Nw. Wissahickon Conservancy, Inc. v. Phila. City Planning Comm'n

• Decision Date: 05 March 2013
• Citation: 64 A.3d 1135
• Parties: NORTHWEST WISSAHICKON CONSERVANCY, INC. and North Chestnut Hill Neighbors, Inc., Appellants v. PHILADELPHIA CITY PLANNING COMMISSIONand Chestnut Hill College.
• Court: Pennsylvania Commonwealth Court

64 A.3d 1135

NORTHWEST WISSAHICKON CONSERVANCY, INC. and North Chestnut Hill Neighbors, Inc., Appellants

v.PHILADELPHIA CITY PLANNING COMMISSIONand Chestnut Hill College.

Commonwealth Court of Pennsylvania.

Argued Feb. 11, 2013.

Decided March 5, 2013.

Henry L. Schirmer, Telford, for Appellants.

Jonathan S. Goldman and Peter F. Kelsen, Philadelphia, for appellee Chestnut Hill College.

Andrew S. Ross, Philadelphia, for appellee Philadelphia City Planning Commission.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Senior Judge JAMES GARDNER COLINS.

These are consolidated appeals from orders of the Philadelphia County Court of Common Pleas dismissing two statutory appeals filed by appellants Northwest Wissahickon Conservancy, Inc. and North Chestnut Hill Neighbors, Inc. (Objectors) from approvals by the City of Philadelphia Planning Commission (Planning Commission) with respect to a Master Plan and Institutional Development District under Chapter 14–1100 of the Philadelphia Zoning Code (Zoning Code) in effect at the time.¹ Because the Court of Common Pleas correctly concluded that the Planning Commission approvals here are not appealable acts, we affirm.

Prior to 2011, Chestnut Hill College (College) purchased an adjacent property known as “Sugarloaf.” On March 11, 2011, in accordance with Zoning Code § 14–1107(a), the College submitted to the Planning Commission a Master Plan for expansion of its campus and for rezoning its campus, including the Sugarloaf property, as an Institutional Development District. Objectors, organizations whose members live near the Sugarloaf property, opposed the College's Master Plan.

The Planning Commission is a City commission created by Section 3–800 of the Philadelphia Home Rule Charter (Home Rule Charter). Section 4–604 of the Home Rule Charter provides:

The City Planning Commission shall make recommendations, to be transmitted to the Council through the Mayor, on all bills originating in the Council which shall in any manner affect any zoning ordinance, the Physical Development Plan of the City, or the capital program, or which would authorize the acquisition or sale of City real estate. Unless such recommendations are received by the Council within 30 days from the date any such bill shall have been introduced, the approval of the Commission shall be presumed.

Home Rule Charter § 4–604 (emphasis added). Section 14–1107 of the Zoning Code provides:

(a) No institutional development district shall be established unless at the time of the introduction of the ordinance therefor, the said ordinance is accompanied by a Development Plan as specified below, containing a recommendation from the City Planning Commission with respect to the layout of the entire area, and a recommendation from the Department of Streets with respect to the traffic pattern plan, parking plan, and driveways.

Zoning Code § 14–1107(a) (emphasis added).

On April 19, 2011, the Planning Commission approved the College's Master Plan and submitted that approval to City Council. On April 28, 2011, Bill No. 110302, a proposed ordinance adopting the Master Plan as an Institutional Development District, was introduced in City Council. On May 17, 2011, the Planning Commission approved Bill No. 110377, another proposed ordinance that amended various sections of the Zoning Code with respect to the College's Master Plan and Institutional Development District, and submitted that approval to City Council. City Council passed Bills Nos. 110302 and 110377 on June 16, 2011, and on June 22, 2011, the Mayor signed both ordinances into law.

On May 16, 2011, Objectors filed the first of the two statutory appeals at issue here, a Notice of Appeal in the Court of Common Pleas docketed at May Term 2011 No. 1780 (the May Appeal). The May Appeal appealed “from the decision of the Philadelphia Planning Commission made on April 19, 2011 to approve a Master Plan and submit it to City Council.” (May Appeal Notice of Appeal.) On June 16, 2011, Objectors filed the second of these two statutory appeals, a Notice of Appeal in the Court of Common Pleas docketed at June Term 2011 No. 1258 (the June Appeal). The June Appeal appealed “from the decision of the Philadelphia Planning Commission of May 17, 2011 to approve and submit Zoning Bill No. 110377 to City Council.” (June Appeal Notice of Appeal.) In the two appeals, Objectors sought to challenge the Planning Commission's approvals on the grounds that the Master Plan and proposed ordinance allegedly violate storm water controls governing the Wissahickon Watershed area and allegedly provide inadequate storm water mitigation measures. (Objectors' Memorandum of Law in Opposition to City's Motion to Quash May Appeal at 6–7, 13–14.) In June 2011, the College filed praecipes to intervene in both proceedings.

