This case required the Commonwealth Court to determine whether or not a zoning hearing board had the authority to place conditions on the grant of a special exception.  In holding that it did, the court relied on the language of the Philadelphia city code, which it determined provided the board with adequate discretion to impose the conditions.

6600 Bustleton Associates (the “Developer”) sought a special exception from the City of Philadelphia’s Zoning Board of Adjustment (the “Board”) to operate a personal care facility.  The facility would house only female residents coming from detox and those suffering from other mental health issues.  The facility would offer group counseling, as well as courses on life skills.  Take Back Your Neighborhood (the “Objectors”) objected to the special exception in front of the Board.  The only objection they made at the hearing was that a personal care facility was not the best use of the property.           The Board granted the special exception pursuant to Section 14-602(1) of the Philadelphia Zoning Code.  However, it placed several conditions on the personal care facility.  The Developer had to obtain a license and inspection permit within one year, all construction had to comply with the plans approved by the Board, a new application would have to be filed and a hearing would have to be held if the Developer failed to comply with the foregoing conditions, the facility could house a maximum of thirty-five residents, and the approval was temporary for a period of two years.

The Objectors appealed the decision to the court of common pleas.  They raised four issues: (1) the Board erred in granting the special exception because the Developer did not present evidence of compliance with certain Pennsylvania Department of Human Services regulations incorporated into the city code; (2) the Board erred in determining the proposed personal care facility would not have a detrimental impact on the surrounding area; (3) the Board erred in determining the Developer showed compliance with the landscaping and bicycle parking requirements of Section 14-804 of the city code; and (4)  the Board abused its discretion by issuing a “temporary” special exception.  The court affirmed the decision of the Board, finding that the Objectors failed to produce evidence to support their four arguments.

On appeal to the Commonwealth Court, the Objectors raised the same four issues as below.  Because the Objectors’ first three issues were never argued before or cited by the Board, the Commonwealth Court held that these arguments had been waived and were, therefore, rejected.

In response to the Objectors’ fourth issue raised on appeal, whether the Board abused its discretion, the court relied on the plain language of the city code to hold that there was no abused of discretion.  Section 4-607(2) of the city code states that “‘[i]n the exercise of its powers, the [Board] may . . . make such order, requirement, decision or determination as ought to be made.’”  The court held that this language gave the Board sufficient authority to grant a special exception subject to conditions.

Click here to read: Take Back Your Neighborhood (RCO) v. 6600 Bustleton Assocs., No. 141 C.D. 2017 (Pa. Commw. Ct. Oct. 24, 2017).

Edited by:

Turchick_RobertRobert Turchick