Opinion
No. 1479 C.D. 2011
10-16-2012
Manayunk Neighborhood Council, Inc. and Kevin Smith, Appellants v. The Philadelphia Zoning Board of Adjustment and The City of Philadelphia
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Manayunk Neighborhood Council, Inc. and Kevin Smith (collectively "MNC") appeal from the Order of the Court of Common Pleas of Philadelphia County (trial court), which affirmed the Philadelphia Zoning Board of Adjustment's (Zoning Board) Decision (Decision). The Zoning Board's Decision granted, with certain provisos, the requests filed by Rubb LLC (Applicant) for: (1) a Zoning Board certificate pursuant to Section 14-303 of the Philadelphia Code governing Zoning and Planning (Zoning Code), to use the property located at 4441-45 Main Street (Property) primarily as a proposed eat-in and take-out restaurant; and (2) a variance from the requirement that the proposed use include six accessory parking spaces pursuant to Section 14-312(1)(b)(.3) of the Zoning Code. On appeal, MNC argues, inter alia, that: (1) the Zoning Board failed to the make required findings of fact with respect to Applicant's requests for a certificate and variance; (2) there is no competent evidence to support the Zoning Board's Decision; (3) the Zoning Board improperly precluded the cross-examination of Applicant's witness; and (4) the Zoning Board ignored relevant issues raised by MNC purporting to show that the proposed use violates the Zoning Code. Upon a thorough review of the Zoning Board's Decision and the certified record, we discern no error and, therefore, will affirm.
Kevin Smith is President of Manayunk Neighborhood Council, Inc. (Hr'g Tr. at 18.) This Court notes that MNC did not include a copy of the transcript of the December 15, 2009 hearing before the Philadelphia Zoning Board of Adjustment (Zoning Board) in the reproduced record. The hearing transcript can be found in the record certified to this Court at Item 23.
Title 14 of the Zoning Code was repealed and replaced by the provisions of Bill No. 110845, approved December 22, 2011, and effective August 22, 2012. However, since Applicant's requests and the Zoning Board's Decision pre-date the effective date of the new provisions of the Zoning Code, the prior version controls this matter and all citations herein will be to that version unless otherwise noted. Section 14-303(3)(p) provides that a restaurant that allows take-out will only be permitted in the C-2 Commercial District if a "Zoning Board of Adjustment Certificate" is obtained.
The Property is located in the Manayunk neighborhood of Philadelphia in the C-2 Commercial District. The Property is owned by Loring Building Products, which leases the Property to Applicant. On September 14, 2009, Applicant applied to the Philadelphia Department of Licenses and Inspections (Department) for a zoning/use registration permit for a proposed 650-square-foot, eat-in and take-out restaurant, with seating for 15 patrons. The Department issued a notice of refusal on September 18, 2009, because the application did not include the required six accessory parking spaces and a Zoning Board certificate was required for the take-out component of the proposed use. Applicant timely appealed the Department's refusal to the Zoning Board, wherein it sought the required certificate and a variance with respect to the parking requirement. A public hearing was held before the Zoning Board on December 15, 2009. (Zoning Board's Findings of Fact (FOF) ¶¶ 1-6.)
Section 14-1804 of the Zoning Code requires that the Zoning Board consider eight criteria in determining whether to grant a certificate. When applying for a use certificate, the applicant has the burden of presenting evidence showing compliance with subsections (a) through (e) and (h) of Section 14-1804 of the Zoning Code, such as that the grant of a certificate will not increase congestion in the streets or impair light and air to adjacent properties. Bray v. Zoning Board of Adjustment, 410 A.2d 909, 913 (Pa. Cmwlth. 1980). The objectors have the same burden regarding criteria (f) and (g) of Section 14-1804 to ensure that the grant of a certificate will not adversely affect public health, safety and welfare and that it will be in harmony with the spirit and purpose of the Zoning Code. Id.
