05 AUG :52 pm IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION

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1 05 AUG :52 pm E. HAURIN IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION IN RE: APPEAL OF THE FAITHFUL LAURENTIANS, BY CAROLYNNE DEVINE AND VENISE WHITAKER, TRUSTEES AD LITEM COURT OF COMMON PLEAS SPECIAL DOCKET PROGRAM CIVIL TRIAL DIVISION DECEMBER TERM, 2016 NO: 0058 ANSWER IN OPPOSITION TO THE MOTION TO QUASH OF THE FAITHFUL LAURENTIENS, THROUGH CAROLYNNE DEVINE AND VENISE WHITAKER TRUSTEES AD LITEM. 1. Denied. There is no written decision by the Philadelphia ZBA in this case. This is an appeal regarding the failure of the ZBA to make and file a written decision as defined in the Local Agency Law 753, the Phila Code (m), or the Phila. ZBA Rules & Regulations An example of a ZBA decision from the City of Pittsburgh, is reproduced below and provided as Exhibit A. 1

2 The Pittsburgh decision explains the reasoning of the ZBA, provides findings of fact and conclusions of law. It does not cite to a transcript but is signed by the Board members. The Record of Voting which the Philadelphia Zoning Board of Adjustment and the City of Philadelphia incorrectly refers to as a decision is reproduced below. The Philadelphia decision consists of three signatures and a page of blank checkboxes. 2

3 The problem of issuing a light decision is discussed in publicly available policy papers. Sometimes due to budget limitations, a ZHB may be tempted to cut corners or not issue the required findings of fact and conclusions of law with the belief that the decision may not be appealed. However, this practice puts the losing (or objecting) party at a disadvantage because it does not know for certain the legal basis for the decision and how to best formulate its appeal. To ensure due process, follow the MPC and include findings and conclusions unless the application is granted and nobody raises an objection. Commonwealth of Pennsylvania, Governor s Center for Local Government Services. The Zoning Hearing Board Planning Series #6, 2. Admitted. By way of clarification, a fictitious name registration not required for an unincorporated association to participate before the ZBA. 3. Denied as stated. The Faithful Laurentians is an unincorporated association which appears by and through its members. The association is acting by and through two members who are acting in their personal capacity and as trustees ad litem, Venise Whitaker ( Whitaker ) and Carolyn Deveine ( Devine ). The members of the Faithful Laurentians appeared and participated at the September 20, 2016 RCO zoning hearing, and appeared and participated at the November 1, 2016 ZBA zoning hearing 1. At the November 1, 2016 ZBA zoning hearing, Whitaker, who lives six doors down from the church NT31:17-18 provided documents to the ZBA including a list of officers and members of the Faithful Laurentians. NT31:14, RR#4pp2-3. Whitaker was testifying directly to the ZBA regarding the Faithful Laurentians, their mission plan and their business plan, NT31:22-23 you will see that I formed with the board that we have[,] a mission plan and a business plan. DEEMED STANING THROUGH MEMBERS WITHIN 200 OF THE PROPERTY The Philadelphia zoning code, (12)(e) requires the City to determine which neighbors are within 200 of a zoning issue, and provide the address to the ZBA 1 The first zoning hearing was held pursuant to (12) before a Registered Civic Organization ( RCO zoning hearing ) which produced a community vote and a written RCO decision, RR#8pp1-2. The second zoning hearing was held pursuant to (14) before the ZBA, which produced a ZBA vote, RR#1p4, but no written ZBA decision. 3

