. purpose Districts and defeat Thus, agree, may City that Appellees as we assume even reading such an absolutist Council did not intend Section 14-226.

Id. at 504. So while majority it that would appears minimis, de implemented its notion of approve policy of a here, specific policy imple- majority concludes thirty years by ago Commission some mented de minimis. legitimately it considers to be goes beyond what view, “change” word my interpretation this Court’s 14-226(2)(b), is more purposes for no reasonable Section way given by by than that noted, Policy. operated As has Minor Modification and, thirty my pursuant policy years the last have, view, policy, with this it could if Council was satisfied legislatively policy by simply anytime, overruled the amend- ing practice.1 Additionally, the Code eliminate the upon majority’s approach legitimizes legal challenges based de minimis change particular change, constitutes whether Court, and, thus, requires judicial by this determined on a case basis. intervention case notes, regard: majority following in 1. The in footnote this whether the because the record fails establish Commis- actually ever notified Council of the Minor Modification sion dispute, Policy prior to instant we cannot find that Council’s Policy approval. legislatively overrule the evinces failure to its Majority Opinion 14. at 499 n. Contrary I majority, do not the Commission’s failure to find specifically policy of this as relevant have notified determining policy. The whether Council was aware of evidence of policy adopted in indicates that the was Commis- record then, policy implement- since and that the criteria sion has utilized the ed constitutes a minor Commission to determine what writing background, was in 1986. Given this I modification reduced policy fail to how Council could have been unaware of the to see Moreover, nothing period in the an extended time. there is such indicating policy past over that the was unaware record quarter century. foregoing, on the I conclude that our interven- Based would unwarranted, and, in unnecessary my tion in this matter is view, I judicial Accordingly, would waste resources. reverse the Commonwealth Court’s decision. join

Justice NEWMAN this CASTILLE Justice dissenting opinion. A.2d PAVES, Appellant, v.

Sidonie Barry Corson, Appellees. Dr. CORSON and Carol

Supreme Pennsylvania. Court of

Argued April 2002. July

Decided

Case Details

Case Name: Bailey v. Zoning Board of Adjustment

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 17, 2002

Citation: 801 A.2d 492

Court Abbreviation: Pa.