Sections 14-1802(1) and (2) of the Zoning Code require that the Zoning Board consider twenty criteria in determining whether to grant a variance. The heavy burden of proof in seeking to obtain a variance is upon the applicant. Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011).
In support of its appeal, Applicant presented the testimony of one of its principals, Richard Rivera. Mr. Rivera briefly testified as to the proposed restaurant's hours of operation as stated by Applicant's counsel; specifically, the restaurant would be open on Monday through Wednesday from 11 a.m. to midnight, on Thursday through Saturday from 11 a.m. to 2 a.m., and on Sunday from 11 a.m. to 10 p.m. (Hr'g Tr. at 10; FOF ¶ 15.) Mr. Rivera stated that the scale and size of the proposed use required that the restaurant operate during these hours and that, given the restaurant's weekend closing time of 2 a.m., it would not be catering to the "after bar" crowd. (FOF ¶ 29.) Mr. Rivera also affirmed and adopted, as his own testimony, the statements made by Applicant's counsel on the record describing the proposed use and how the use satisfied the requirements for the certificate and variance. (Hr'g Tr. at 68-72.) Counsel for MNC moved to strike that evidence on the basis that he did not have the opportunity to cross-examine Applicant's counsel. (Hr'g Tr. at 72.) The Zoning Board did not specifically rule on MNC's motion, but did rule that MNC's counsel could not cross-examine Mr. Rivera as to parking because Mr. Rivera did not testify with respect to that issue on direct examination. (Hr'g Tr. at 72, 76-78.) In response MNC's counsel argued that, since Mr. Rivera was the only fact witness, there was no testimony regarding parking to support the variance request. However, the Chairwoman of the Zoning Board pointed out to MNC's counsel that Applicant had previously stated during the hearing that there was no on-site parking. (Hr'g Tr. at 77-78.)
The following witnesses testified that they supported the proposed use: (1) Terri Loring of Loring Building Products, the owner of the Property; (2) Howard Moseley, Manayunk Development Corporation; (3) Robert Swarbrick, a developer known as RJS Properties; and (4) Jill Fink, proprietor of Mugshots Coffee House. In addition, Applicant submitted letters in support of the proposed use and the Philadelphia Planning Commission indicated during the hearing that it did not oppose granting Applicant the certificate and variance. A district councilman supported Applicant's proposed use, provided that take-out was only available until 11 p.m. (FOF ¶¶ 18-20.)
In opposition, MNC argued that the Zoning Board should impose more restrictive operating hours and that any hardship relating to the lack of parking was self-imposed. MNC submitted the zoning records for the Property showing that a variance was previously granted in 1992 from the Zoning Code's open space requirements. MNC contended that if the Property owner had not enclosed this open space it could have been used for parking. (FOF ¶ 30.) MNC also presented three fact witnesses.
Mr. Smith testified, as follows, in opposition to Applicant's proposed use of the Property. Granting Applicant permission to operate the restaurant at the hours proposed "would exacerbate existing problems with late night crowds on Main Street." (FOF ¶ 25.) The late night visitors make noise, create trash, and negatively impact area residents' quality of life. While acknowledging that other businesses along Main Street are open until 2 a.m. or later, Mr. Smith opined that those operating hours are causing a significant hardship. Because the MNC cannot change the operating hours of these businesses or "rein them in," the MNC makes every attempt to keep the problems from worsening. Mr. Smith believed that Applicant's proposed use would be specifically targeted at the late night food crowds along Main Street. (FOF ¶ 25.) Mr. Smith also submitted into the record documentary evidence consisting of, inter alia, letters, pictures, and a map.
John Hunter, MNC's vice president, and Hilary Langer, who lives in close proximity to the Property, also testified in opposition to the proposed use. Mr. Hunter resides in the Manayunk neighborhood and he expressed concern that the proposed use would increase traffic and create parking and trash problems. Mr. Hunter was also concerned with the proposed hours of operation. (FOF ¶ 26.) Mr. Langer described the current problems with the late night crowds, which include traffic, noise, and vandalism. Mr. Langer believed that permitting the addition of another late night restaurant would add to the existing problems. However, Mr. Langer was not totally opposed to the use and requested that the Zoning Board limit the operating hours to a midnight closing on week nights and a 1:00 a.m. closing on weekends. (FOF ¶ 27.)