4 appellant, who then mails notice of the RCO zoning hearing and ZBA zoning hearing 2. Caselaw 3 holds that persons identified as being entitled to notice are within the zone of protection of the code and deemed aggrieved by the zoning code. Appellants assert that the following members are identified in the record NT31:14, RR#4pp2-3, and are within the 200 zoning of protection 4, established by the Philadelphia Code. NAME ADDRESS DISTANCE (per google maps) Carolyn Bechta Devine 1647 E Berks St ~199 feet Linda Rettershafer 1485 E Wilt St ~113 feet Venice Whitaker 1468 E Wilt St ~185 feet Philip Harter 1813 Memphis St ~98 feet Appellants assert standing for the unincorporated association through these neighbors who are members of the Faithful Laurentians and may be harmed by the ZBA action. STANDING THROUGH MEMBERS WHO APPEARED AT THE ZBA The ZBA does not have any specific procedure in the code or regulations about how an unincorporated association should enter an appearance. Multiple members of the Faithful Laurentians at the ZBA zoning hearing CLEARLY wrote to enter their appearance as a supporter of St Laurentius or St Laurentius Church as protestant or interested party 5. FL MEMBER ADDRESS Appeared for Record Johanna Colfer 2312 E Dauphin St St Laurentius RR#1p28 Carolyn Bechta Devine 1647 E Berks St St Laurentius RR#1p34 Mike Devine 1517 E Berks St St Laurentius RR#1p33 Dave Kim 1340 E Berks St St Laurentius Church RR#1p31 Patricia Kruse 2312 E Dauphin St St Laurentius RR#1p27 Vincent Lipeczynsky 2342 E Dauphin St St Laurentius Church RR#1p48 Virginia Nicholl 2360 Boston St St Laurentius Church RR#1p45 Linda Rettershafer 1485 E Wilt St St Laurentius Church RR#1p46 Christopher Josten 2232 Coral St St Laurentius Church RR#1p42 Ann Seltner 1415 E Wilt St St Laurentius Church RR#1p44 Venice Whitaker 1468 E Wilt St St Laurentius Church RR#1p32 Appellants assert standing for the unincorporated association through these neighbors who are members of the Faithful Laurentians and may be harmed by the ZBA action. 2 The record filed by the zoning board omits the list of 200 neighbors whom the City determined were required to have notice. The record also omits the notice letters. 3 See brief regarding ProvCo Partners, Walton, and Armstead v. Phila. ZBA about deemed standing. 4 The zoning code has been revised to increase the distance to 250, Bill No , effective The zoning code and ZBA regulations do no distinguish between the terms, nor is there any explanation for the difference. The appearance slips rev 3/97 have not been revised for roughly twenty years. 4

5 STANDING THROUGH NEAR NEIGHBORS A google maps plot of the nearest members, Carolyn Bechta Devine, Mike Devine, Philip Harter, Linda Rettershafer, Ann Seltner and Venice Whitaker, is provided below. Appellants assert standing for the unincorporated association through near neighbors who are members of the Faithful Laurentians and may be harmed by the ZBA action. INCOMPLETE RECORD Further denied, because the ZBA record omits documents from individuals who complained that they were prevented or otherwise unable to testify at the hearing. See EXHIBIT B1 Frank Brzozowski letter, EXHIBIT B2 ZBA response. 5

6 4. Denied. Devine entered her appearance before the ZBA, her appearance slip is in the record at RR#1p34. Further denied because the ZBA mailed Devine a Notice - RE:Decision, RR#1p66 6. The ZBA Chairman set the parameters of "participation", directing attendees, not to present duplicate testimony but and instead fill out an appearance form; followed by a direction, to raise your hand and fill out a form; NT 19 MR.[CHAIRMAN] GALLAGHER: 22 if you hear what your opposition is, 23 please try to just take that in consideration. 24 Put it on record with Tanya up here in the front, NT 20 1 and that will be part of the consideration to our 2 decision, okay? NT 28 2 MR.[CHAIRMAN] GALLAGHER: If I may before you 3 speak, can I see how many are in opposition. 4 (Audience members raise hands.) 5 MR. GALLAGHER: If you could put on file 6 with Tanya, just fill out a form. Tanya will 7 show you what to do. We would appreciate that. Devine did not present duplicate testimony about the Faithful Laurentians. Devine did enter an appearance form, as directed. Devine met the parameters of participation as stated or implied by the ZBA Chairman. 5. Denied. Whitaker entered her appearance for herself and listed St. Laurentius Church under the line for interested party. At the November 1, 2016 ZBA zoning hearing Whitaker provided the ZBA with a list of officers and members of the Faithful Laurentians, NT31:14, which indentifies Whitaker and Devine as board members. 6 The ZBA regulations specify that the decision date is the date of mailing, The date on which a decision of the Zoning Board is mailed shall be conclusively presumed to be the date of adjudication, and the time for appeal shall run from that date. ZBA Regulation 7.1 All of the notice forms the ZBA mailed to the public provide the wrong decision date, 11/15/16 (the vote); RR#1:pp None of the notice forms provide the legal decision date, the date of mailing. ZBA envelope postmarked Nov The ZBA waited ten days to send notice. 6

