Mulberry Market, Inc. v. City of Philadelphia, Bd. of License & Inspection Review

• Decision Date: 04 August 1999
• Citation: 735 A.2d 761
• Parties: MULBERRY MARKET, INC., Appellant, v. CITY OF PHILADELPHIA, BOARD OF LICENSE & INSPECTION REVIEW & City of Philadelphia, Department of Streets & Licenses & Inspections.
• Court: Pennsylvania Commonwealth Court

735 A.2d 761

MULBERRY MARKET, INC., Appellant, v. CITY OF PHILADELPHIA, BOARD OF LICENSE & INSPECTION REVIEW & City of Philadelphia, Department of Streets & Licenses & Inspections.

Commonwealth Court of Pennsylvania.

Argued March 8, 1999.

Decided August 4, 1999.

Joseph J. Marinaro, Philadelphia, for appellant.

Hugh W. Snyder, Philadelphia, for appellee.

Before KELLEY, J., FLAHERTY, J., and McCLOSKEY, Senior Judge. FLAHERTY, Judge.

Mulberry Market (Mulberry) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which affirmed the order of the Board of License and Inspection Review (Board) that denied Mulberry a permit for maintaining a dumpster on the sidewalk in front of Mulberry's store. We affirm.

Mulberry is a grocery store/delicatessen located at 236 Arch Street in Philadelphia near some historical sites. Since roughly 1980, Mulberry has operated its store and delicatessen at that location and since then has maintained a dumpster on its sidewalk for disposing of trash generated by the Mulberry business.

On June 19, 1989, the City of Philadelphia enacted the Dumpster Ordinance (Ordinance) providing for a comprehensive regulation of dumpsters and requiring all individuals to obtain a license before placing a dumpster on their property. On April 20, 1990, Mulberry applied to the Department of License and Inspection which denied Mulberry's application on April 21, 1991 because the dumpster would be placed in a public right of way. Mulberry appealed to the Board which, following hearings conducted on July 23, 1991, October 29, 1991 and December 1991, denied Mulberry's appeal. Mulberry appealed to the trial court which affirmed the Board without taking any new evidence. The trial court granted Mulberry a supersedeas, permitting Mulberry to maintain the dumpster pending its appeal to this court.

Appellate review over a decision of a local agency where the trial court takes no new evidence is limited to determining whether constitutional rights were violated, an error of law was committed, whether necessary findings of fact are supported by substantial evidence and whether the procedure before the local agency was contrary to statute. 2 Pa.C.S. § 754(b); Livingston v. Doylestown Township, 145 Pa. Cmwlth. 460, 603 A.2d 705 (1992).

The first question which Mulberry presents for our review is whether the grandfathering provisions of the Ordinance require the issuance of a dumpster license to Mulberry. See Mulberry's brief at p. iii. Section 626.2 of the Ordinance, entitled "Existing uses" provides as follows:

All buildings which contain uses which generate refuse, as defined in Section 9-604 of the [Philadelphia] Code, which are on the effective date of this Section, disposed of by use of a dumpster, as defined in Section 9-604 of the Code, shall, where there is sufficient space available on the premises of the building, keep all dumpsters within enclosures constructed in accordance with regulations promulgated by the Department of Licenses and Inspections. In the event that a dumpster is maintained off the building premises on the effective date of this Section, such dumpster shall not be enclosed and may be so maintained provided that there is no change in use of the building for which the dumpster is employed and for so long as it is placed and maintained, in accordance with the provisions of Section 9-604 of the Code.

(emphasis added). Mulberry contends that the underlined language of the Ordinance is a grandfather clause which is subject to only one interpretation, namely that "dumpsters maintained off the building premises in use before the effective date of this section (June 19, 1989) are permitted to remain so long as there is no change in the building use and the dumpster is maintained in accordance with the provisions of § 9-604." Mulberry's brief at pp. 11-12. Because its dumpster was in place well before June 19, 1989 and is maintained in accordance with the provisions of § 9-604, Mulberry claims that the plain terms of the Ordinance require the issuance of a dumpster license to Mulberry.

In rejecting this contention of Mulberry, the trial court reasoned that

[b]asically a grandfather clause in new legislation operates to exempt from compliance with that legislation those who engaged in the conduct to which the legislation applies prior to its adoption. However the prior conduct must have been legal before the promulgation of the new legislation. State Board of Funeral Directors v. L. Beinhauer & Son Co., 23 Pa.Cmwlth. 106, 350 A.2d 453, 456 vacated on other grounds, 477 Pa. 571, 385 A.2d 342 (1978).