Based upon the record as a whole, the Zoning Board determined that the proposed use met all of the Zoning Code's requirements for a grant of a certificate and a variance. (Zoning Board's Conclusions of Law (COL) ¶ 21.) In its Decision, the Zoning Board set forth each requirement for a certificate and the evidence that supported its determination that Applicant had proven that it was entitled to a certificate. (COL ¶¶ 2-8.) The ZHB further explained that the MNC failed to meet its burden of proving that the proposed use would adversely affect the public health, safety or welfare or would be inconsistent with the spirit and purpose of the Zoning Code. (COL ¶¶ 9-10.)
With respect to the variance, the Zoning Board set forth the factors outlined in the Zoning Code that are to be considered when reviewing a request for a variance, along with case law outlining the principles of law applicable to variances. (COL ¶¶ 12-15.) Based on the entire record, the Zoning Board: (1) determined that the criteria for a grant of the variance were satisfied; (2) explained that the existing conditions of the Property and "the impossibility of creating on[-]site parking without demolishing existing structures [was] sufficient to establish unnecessary hardship"; (3) explained why the hardship was not self-imposed; and (4) explained why the record evidence established that granting the variance would "not have an adverse impact on the public health, safety or welfare." (COL ¶¶ 16-20.)
Accordingly, three of the Zoning Board members voted to grant the relief requested by Applicant with the provisos: no live music, no disc jockeys, no cover charge, music not audible off premises, no take-out window, and all trash stored on premises. (Decision at 9, R.R. at 11.) One member of the Zoning Board voted to grant the requested relief with the foregoing provisos, but would also require that the take-out component of the proposed use close by midnight seven days a week. (Decision at 9, R.R. at 11.) The MNC appealed the Zoning Board's Decision to the trial court. By Order dated July 6, 2011, the trial court affirmed the Zoning Board's Decision and denied MNC's appeal. This appeal followed.
Where, as here, the trial court did not take any additional evidence, "this Court's scope of review is limited to determining whether the [zoning board] committed an error of law or an abuse of discretion." Hill District Project Area Committee, Inc. v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 638 A.2d 278, 280 n.1 (Pa. Cmwlth. 1994). An abuse of discretion will only be found where the zoning board's findings are not supported by substantial evidence. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Teazers, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 682 A.2d 856, 858 n.3 (Pa. Cmwlth. 1996).
MNC first argues that the Zoning Board failed to make any factual findings to support its Decision granting Applicant a certificate and variance. For example, MNC argues, the Zoning Board did not make a finding of fact as to unnecessary hardship, only a conclusion that, as a matter of law, denial of the variance would cause unnecessary hardship. MNC contends that, due to the lack of factual findings, this Court should reverse the Zoning Board's Decision.
The City of Philadelphia, the Zoning Board, and Applicant filed separate notices with this Court indicating that they would not be filing a brief or participating in this appeal.
Procedurally, the Local Agency Law sets forth the requirements for a decision of the Zoning Board in Philadelphia. Section 555 of the Local Agency Law, 2 Pa. C.S. § 555, states that "[a]ll adjudications of a local agency shall be in writing, shall contain findings and the reasons for the adjudication." Although Home Rule legislation is the source of zoning power for Philadelphia, this Court's decisions interpreting Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), which requires that a zoning hearing board's decision contain findings of fact, conclusions of law, and the reasons for the findings, are instructive. In this respect, we have held that:
Act of July 31, 1968, P.L.805, as amended, 53 P.S. § 10908(9).
A zoning board's opinion is sufficient if it provides an adequate explanation of its resolution of the factual questions involved, and sets forth its reasoning in such a way as to show its decision was reasoned and not arbitrary.Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 816 (Pa. Cmwlth. 2005).