In November 2011, the City ² and the College filed motions to quash both appeals on the ground that the Planning Commission's actions were not appealable because they were recommendations, not adjudications. On February 7, 2012, following briefing and oral argument, the Court of Common Pleas granted the motions to quash both appeals. On March 2 and 3, 2012, Objectors timely filed the instant appeals to this Court.

The only issue before us in this appeal is whether the Planning Commission's approvals of the College's Master Plan and proposed ordinance amending the Zoning Code are decisions that are appealable to a court of common pleas. Because the question of whether a court has subject matter jurisdiction is a question of law, our standard of review is de novo and the scope of our review is plenary. Mazur v. Trinity Area School District, 599 Pa. 232, 240, 961 A.2d 96, 101 (2008).

The Planning Commission's approvals can be appealable under the Local Agency Law only if they are “adjudications.” 2 Pa.C.S. § 752; Mazur, 599 Pa. at 246, 961 A.2d at 104–05;Ondek v. Allegheny County Council, 860 A.2d 644, 648–49 (Pa.Cmwlth.2004). Section 752 of the Local Agency Law provides:

Any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).

2 Pa.C.S. § 752 (emphasis added). To constitute an “adjudication” under the Local Agency Law, the government action must be a “ final order, decree, decision, determination or ruling by an agency affectingpersonal or property rights, privileges, immunities, duties, liabilities or obligations....” 2 Pa.C.S. § 101 (emphasis added); Ondek, 860 A.2d at 648 (quoting 2 Pa.C.S. § 101) (emphasis added).

A decision of a planning commission that is the final action on an application or permit can be an agency adjudication appealable under the Local Agency Law. Riverlife Task Force v. Planning Commission of the City of Pittsburgh, 600 Pa. 378, 966 A.2d 551 (2009) (planning commission approval of project development plan application that was the final action on that application was appealable decision); Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 742 A.2d 247 (Pa.Cmwlth.1999), aff'd,569 Pa. 147, 801 A.2d 492 (2002) (Planning Commission approval of Master Plan modification without referral to City Council was appealable).

It is well established, however, that a planning commission approval or recommendation is not an adjudication and therefore is not appealable under the Local Agency Law, where the planning commission's action is not the final ruling on the matter and approval of the city council is required before the project can proceed. In re Condemnation by the Urban Redevelopment Authority of Pittsburgh, 527 Pa. 550, 556–558, 594 A.2d 1375, 1378 (1991) (planning commission's certification of blight did not constitute an adjudication under the Local Agency Law because it was “a preliminary or advisory matter” that “does not, in and of itself, have a legal effect on property rights” where further action of other government agencies was necessary before property rights were affected) (emphasis in original); City Council of the City of Pittsburgh v. City of Pittsburgh, 155 Pa.Cmwlth. 328, 625 A.2d 138, 143–44 (1993), appeal granted but subsequently discontinued,540 Pa. 642, 659 A.2d 560 (1995) (action of planning commission on conditional use application is not adjudication appealable under the Local Agency Law because city council must approve or deny the application); In re City of Scranton, 132 Pa.Cmwlth. 175, 572 A.2d 250, 253 (1990) (planning commission certification of blight is not adjudication under the Local Agency Law because it has no effect on rights without further actions by redevelopment authority and city council); Allegheny West Civic Council v. City Planning Commission of the City of Pittsburgh, 80 Pa.Cmwlth. 64, 470 A.2d 1122, 1123 (1984) (planning commission recommendation that city council approve conditional use application is not adjudication appealable under the Local Agency Law because conditional use application must be approved by city council).

Here, the Planning Commission's approvals of the Master Plan and Bill No. 110377 were recommendations, not final approvals. Home Rule Charter §§ 2–307, 4–601, 4–604 (Planning Commission role in enactment of ordinances affecting zoning is to prepare and submit proposed ordinances to City Council and to provide recommendations to City Council); Zoning Code § 14–1107(a) (Planning Commission makes recommendations with respect to establishment of Institutional Development Districts). City Council's enactment of ordinances was required to establish the Institutional Development District set forth in the Master Plan and to amend the Zoning Code to allow it to proceed. Zoning Code § 14–1107 (Institutional Development Districts must be established by ordinance and all modifications must be approved by City Council); Home Rule...