A recent decision by the Pennsylvania Commonwealth Court may be useful to shorten zoning proceedings when the sole issue is whether the zoning permit was properly issued. Given that this case was decided under the Philadelphia Zoning Code, and not the Municipalities Planning Code, its application outside the city may be limited.

Background

The case is Relteva v. Sandmeyer Steel and Greater Bustleton Civic League (GBCL). Relteva, as owner of two parcels of ground totaling 131 acres on Red Lion Road in the City of Philadelphia, obtained “over the counter” by-right zoning permits to develop the two parcels for a warehouse, distribution and trucking/transportation terminal to be leased to UPS.

Sandmeyer Steel and GBCL filed third-party appeals with the Zoning Board of Adjustment in January 2021 that raised a dozen issues to challenge L&I’s grant of the zoning permits.

In its appeal, Sandmeyer claimed that (1) the proposed use improperly effectuates a subdivision; (2) the proposed use of the Sandmeyer Lane parcel as an accessory driveway use to the subject property violates the Zoning Code; (3) the proposed vehicle maintenance and fueling uses on the subject property are prohibited in the FNE Overlay District; (4) the proposed accessory driveway use of the Sandmeyer Lane parcel exceeds that use’s limitations; and (5) the proposed use of the Red Lion parcel is not properly classified as an I-2 use under the Zoning Code.

GBCL claimed in its appeal that (1) the plans submitted by Relteva upon which L&I based the zoning permits were defective, misleading, and do not provide full and accurate information; (2) the challenged permit was not properly processed or issued by L&I; (3) the permit was not posted as required by the Zoning Code; (4) the proposed principal uses are not “Limited Industrial” or “General Industrial” uses as categorized in the Zoning Code, but are “Intensive Industrial” uses; (5) the proposed retail sales, commercial vehicle repair, and vehicle fueling uses are prohibited in the FNE Overlay District; (6) the proposed accessory structures violate the requirements of the Zoning Code; and (7) Relteva failed to comply with the notice requirements of the Zoning Code during the Commission’s CDR Committee review process thereby violating GBCL’s due process rights.

In April 2021, GBCL’s attorney asked the ZBA to issue subpoenas compelling the appearance of multiple parties. Ultimately, on April 27, 2021, at the first hearing on Relteva’s application, the ZBA asked counsel for the parties to summarize their respective positions. Based on the arguments made at the hearing, the ZBA’s counsel sent the parties a request for: (1) clarification regarding the specific grounds upon which their appeal was based; (2) a list of all witnesses that they propose to present with an offer of proof as to the issues that each witness was expected to address and the relevance of their testimony; and (3) legal memoranda addressing the identified issues in the appeals.

At the start of the ZBA’s second hearing, the Chair stated that the ZBA had reviewed all submitted materials and made the following rulings: Objectors’ request for subpoenas was denied; the hearing would continue with GBCL’s cross-examination of the L&I plan reviewer; the ZBA would hear testimony from the L&I supervisor (whose testimony would be limited to confirming whether L&I properly issued the permits) the ZBA would then hear limited testimony necessary to establish Objectors’ standing; and thereafter no more testimony would be permitted.

Appeals Denied

The ZBA denied the objectors’ appeal and concluded that “the proposed testimony from expert witnesses and others intended to show the potential harmful effects of the proposed uses was properly excluded as not relevant.”

Specifically, the ZBA ‘‘was asked to decide if the proposed uses were, as L&I concluded, permitted by right in the I-2 Zoning District, and the proposed evidence was irrelevant because “[e]vidence offered to establish that the uses’ impact would exceed that expected in an I-2 Zoning District ... would not have made any fact at issue more or less probable so it was not relevant and was properly excluded.”

Testimony Properly Excluded

On appeal, the Commonwealth Court affirmed the decision of the Trial Court, including its holding to exclude the testimony of all of the protestant witnesses given that the sole issue before the ZBA was whether or not the proposed use was permitted “by-right” under the zoning code.

The majority on the Commonwealth Court panel adopted the opinion of the Trial Court without further comment.

However, in a strong dissent, Judge Stacy Wallace objected to the ZBA’s decision to exclude the protestants witnesses testimony and other evidence. In her dissent, Judge Wallace would have remanded the case back to the Trial Court with instructions to vacate the ZBA’s decision and remand the case to the ZBA with instructions to properly conduct a public hearing as required by the City’s Zoning Code.

For further information about this case or how to best process a “by-right” zoning application in Pennsylvania, contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.