Where a zoning board's decision is clear and substantially reflects application of the law governing variances the decision is sufficient to enable effective review.
The Zoning Board's Decision contains thirty detailed findings of fact and twenty-one detailed conclusions of law. Some of the Zoning Board's "factual" determinations are set forth as conclusions of law, instead of as findings of fact; however, this does not mandate a reversal of the Zoning Board's Decision. When reviewing the Zoning Board's Decision in its entirety, it is apparent that the Decision meets the requirements of Section 555 of the Local Agency Law and is more than sufficient to enable effective review. As stated previously, the Zoning Board's Decision sets forth the Zoning Code's numerous requirements for a certificate and a variance, along with case law outlining the applicable principles of law. The Decision specifies the evidence that the Zoning Board accepted to support the determination that Applicant had proven entitlement to a certificate. The Decision also specifically includes a detailed explanation as to why the Zoning Board concluded that Applicant established entitlement to a variance from the parking requirements. Finally, the Decision articulates an adequate explanation of the Zoning Board's resolution of the pertinent factual questions and the reasoning for each of the Zoning Board's determinations. We conclude that the Decision is reasoned and not arbitrary; therefore, we will not reverse or remand for additional findings of fact.
Next, MNC argues that the Zoning Board erred in granting the variance. MNC contends that Applicant failed to establish that the Property suffers an unnecessary hardship due to the Zoning Code's parking requirements and that the lack of parking is unique. MNC further contends that there can be no hardship because Applicant can provide the six required parking spaces via the Zoning Code's special use permit process. Finally, MNC argues that because the Zoning Board failed to make a finding for every one of the twenty criteria that the Zoning Board must consider as set forth in Section 14-1802 of the Zoning Code, the Decision granting Applicant a variance must be reversed.
We note that MNC does not argue in this appeal that any hardship suffered by the Property was self-imposed by Applicant.
"The reasons for granting a variance must be substantial, serious, and compelling." Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). Our Supreme Court has held that:
It was part of the [Zoning Board's] function here to determine whether the evidence satisfied the criteria for granting a variance. Section 14-1802(1) of the Zoning Code sets forth the specific criteria which the [Zoning Board] must consider. The criteria can be boiled down into three key requirements, that of: 1) unique hardship to the property; 2) no adverse effect on the public health, safety or general welfare; and 3) the variance will represent the minimum variance that will afford relief at the least modification possible.East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 324-25, 639 A.2d 446, 447 (1994). As recently reaffirmed by this Court, "in order to establish unnecessary hardship, 'an applicant must prove that either: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance.'" South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, ___ A.3d ___, ___ (Pa. Cmwlth., No. 1675 C.D. 2011, filed September 13, 2012), slip op. at 4 (quoting Taliaferro, 873 A.2d at 812) (footnote omitted).
While the MPC is not applicable in Philadelphia, the requirements set forth in Section 910.2(a) of the MPC, added by Section 89 of the Act of December 21, 1988, P.L. 1329, are applicable to variances sought in Philadelphia pursuant to the Zoning Code. Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 772 A.2d 1040, 1044 (Pa. Cmwlth. 2001).
In this matter, there is no dispute that the proposed use is permitted. However, when Applicant's request for a zoning/use registration permit was denied because the application did not include the required six accessory parking spaces, Applicant chose to seek a variance from the Zoning Code's parking requirements. Applicant was not required to seek a special use permit as provided for in Section 14-1803 of the Zoning Code by either the Zoning Code or the Department's refusal to issue the requested zoning/use registration permit. Moreover, MNC does not articulate to this Court on what basis it asserts that Applicant was required to obtain a special use permit, rather than a variance, or why Applicant's failure to obtain a special use permit should result in a reversal of the Zoning Board's Decision granting Applicant the requested variance relief. There is thus no basis to support MNC's contention that Applicant was not entitled to a variance because Applicant could provide the required parking through the Zoning Code's special use permit process.