Here, Appellant's [Mulberry's] placement of the dumpster on the sidewalk was always illegal. Prior to the enactment of the Ordinance, the Code specifically prohibited the placement of a dumpster on a sidewalk or other right of way. Therefore, Appellant's conduct prior to enactment of the Ordinance was illegal and the Board was correct in holding that a grandfather clause was not applicable to this case and that § 626.2 of the Ordinance does not permit Appellant to maintain its dumpster in its current location.

Trial court slip op. at p. 4.

Mulberry asserts that the trial court cited Beinhauer for the proposition that in order for a grandfather clause to operate to exempt compliance with the legislation for those who conducted business prior to the adoption of the legislation, the prior conduct must have been legal before the promulgation of the new legislation. Mulberry argues that this is not the holding of Beinhauer. Even if this is not the holding of Beinhauer, it is still a correct statement of the law and Mulberry does not argue otherwise. See, e.g., Commonwealth v. Petry, 81 Pa.Super. 27 (1923), cert denied, 263 U.S. 704, 44 S.Ct. 33, 68 L.Ed. 515 (1923); Service Electric Cable T.V. Inc. v. Township of Allen, 127 Pa.Cmwlth. 306, 561 A.2d 847 (1989), allocatur denied, 525 Pa. 609, 575 A.2d 573 (1990); 4 A.L.R.2d 667.

Mulberry does argue that the trial court erred in holding that the grandfather clause of the Ordinance does not authorize the grant of a license to Mulberry. Mulberry argues that the Ordinance specifically contemplates the licensing of dumpsters despite the fact that dumpsters placed in the public right of way were not previously specifically authorized by any Philadelphia ordinance. Mulberry points to, inter alia, the preamble of the Ordinance which provides that "[a]lthough not authorized by Ordinance of the City of Philadelphia, the placement of dumpsters on the cartways or roadways, sidewalks and alleyways of the City by or on behalf of commercial enterprises has become a commonplace reality of urban life...." Mulberry argues that Philadelphia's intention in enacting the grandfather clause was to eventually eliminate dumpsters on public sidewalks by attrition and that all dumpsters currently in place should be allowed to continue by grant of license so long as they are maintained in a clean and sanitary manner as Mulberry's dumpster is. Mulberry is not arguing that its initial placement of the dumpster on the public sidewalk was legal at the time. Rather, Mulberry argues that a proper interpretation of the Ordinance leads to the conclusion that it was the intention of the drafters that even those dumpsters illegally placed prior to the enactment of the Ordinance would be required to be granted a license so long as the dumpster was being maintained in a sanitary and clean condition.

In response, the City of Philadelphia echoes the trial court's reasoning and adds that Mulberry's reading of the Ordinance is erroneous. Philadelphia argues that

[p]rior to the enactment of the Dumpster Ordinance, no person had the right to place a dumpster upon the sidewalk for storage of trash or garbage. This is made clear in the first line of the ordinance:

"[W]hereas, Although not authorized by the Ordinance of the City of Philadelphia, the placement of dumpsters on the .... (emphasis added)

The Streets Code has specifically prohibited placement of dumpsters on the street. § 11-602(1) of the Philadelphia Code states that "[n]o structure, fixture, excavation, obstruction, or projection shall be erected or maintained over, on, in or under any street except in accordance with the provisions of this Chapter." Since dumpsters constitute both structures and obstructions, it has been illegal, absent express permission of the City, to place one upon the street.

Philadelphia's brief at p. 9. We agree with the trial court and Philadelphia that § 6-626.2 of the Ordinance, the so-called grandfather clause only permits the licensing of dumpsters which are placed on public sidewalks where the placement of those dumpsters was legal immediately prior to the enactment of the Ordinance. The plain language of § 6-626.2 provides that such pre-existing dumpsters may remain "so long as it is placed and maintained in accordance with the provisions of Section 9-604 of the Code." (emphasis added). While Mulberry asserts that it has maintained the dumpster in accordance with the provisions of Section 9-604 of the Code, Mulberry has not argued and indeed cannot argue that the dumpster was placed in accordance with the provisions of Section 9-604. As Philadelphia points out, Section 9-604 prohibits a hauler of garbage from placing a dumpster on a street unless the user possesses a license authorizing such a location. Here, Mulberry does not assert that it possessed such a license at some time prior to the enactment of the Ordinance that would have rendered its placement of the dumpster on a public sidewalk legal prior to the enactment of the Ordinance. As Mulberry's placement of the dumpster on the public sidewalk was not legal at the time of the enactment of the Ordinance, the grandfather clause of the Ordinance does not mandate that Mulberry be granted a license for its dumpster. Thus, we reject Mulberry's interpretation of the Ordinance as requiring a license be issued...