7 RR#4pp2-3. Whitaker handed the information packet about the Faithful Laurentians to the ZBA and then spoke about the mission plan of the Faithful Laurentians and the business plan of the Faithful Laurentians. NT31:22-23 you will see that I formed with the board that we have a mission plan and a business plan. RESPONSE TO COUNT I The Faithful Laurentians and their individual trustees ad litem Whitaker and Devine, established standing. 6. Denied as an incorrect conclusion of law. The City refers to procedural standing under the MPC. This is an appeal under the new Philadelphia zoning code s process which includes a zone of protection and bifurcated zoning hearings with RCO zoning hearings under (12) and ZBA zoning hearings under (14). The 2012 zoning code creates a bifurcated zoning hearing process with two zoning hearings, one is a local-suburban style RCO meeting, the other is the traditional centralized Philly ZBA hearing. In the alternate, denied because the concept of procedural standing presupposes a zoning hearing which is easy to attend. Suburban ZHB hearings are held at night so that neighbors can attend. Philly ZBA zoning hearings are held during the day so that neighbors cannot attend, unless they take a day off from work. Philly RCO zoning hearings are held at night. Suburban ZHB hearings generally hear a single case that night. Philly ZBA zoning hearings generally hear around one hundred cases per day. Philly RCO zoning hearings generally hear one or at most a few cases on a single night. Suburban ZHB hearings are held within the local township or borough, in contrast to a central county government office at the distant county seat. Philly ZBA hearings are held downtown at 1515 Arch, this requires most neighbors to travel rather long distances. Philly RCO zoning hearings are held close by, within the local RCO, Ward or City Council district. Suburban municipal divisions, such as townships and boroughs, (Delaware County for example) are generally comparable in size to Philadelphia s RCO, Wards, or City Council boundaries. 7

8 The size of the areas served by the hearings under the MPC best matches the size of the areas served by the Philly RCO zoning hearing process, and is similar in terms of the time of day of the meeting, the number of cases heard and ability of neighbors to participate. The Philadelphia zoning code does specify which of the two zoning hearings a person must attend to participate 7 in order to preserve their right to appeal. 7. Denied as an incorrect conclusion of law. In the alternate, Denied. The record indicates that the members of the Faithful Laurentians attended both zoning hearings, and filled out appearance forms when such forms were available. Many members are nearby neighbors, and at least four (4) members, including both trustees, are within 200 of the subject property and therefore are deemed to have standing under the zone of protection provisions of the new Philadelphia code, see Walton, ProvCo, & Armstead. The record here reflects that the members of the association were asked by the ZBA chair to avoid testifying if their point was already made ( if you hear what your opposition is ) and to essentially raise their hands and just fill out a form. The record reflects that the forms in question are twenty years old, do not use the terms of the current 7 1. Procedural standing presupposes a clear procedure for entering an appearance. However, because the board provided none of these procedural protections, we hold that the only applicable standing requirement is substantive, i.e., whether protestants are persons aggrieved. Whitehall Inc. v. Allentown Planning Comm., 79 A.3d 720 (Pa. Cmwlth. 2013)(internal edits omitted) 8

9 zoning code or ZBA regulations, and do not provide guidance on what a party needs to write to become a party as an individual or as an association. By way of further answer, this is an appeal under the Local Agency Law, which provides standing to appeal for persons, even if they were not parties below. Rather, standing to appeal administrative decisions extends to persons, including non-parties who have a direct interest in the subject matter, as distinguished from a direct, immediate, and substantial interest. A direct interest requires a showing that the matter complained of caused harm to the person's interest... Malt Beverages v. PLCB 966 A.2d 1188 (Pa. Cmwlth 2009) n10(citing Citizens Against Gambling v. Pa. Gaming Bd., 916 A.2d 624, 628 (Pa 2007). 8. Denied. Devine participated at both hearings; the September 20, 2016 RCO zoning hearing and the November 1, 2016 the ZBA zoning hearing. The appearance statement clearly indicates that Devine enter an appearance for St Laurentius as an interested party. Devine was identified as a trustee in the documents presented to the board. Devine appears to be within the 200 line to be deemed aggrieved as a neighbor. 9. Denied. See 5 supra. Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged. Armstead v. Phila. ZBA 115 A.3d 390 (Pa. Cmwlth. 2015)Pellegrini concurring opinion n.2 Also I would hold that the individual objectors are within the "zone of protection" recognized by the present Philadelphia Zoning Ordinance. Armstead v. Phila. ZBA 115 A.3d 390 (Pa. Cmwlth. 2015)(Pellegrini concurring opinion n.3) 10. Denied as a conclusion of law. 11. Denied. A trustee ad litem is, by definition of Pa.R.C.P. Nos , already a member of the unincorporated association which they are representing. Whitaker and Devine are present in both their personal capacity and as members of the unincorporated association. 9

10 12. Denied. The City only attempts to raise a single issue Count I ; in support of Count 1 the City has either asserted bald conclusions of law; 6,7,10,12 or has asserted a legal conclusion that contradicts the four corners of the document 8,9. Wherefore the City has failed to establish the facts to support the requested relief. Wherefore, the Appellants, The Faithful Laurentians, by their Trustees Ad Litem, Venise Whitaker and Carolyn Devine, respectfully request that the motion to dismiss the unincorporated association known as the Faithful Laurentians be denied. Respectfully submitted, /s Hal Schiremr Esq Hal Schirmer Esq 10