Section 14-1801(d) of the Zoning Code provides that the Zoning Board "may, after public notice and public hearing" grant required special use permits. Section 14-1803(1) details the various criteria required for a special use permit and Section 14-1803(3)(b) provides that "[f]or parking lots accessory to . . . restaurants, but not located on the same lot as required by Section 14-312(1), the applicant shall present evidence that they own or have leasehold interest for a period of at least seven (7) years for the lot where the required off-street parking is to be provided."
Here, the Zoning Board found that no on-site parking was available, but that two public parking lots were located in the immediate vicinity along with metered street parking. (FOF ¶ 16.) The Zoning Board determined further that Applicant was entitled to a variance from the parking requirements because: (1) "[t]he proposed restaurant will occupy space in an existing structure on a lot that does not include open area where accessory parking could be created"; (2) "[t]he existing conditions and the impossibility of creating on[-]site parking without demolishing existing structures is sufficient to establish unnecessary hardship"; and (3) the variance "will not have an adverse impact on public health, safety or welfare." (COL ¶¶ 17, 20.) As support for its finding that there would be no adverse impact on public health, safety or welfare, the Zoning Board explained:
The evidence of record also establishes that grant of a variance from the [Zoning] Code's parking requirements will not substantially increase congestion in the public streets, create an undue concentration of population or otherwise endanger the public safety. The proposed restaurant is a short distance from two public parking lots and in an area with metered parking. The availability of off[-]site parking, the restaurant's size and scale, and the likelihood that patrons will include nearby residents and pedestrians already in the area combine to show that the use will not have an adverse impact on public health, safety or welfare.(COL ¶ 20.) The foregoing determinations are supported by the record. MNC submitted zoning records from the Zoning Board's files into evidence showing that the Property does not have any open space where on-site accessory parking could be created. (Hr'g Tr. at 23-25; FOF ¶ 16.) Applicant's representative, Mr. Rivera, testified that there was a public parking lot directly across from the area Post Office and another public parking lot within 300 feet of the proposed use. (Hr'g Tr. 68; FOF ¶ 16.) In addition, Mr. Rivera adopted, as his own testimony, Applicant's counsel's statements that there are two public parking lots in the area, along with metered parking. (Hr'g Tr. at 9, 71-72; FOF ¶ 16.)
MNC contends that the Zoning Board erred by refusing to allow its counsel to cross-examine Mr. Rivera on the parking issue. Section 554 of the Local Agency Law, 2 Pa. C.S. §554, provides that "[r]easonable examination and cross-examination shall be permitted." (Emphasis added.) The hearing transcript reveals that the Zoning Board permitted MNC's counsel reasonable cross-examination of Mr. Rivera. Furthermore, cross-examining Mr. Rivera on the issue of parking would have been repetitive given the zoning records submitted into evidence by MNC showing no on-site parking and the Zoning Board's acknowledgement that Applicant had previously admitted that fact. (Hr'g Tr. at 71- 79.) Thus, we discern no error.
We conclude, therefore, that the Zoning Board did not err and that the record supports its determinations that: (1) an unnecessary hardship was established where it was impossible to create on-site parking without demolishing existing structures; and (2) because there was other off-site parking available in the immediate vicinity of the proposed use, the variance from the parking requirements would not have an adverse impact on public health, safety or welfare.
See Davis v. Zoning Board of Adjustment, 468 A.2d 1183, 1185 (Pa. Cmwlth. 1983) (holding that unnecessary hardship peculiar to the property existed where conformance with the dimensional zoning restrictions was not possible absent demolition and reconstruction).
MNC does not argue that the variance will not "represent the minimum variance that will afford relief at the least modification possible." East Torresdale, 536 Pa. at 325, 639 A.2d at 447.
MNC also contends that the Zoning Board was required to make a finding with respect to each of the twenty criterion set forth in Section 14-1802 of the Zoning Code. However, Section 14-1802 directs only that the Zoning Board consider the criteria. It does not mandate that the Zoning Board make a specific finding with regard to every individual criterion set forth therein. Not all of the criteria found in Section 14-1802 of the Zoning Code are relevant to every variance request considered by the Zoning Board. Here, the Zoning Board made findings of fact and conclusions of law based upon its consideration of the relevant criteria found in both Section 14-1802 of the Zoning Code and applicable case law. Moreover, requiring the Zoning Board to make such extensive findings could result in an adjudicator or reviewing court providing "relief that goes beyond the necessity of curing an unnecessary hardship under the applicable zoning ordinance." South of South Street, ___ A.3d at ___, slip op. at 7. Accordingly, we decline to reverse the grant of the variance because the Zoning Board did not make twenty separate findings addressing each of the twenty criterion found in Section 14-1802 of the Zoning Code.
Next, MNC argues that the Zoning Board erred in granting Applicant a certificate because Applicant failed to establish that it met the underlying requirements of Section 14-1804 of the Zoning Code. MNC contends that the Zoning Board: (1) erroneously relied upon Applicant's counsel's statements as testimony to support granting the certificate; and (2) improperly accepted this legal argument over MNC's fact testimony that the proposed use would be detrimental to the neighbors.
MNC repeats its argument with respect to Section 14-1802 of the Zoning Code and contends that the Zoning Board was required to make separate findings of fact addressing each of the criterion set forth in Section 14-1804 of the Zoning Code; however, we reject MNC's contention for the same reasons we did not accept MNC's argument with respect to Section 14-1802.
MNC is correct that, generally, an adjudicator or court may not rely upon an attorney's statements as evidence to support findings of fact. However, during Mr. Rivera's testimony in this matter, he adopted the statements made by Applicant's counsel, as his own testimony, to establish entitlement to the certificate. The Zoning Board accepted Applicant's evidence as fact and made findings of fact and conclusions of law based on this evidence. This was well within the province of the Zoning Board. "The Board as the fact-finder has the ability to reject even uncontradicted testimony that it finds not credible or unpersuasive." In re Arnold, 984 A.2d 1, 15 (Pa. Cmwlth. 2009) (citing Nettleton v. Zoning Board of Adjustment of the City of Pittsburgh, 574 Pa. 45, 828 A.2d 1033 (2003)). The Zoning Board was under no obligation to accept MNC's evidence over that of Applicant. Therefore, the Zoning Board's Decision granting Applicant the certificate is supported by substantial evidence.
We note that, at the time of the Zoning Board hearing, the Zoning Board was permitted, pursuant to former Section 14-1805(8) of the Zoning Code, to consider statements by a person's attorney as testimony on the person's behalf. The current version of the Zoning Code does not contain this exact provision. Instead, Section 14-303(14)(f) of the current Zoning Code provides that "[s]tatements by a person's attorney on his behalf shall not be considered as testimony, except where agreed upon by the parties."
MNC requests that this Court take judicial notice of two Pennsylvania Liquor Control Board (PLCB) actions against other properties owned by one or more of Applicant's principals to prove that Mr. Rivera's assurance that the proposed use's closing time of 2 a.m. would not contribute to late night problems is not credible. MNC contends that Applicant's "actions and citations, speak louder than their words" as shown by these two PLCB actions. (MNC Br. at 6.) Notwithstanding the fact that these actions do not relate to the Property at issue here, this evidence was not presented to the Zoning Board for consideration. Moreover, MNC took advantage of the opportunity during the Zoning Board hearing to submit evidence into the record, albeit not accepted by the Zoning Board as credible, purporting to show how the 2 a.m. closing would result in harm to the public from the late night crowds in the vicinity of the Property. (Hr'g Tr. at 35-38, 40-50.) Accordingly, we will not take judicial notice of the PLCB's actions as requested by MNC. It is simply beyond this Court's scope of review to take judicial notice of this new evidence, weigh it, and, based thereon, make a new credibility determination with respect to Mr. Rivera's testimony.
Lastly, MNC contends that Applicant's proposed use violates the Zoning Code's requirements that only one principal structure is permitted on a lot and that no accessory use, such as a restaurant, is permitted. As support for this argument, MNC cites to Sections 14-102(99), 14-102(100), 14-113, and 14-303(2)(s) of the Zoning Code. MNC argues that the Zoning Board erred by ignoring MNC's argument on this point and granting Applicant a certificate.
Section 14-102(99) defines "Principal Building" as "[a] building in which the primary use of the lot on which the building is located is conducted." Section 14-102(100) defines "Principal Use" as "[t]he main use and primary purpose of a lot or structure as distinguished from an accessory use." Section 14-113 provides that "[u]nless otherwise specified under the provisions of this Title, only one principal structure or use shall be permitted on a lot." Finally, Section 14-303(2)(s), Use Regulations - Without Certificate, provides that:
Accessory uses, customarily incidental to any of the above permitted uses; provided, that the accessory use does not occupy more than 25% of the gross floor area, and does not include open air storage of materials, equipment or merchandise, except as provided in subparagraph (n) above. Accessory use shall not include the preparation and sale at retail of food to be consumed off premises whether by a restaurant, café, soda or ice cream fountain.
Although preserved, we note that neither the Zoning Board nor the trial court addressed this issue.
However, the sections of the Zoning Code MNC cites do not support its contention that the proposed use violates the Zoning Code. For the C-2 Commercial District, the Zoning Code contains two categories of use regulations governing permitted uses in that district. First, pursuant to Section 14-303(2), "Use Regulations - Without Certificate," a property owner is allowed to utilize commercial property for certain permitted uses without obtaining a "Zoning Board of Adjustment Certificate." In other words, if a proposed permitted use falls under the provisions of Section 14-303(2), the property owner need not comply with any additional requirements or prerequisites in order to be entitled to use the commercial property as desired. It is Section 14-303(2)(s) that contains the provision that an accessory use, incidental to any of the uses permitted without a certificate, shall not include a restaurant with a take-out component. Second, pursuant to Section 14-303(3), "Use Regulations - With Certificate", several additional uses are permitted in the C-2 Commercial District only if the property owner first obtains a "Zoning Board of Adjustment Certificate." Pursuant to Section 14-1801 of the Zoning Code, such certificate may only be issued after public notice and a hearing before the Zoning Board wherein the Zoning Board must consider the criteria in Section 14-1804, as discussed previously; neither this section nor Section 14-303(3) contain any provision regarding the prohibition of a take-out restaurant as an accessory use.
Here, the Department refused to issue a zoning/use registration permit to Applicant because it did not first secure a "Zoning Board of Adjustment Certificate" pursuant to Section 14-303(3)(p) to legally use the subject Property as a restaurant with a take-out component. As such, Applicant did not have to comply with Section 14-303(2)(s) of the C-2 Commercial District "Use Regulations - Without Certificate," as argued by MNC. Accordingly, Applicant's proposed use did not violate the Zoning Code's requirement that "[u]nless otherwise specified under the provisions of this Title, only one principal structure or use shall be permitted on a lot," as suggested by MNC. Therefore, the Zoning Board did not err by not accepting MNC's argument on this point.
MNC also argues that the Zoning Board violated its voting procedures and erred by failing to require Applicant's proposed use to cease operation at midnight as required by the narrowest concurring vote. MNC did not raise this issue in its "Statement of Matters on Appeal" as required by Pennsylvania Rule of Appellate Procedure 1925(b). (C.R., Item 31.) In addition, the trial court did not address this issue in its Rule 1925(a) opinion in support of its Order affirming the Zoning Board's Decision. (C.R., Item 33.) Accordingly, we will not address this issue as MNC has waived it. See Pa. R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement . . . are waived."). --------
For the foregoing reasons, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 16, 2012, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge