         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of Amit Azoulay,         :
Idit Azoulay and Assaf Lavon,          :
                  Appellants           :
                                       :
            v.                         :
                                       :
Philadelphia Zoning Board of           :
Adjustment and City of Philadelphia    :
and Hillcrest Preservation Alliance,   :   No. 1085 C.D. 2017
LLC, and Friends of The Wissahickon    :   Argued: June 4, 2018
                                       :
                                       :
                                       :
In Re: Appeal of Amit Azoulay,         :
Idit Azoulay and Assaf Lavon           :
                                       :
            v.                         :
                                       :
Zoning Board of Adjustment             :
                                       :
In Re: Appeal of Hillcrest             :
Preservation Alliance, LLC             :
                                       :
            v.                         :
                                       :
Zoning Board of Adjustment             :
                                       :
Appeal of: Hillcrest Preservation      :   No. 1177 C.D. 2017
Alliance, LLC                          :   Argued: June 4, 2018


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION
BY JUDGE FIZZANO CANNON                    FILED: September 7, 2018
             This matter involves consolidated appeals from the July 7, 2017 order
of the Court of Common Pleas of Philadelphia County (trial court) affirming the
decision of the City of Philadelphia’s (City) Zoning Board of Adjustment (ZBA)
which: (i) upheld the issuance of a subdivision permit which approved a lot line
adjustment resulting in the division of one lot into two lots; (ii) denied an objector’s
request to amend its appeal to include a challenge to the zoning permit issued for the
second lot resulting from the subdivision; and (iii) sustained an objector’s appeal to
the zoning permit issued for the other lot.
             Amit Azoulay, Idit Azoulay and Assaf Lavon (collectively, Owners)
own property located in the City’s Chestnut Hill neighborhood. ZBA’s Findings of
Fact (F.F.) No. 7.     The property is zoned RSD-1 (Residential Single-Family
Detached-1) and is located entirely within the Wissahickon Watershed Overlay
District (WWOD). F.F. No. 8. The property has never been developed. See F.F.
No. 9.
             Owners sought to subdivide the property, originally known as 114
Hillcrest Avenue, into two lots. On May 31, 2013, the City’s Department of
Licenses & Inspections (L&I) issued Zoning Permit No. 473255 approving “the
relocation of lot lines to create (2) lots from (1) lot (114 Hillcrest Ave.)” (Subdivision
Permit). F.F. No. 1. The newly created lots are known as 114 Hillcrest Avenue and
116 Hillcrest Avenue. See F.F. No. 2.
             Owners then also applied to L&I for permits for “zoning approval for
the erection of detached structure with cellar” and creation of interior off-street
parking spaces and “use registration for single family dwelling” on each of the newly
created lots. Reproduced Record (R.R.) at 65a-66a; see F.F. No. 2. Because the lots
are located within the WWOD near a “surface water body,” the WWOD’s


                                            2
impervious coverage rule was relevant to the permit applications. At the time
relevant here, the impervious coverage rule provided, “[t]here shall be no new
impervious ground cover constructed or erected within 200 ft. of the bank of a
surface water body or within 50 ft. of the center line of a swale within the [WWOD].”
Phila., Pa., Zoning Code § 14-510(5) (2016) (Zoning Code).1 (Section 510 of the
Zoning Code, § 14-510, concerns the Wissahickon Watershed Overlay District and
sometimes may be referred to herein as the WWOD Ordinance.)
               The City’s Zoning Code provides that before L&I can issue any zoning
or building permits for development in the WWOD, the City’s Planning Commission
must certify that the proposed development conforms to the requirements of the
WWOD Ordinance.             Zoning Code § 14-510(8).              The Planning Commission
approved Owners’ plans, and subsequently, on June 17, 2013, L&I issued Owners
two “zoning/use permit[s]” for the property, one for each of the newly created lots,
pursuant to Owners’ application.2 R.R. at 65a-66a; see F.F. No. 2. The zoning/use



       1
        We note this definition in the Zoning Code was amended after the parties appealed to this
Court. See Phila., Pa., City Council Bill No. 180346-A § 14-510(5) (July 18, 2018). The Zoning
Code now provides,

       There shall be no new impervious ground cover constructed or erected within 200
       ft. of the bank of a stream or within 50 ft. of the center line of a swale within the
       [WWOD]. Streams and [s]wales that have been buried in sewer pipe, or in an
       artificial, concrete and stone channel, shall be excluded.

Zoning Code § 14-510(5) (amendments in italics). This amendment was not made retroactive.
See City Council Bill No. 180346-A § 2 (stating “[t]his [o]rdinance shall take effect immediately”);
cf. Section 1926 of the Statutory Construction Act of 1972 (stating no statute shall be construed to
be retroactive unless clearly and manifestly intended by the General Assembly). Therefore, we
must apply the Zoning Code as written at the time of Owners’ permit applications.
       2
         The permits stated that they do not authorize any construction until related construction
permits are issued. R.R. at 65a-66a.

                                                 3
permits were Permit No. 476557 (114 Permit) and Permit No. 476558 (116 Permit).
F.F. No. 2.
              On June 27, 2013, the Hillcrest Preservation Alliance, LLC (Objector)
filed a timely appeal challenging L&I’s issuance of the Subdivision Permit and the
114 Permit.3 F.F. No. 3. The ZBA held four public hearings on the appeal. See F.F.
No. 4. At the first hearing, which was held on February 5, 2014, the issue arose as
to whether Objector appealed the 116 Permit. See F.F. Nos. 15-17. On February
26, 2014, Objector’s counsel submitted an amended appeal that included the 116
Permit. The ZBA reserved decision on the amended appeal. The ZBA held
additional public hearings on the appeal on March 25, 2015, April 29, 2015, and July
8, 2015. F.F. No. 4. Subsequently, the ZBA issued a decision in which it: (i) denied
Objector’s appeal of the Subdivision Permit; (ii) denied Objector’s request to amend
its appeal to include the 116 Permit; and (iii) sustained Objector’s appeal of the 114
Permit, concluding that the Planning Commission erred in treating the proposed
development as permitted due to the inclusion of green elements and that such
interpretation disregards the plain language of the WWOD Ordinance and allows for
the introduction of new impervious elements within the 200-foot setback. F.F. No.
6, see Conclusions of Law (C.L.) No. 23.
              Owners and Objector filed cross-appeals from the ZBA’s decision with
the trial court, which consolidated the appeals. Owners, Objector and the City filed
briefs, and the trial court heard oral arguments. Objector challenged the ZBA’s
denial of Objector’s appeal of the Subdivision Permit and the ZBA’s denial of
Objector’s request to amend its appeal to include the 116 Permit. Owners and the



       3
        Objector consists of “a group of concerned neighbors” and was formed a few days before
the appeal was filed. F.F. No. 13.
                                              4
City challenged the ZBA’s invalidation of the 114 Permit. Subsequently, the trial
court issued an order affirming all three determinations of the ZBA.
               Both Owners and Objector filed appeals with this Court, which are
consolidated for disposition.4 9/27/17 Order.             On appeal, the parties raise the
following issues: (i) whether the ZBA erred when it denied Objector’s appeal from
the Subdivision Permit and upheld the issuance of the Subdivision Permit; (ii)
whether the ZBA erred when it refused to allow Objector to amend its notice of
appeal to include the 116 Permit; and (iii) whether the ZBA erred in sustaining
Objector’s appeal and concluding that the 114 Permit was erroneously issued. With
respect to the final issue, we are asked to decide whether the ZBA was required to
give deference to the Planning Commission’s initial determination that there was no
new impervious ground cover or, its later claim at the hearing, that the proposed
development was not located within the 200-foot setback.5




       4
         Where, as here, the trial court does not take additional evidence, this Court’s review is
limited to determining whether the zoning board committed an error of law or an abuse of
discretion. See Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa.
1983). A zoning board abuses its discretion “only if its findings are not supported by substantial
evidence.” Id. at 640. Substantial evidence is such evidence a reasonable mind might accept as
adequate to support a conclusion. Id.
       5
         The City, although an appellee here, has filed a brief in support of Owners’ (designated
appellants) position with respect to the 114 Permit only. See Pa.R.A.P. 908 (providing rules for
appellees who support the appellants’ position). The City does not take a position on the other two
issues.
        The ZBA and the Friends of the Wissahickon were precluded from filing briefs and
participating in oral argument due to their failure to file briefs as ordered by this Court. 3/7/18
Order.




                                                5
               I.     Subdivision Permit
               Objector argues that the ZBA erred when it denied Objector’s appeal
from the issuance of the Subdivision Permit. Objector maintains that the subdivision
did not comply with the WWOD Ordinance’s requirements concerning the 200-foot
setback from watercourses, which Objector contends is a dimensional requirement
akin to a front, side or rear yard setback.
               On May 31, 2013, L&I issued Zoning Permit No. 473255 approving
“the relocation of lot lines to create (2) lots from (1) lot[.]” F.F. No. 1. A lot
adjustment is “[a] subdivision[6] that results in the creation of new lots that all have
street frontage on an existing legally open street shown on the City Plan; or the
relocation of existing lot lines, including the combination of existing lots into fewer
or differently configured lots.”           Zoning Code § 14-203(170).               The Planning
Commission has the authority to provide prerequisite approvals for zoning permits
regarding lot adjustments. Zoning Code § 14-301(3)(c)(.1)(.a). The Planning
Commission shall approve the lot adjustment if it complies with the lot dimension
and street frontage requirements in the Code. Zoning Code § 14-304(6)(c).
               Notably, the WWOD Ordinance provisions only apply “during and
after construction and to all construction site clearing and earth moving within the


      6
          The Zoning Code defines subdivision as:

               A division of any part, lot, or area of land by the owner or his or her
               agent into two or more lots, or changes in existing lot lines, for the
               purpose of conveyance, transfer, improvement, or sale with or
               without appurtenant roads, streets, lanes, driveways, and ways
               dedicated or intended to be dedicated to public use, or the use of
               purchasers or owners of lots fronting on them. The term subdivision
               includes re-subdivision and, as appropriate, shall refer to the process
               of subdividing land or to the land so subdivided.

Zoning Code § 14-203(328).
                                                 6
Wissahickon Watershed.” Zoning Code § 14-510(2). The subdivision, or lot
adjustment, involves only the adjustment of lot lines and does not involve
construction, site clearing or earth moving. The 200-foot setback is not applicable
to the Subdivision Permit because no buildings or any other type of “impervious
ground cover” was proposed as part of that application. Therefore, the ZBA did not
err when it concluded that the WWOD Ordinance provisions were not applicable to
Owners’ subdivision application. Accordingly, the trial court did not err when it
affirmed the ZBA’s decision denying Objector’s appeal of the issuance of the
Subdivision Permit.

             II.    Application to Amend Appeal
             Objector argues that the ZBA erred by refusing to allow Objector to
amend its appeal. Objector acknowledges that it did not initially appeal the 116
Permit at the same time it appealed the Subdivision Permit and the 114 Permit,
explaining that the 116 Hillcrest Avenue property was never posted with the permit.
Objector’s Brief at 54-55. Objector maintains that there is no evidence in the record
to establish a conspicuous posting of all three permits, asserting there is not a single
picture showing separate postings at the property. Objector further argues that the
ZBA erred in construing its request to amend its appeal as the institution of a new
appeal. Objector asserts that its Application for Appeal referenced all permits for
both lots, and points to its statement in its initial appeal that “[Owners] propose[] to
create two lots from one lot, which is identified as 114 Hillcrest Avenue (the
“Subject Property”), for the purpose of developing two (2) single-family detached
structures” to support its claim that its request was simply a clarification of an
existing action, not a new action. Objector’s Brief at 58. Objector also asserts that
Owners were not prejudiced by Objector’s request to amend, pointing out that the

                                           7
ZBA reserved ruling on Objector’s application and that Owners presented evidence
on both parcels at the hearings.7
              The Code provides:

              Within five (5) business days of receipt of any permit
              under this Zoning Code, including any conditional zoning
              permit, the permit holder shall post a true copy of the
              permit on the subject property, along each street frontage
              (unless impractical) in a place and manner conspicuous to
              the public, for no less than thirty (30) days.

Zoning Code § 14-303(6)(f)(.1). The Zoning Code further provides:

              Any appeal of an L&I decision must be filed with the
              Zoning Board within 30 days of the date of L&I’s
              decision. Where the applicant fails to post the permit in
              compliance with § 14-303(6)(f) (Posting of Permits), any
              person other than the applicant must file any appeal within
              30 days of constructive notice of the L&I decision. All
              appeals must be filed through a written notice of appeal
              stating specifically how L&I’s decision is inconsistent
              with the requirements of this Zoning Code or the basis for
              the requested variance or other relief.

Zoning Code § 14-303(15)(a)(.3).

              The ZBA received evidence from Owners regarding the posting of the
permits. See F.F. Nos. 37-38. The evidence included photographs as well as
testimony. Id. The fact that we may not be able to see the writing on the photographs
of the postings in the record does not mean there is not substantial evidence. The

       7
         In support of its argument, Objector cites provisions of the Pennsylvania Municipalities
Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202,
and case law interpreting the MPC. The MPC, however, is not applicable to zoning in the City.
Society Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of Phila., 729 A.2d 117, 120
(Pa. Cmwlth. 1999).
                                               8
ZBA credited Owners’ evidence, including their testimony regarding posting the
permits on the properties, and concluded that Owners established that they fully
complied with the posting requirements of the Zoning Code. C.L. No. 3. It is well-
settled that the ZBA is the arbiter of credibility. Manayunk Neighborhood Council
v. Zoning Bd. of Adjustment, 815 A.2d 652, 658 (Pa. Cmwlth. 2002). This Court
may not alter those findings.
             Because Owners properly posted the permits on the property, Objector
was required to file its appeal within 30 days of the issuance of the permits. See
Zoning Code § 14-303(15)(a)(.3). Objector failed to do so. Whether Owners were
prejudiced is irrelevant; the Zoning Code provides no such exception for one’s
failure to file a timely appeal. Objector admitted that its initial Application for
Appeal referenced permit number 473255 (Subdivision Permit) and permit number
476557 (114 Permit) but did not expressly reference permit number 476558 (116
Permit). R.R. at 148a. Objector’s reference in the text of the appeal to the
development of “two single family homes” at 114 Hillcrest Avenue does not
constitute filing an appeal of the 116 Permit. Additionally, we note that at the first
hearing, Objector’s counsel described the Application for Appeal as being filed
within the 30 days “from the issuance of the two [p]ermits at issue in the case here
today, which were issued on May 31, 2013, and June 17, 2013.” R.R. at 276a
(emphasis added). Therefore, we conclude that the ZBA did not err or abuse its
discretion by determining that Objector’s request was a new appeal rather than a
simple amendment and denying Objector’s request to amend its appeal.

             III. 114 Permit
             The arguments with respect to the 114 Permit center around the
WWOD Ordinance’s impervious coverage rule. Again, at the relevant time, the

                                          9
impervious coverage rule provided, “[t]here shall be no new impervious ground
cover constructed or erected within 200 ft. of the bank of a surface water body or
within 50 ft. of the center line of a swale within the [WWOD].” Zoning Code § 14-
510(5). The Planning Commission approved the plans for construction of the single
family home based on its determination that the proposed development was not
impervious because it included green elements, such as a green roof8 and porous
paving. See F.F. Nos. 26(iii)-27, 31, 55; C.L. No. 23. L&I subsequently issued the
zoning permits, and Objector appealed the 114 Permit.
               After the hearings, the ZBA issued its decision sustaining Objector’s
appeal of the 114 Permit. The ZBA concluded that the proposed development
includes impervious ground cover within the 200-foot buffer. C.L. No. 18. The
ZBA concluded that the Planning Commission erred in treating the proposed
development as permitted due to the inclusion of green elements because such
interpretation disregards the plain language of the ordinance and allows for the
introduction of new impervious coverage within the 200-foot setback. C.L. No. 23.
The trial court affirmed the ZBA on this issue.



       8
          At the time of Owners’ permit application and the hearings in this matter, the Zoning
Code did not contain a definition of green roof. A green roof has been commonly defined as
follows: (i) “[a] roof covered with vegetation, especially one intended to provide environmental
benefits.”            “green        roof,”     English:     Oxford        Living     Dictionaries,
https://en.oxforddictionaries.com/definition/us/green_roof (last visited Aug. 16, 2018); (ii) “[a]
roof of a building that is partially or completely covered with vegetation and a growing medium,
planted over a waterproofing membrane. It may also include additional layers such as a root barrier
and      drainage      and       irrigation    systems.”          Green       roof,    Wikipedia,
https://en.wikipedia.org/wiki/Green_roof (last visited Aug. 16, 2018). The Zoning Code currently
defines green roof as “[a] treatment to a rooftop that supports living vegetation and includes a
synthetic, high quality waterproof membrane, drainage layer, root barrier, soil layer, and
vegetation layer.” Zoning Code § 14-203(138.2), added by Phila., Pa., City Council Bill No.
150745-A (Dec. 23, 2015).

                                               10
              Before this Court, Owners and the City argue that the trial court erred
in affirming the ZBA’s decision sustaining Objector’s appeal of the issuance of the
114 Permit. They argue that the issuance of the permit was proper on either of two
grounds: (i) that there was no new impervious coverage proposed or (ii) if there was
impervious coverage, it would not be constructed within 200 feet of a surface water
body. They argue that the ZBA erred because it should have given deference to the
Planning Commission’s determination that the plans complied with the WWOD
Ordinance. They maintain that the Planning Commission’s interpretation of the
WWOD Ordinance is entitled to deference because, according to Owners and the
City, the Planning Commission is charged with interpreting and enforcing the
WWOD Ordinance and because the Planning Commission’s interpretation was
reasonable. In support of their position, they rely primarily on this Court’s decision
in Turchi v. Philadelphia Board of License and Inspection Review, 20 A.3d 586 (Pa.
Cmwlth. 2011), in which this Court held that, on appeal to the Philadelphia Board
of License and Inspection Review (Review Board) from the Philadelphia Historical
Commission’s (Historical Commission) issuance of a permit, the Review Board had
to give deference to the Historical Commission’s interpretation of operative terms
in the City’s Historic Preservation Ordinance.9 We held that deference was proper,
in part, because the Historical Commission had the policy-making role and was
charged with administering the ordinance, whereas the Review Board had quasi-
judicial review authority, and because the Historical Commission possessed greater
expertise in the area of historic preservation. Id. at 593-95.
       9
           In Turchi, the Historical Commission determined that the applicants’ proposed
renovations were not a “demolition in significant part” and, therefore, the project was an
“alteration” and was “appropriate” under the Historic Preservation Ordinance. Turchi, 20 A.3d at
589. The Review Board disagreed with the Historical Commission’s interpretation of those terms
contained in the ordinance and reversed the Historical Commission. Id. We held that was error.
Id. at 594.
                                              11
             Courts give “substantial deference to an agency’s interpretation of a
statute the agency is charged with implementing and enforcing.” Schuylkill Twp. v.
Pa. Builders Ass’n, 7 A.3d 249, 253 (Pa. 2010) (internal quotation marks omitted);
see also Turchi (stating an agency’s construction of its own regulations is entitled to
deference). “[A]n administrative agency’s interpretation of the statute it is charged
to administer is entitled to deference on appellate review absent fraud, bad faith,
abuse of discretion[] or clearly arbitrary action.” Turchi, 20 A.3d at 591 (internal
quotation marks omitted). Interpretations of an ordinance that are entitled to
deference “become of controlling weight unless they are plainly erroneous or
inconsistent” with the ordinance. Id. at 594 (internal punctuation omitted); see
Lancaster Cty. v. Pa. Labor Relations Bd., 94 A.3d 979, 986 (Pa. 2014) (stating that
an administrative agency’s interpretation is to be given controlling weight unless
clearly erroneous). “However, when an administrative agency’s interpretation is
inconsistent with the statute itself, or when the statute is unambiguous, such
administrative interpretation carries little weight.” Id.
             The WWOD is an overlay district in the Zoning Code. Zoning Code §
14-510. L&I is charged with the power and duty to administer and enforce the
Zoning Code except where any powers are specifically granted to another
commission under the Zoning Code. Zoning Code § 14-103(3)(a). We recognize
that under the Zoning Code, the Planning Commission has the authority to provide
“prerequisite approval” for zoning permits in the WWOD. See Zoning Code § 14-
301(3)(c)(.1)(.h). Additionally, L&I may not issue any permits in the WWOD until
the Planning Commission has “certified” to L&I that the proposed development
conforms to the requirements of the WWOD Ordinance. Zoning Code § 14-510(8).
Nonetheless, even if we were to conclude that the Planning Commission is charged


                                          12
with implementing and enforcing the WWOD Ordinance and possesses a special
expertise warranting deference to its interpretations under Turchi, the Planning
Commission’s interpretations here are not entitled to deference because, as will be
explained: (i) its decision to allow development within the 200-foot setback due to
the incorporation of green elements is plainly erroneous and inconsistent with the
plain language of the ordinance which prohibits any new impervious ground cover
within the 200-foot setback; and (ii) its review of the plan with respect to the 200-
foot setback was inconsistent and arbitrary.

             a. Impervious Ground Cover
             Here, the Planning Commission approved the plans for construction of
the single-family home based on its conclusion that the proposed development was
not new impervious ground cover because it included green elements, such as a
green roof and porous paving. Owners and the City argue that the ZBA erred by not
giving deference to the Planning Commission’s determination that there was no
impervious ground cover. Owners and the City contend that the ZBA failed to defer
to the Planning Commission’s definition of “impervious ground cover,” under which
green roofs, porous paving and other permeable surfaces are not impervious. City’s
Brief at 19; see Owners’ Brief at 12. In support of this argument, the City cites to
an apparently repealed regulation concerning a “2.6 inch rule.” City’s Brief at 20.
The City states that the Planning Commission

             had to interpret “impervious ground cover” in order to be
             able to apply the watershed ordinance. To do so, the
             Planning Commission adopted in 1976 a numerical
             standard: effectively, as long as a surface can absorb at
             least 2.6 inches of rain without runoff, it is not
             ‘impervious.’


                                         13
City’s Brief at 20 (emphasis added).10 Meanwhile, Owners contend that a Planning
Commission representative clearly stated that “if a project manages 2.64 inches per
hour, the [Planning Commission] will consider that project ‘pervious’ which is the
determination made for the Hillcrest Development” and that this standard is based
on consultation with the Water Department. Owners’ Brief at 46-47 (citing Chiu’s
testimony at R.R. at 666a & 684a) (emphasis added); see also Owners’ Brief at 12-
13. While Owners and the City cite different sources, their argument is essentially
the same, i.e., they maintain that the Planning Commission has an infiltration
requirement (which we will refer to as the 2.64 inch rule) and that the Planning
Commission applies this to decide what is “impervious” under the WWOD
Ordinance.      They contend the ZBA erred in not giving deference to this
interpretation of “impervious” and to the Planning Commission’s determination that
the plan did not introduce any new impervious ground cover.
              At the first hearing, held February 5, 2014, the City presented the
testimony of William Kramer, Director of the Planning Commission’s Development
Planning Division. F.F. No. 26. Kramer said the Commission approved the


       10
           The City cites to both “Development Regulations ¶ I.B.5” as well as Planning
Commission representative Sara Chiu’s testimony. See City’s Brief at 20. We note, however, that
effective July 30, 2012, the Planning Commission adopted new regulations. Those regulations
provide, “[a]ll regulations heretofore adopted by the City Planning Commission are hereby
superseded.” Phila., Pa., Planning Comm’n Regulation § 1.2 (2016); see also R.R. at 168a
(containing memo from William Kramer, Director of the Planning Commission’s Development
Planning Division, to the Chief Deputy City Solicitor in which Kramer states: (i) that the
Wissahickon Watershed regulations that were discussed at the hearing were approved by the
Planning Commission on July 1, 1975, but that in 2012, the Planning Commission adopted new
regulations which included appealing the prior regulations; and (ii) that he reviewed the entire
document (regulations) and it contains no specific regulations with regard to the Wissahickon
Watershed controls). Additionally, when Chiu was asked about the development regulations, she
said that they were no longer used by the Planning Commission and that for the stormwater
calculation part, the Planning Commission defers to the Water Department. R.R. at 674a.

                                              14
development plan using a three-prong review: first, the Commission determined that
a maximum of 27% impervious coverage was permitted on the entire site, which
included 13.5% on one lot and 16.7% on the other lot;11 second, the Commission
reviewed the steep slopes;12 and third, the Commission reviewed the plan for
anything located within 200 feet of an open water body or 50 feet of a swale. F.F.
No. 26; R.R. at 342a-43a. Kramer testified that the plans indicated that “these
things” were within 200 feet of a swale and open body of water, but explained that
“our interpretation on the particular section of the Code is because these were
pervious coverage sidewalks, because these were green roofs on the buildings,
themselves, we did not consider them to be impervious coverage, and therefore, we
gave it a stamp of approval.” R.R. at 343a-44a; see F.F. Nos. 26 & 31; R.R. at 346a-
47a. When questioned about other sections of the WWOD Ordinance that permit
impervious coverage, Kramer agreed that within the 200-foot setback area, no new
impervious construction is allowed. R.R. at 346a. Kramer agreed that under the
Zoning Code, including the 200-foot setback provision, the proposed construction
was permissible because it resulted in no new impervious construction. F.F. No. 27,
R.R. at 346a. He explained there was no new impervious ground cover within the
200-foot setback “because the buildings were being built with green roof and porous
pavement for the driveway components of this plan.” R.R. at 367a. Kramer
explained that the determination was made by internal staff, not the Planning




       11
         The WWOD allows for impervious coverage outside of the 200-foot setback but imposes
coverage limitations. See Zoning Code § 14-510(6).
       12
            This is not an issue before this Court.

                                                      15
Commission itself.13 R.R. at 368a. Kramer did not testify about a 2.64 inch per hour
rule. See R.R. at 341a-92a.
              Kramer also testified that as part of the planning review process, the
Planning Commission requires that “any development . . . have conceptual approval
from the Water Department[,] [which] . . . is primarily concerned with stormwater
management.” R.R. at 348a. Kramer stated that the Water Department’s conceptual
approval was used by his office when it decided what “was permeable, and therefore
was permissible within this distance of the open body of water.” F.F. No. 28; R.R.
at 348a.
              On cross-examination, Kramer admitted that his staff “essentially”
approved the plan without knowing the technical details of what the green elements
are made of, stating “[w]e relied a lot on the handling of the storm water management
review that the Water Department did to determine that it was porous and permeable,
and that was the interpretation.” R.R. at 377a. Kramer agreed that porous pavement
is not the same as natural infiltration of water into the ground. R.R. at 376a. Kramer
noted that the Water Department only completed a conceptual review and had not
“moved to building permit components” and had not completed a full technical
review of the stormwater management plan. R.R. at 387a-88a.
              Kramer admitted that the Planning Commission has no written internal
policies on how green elements, green roofs or retention basins are allowed in the
200-foot setback. R.R. at 373a. Additionally, when questioned as to whether there
was impervious coverage, Kramer admitted that “[t]here may be a small amount with
       13
          We note the Planning Commission’s regulations authorize the Executive Director “to
provide, on behalf of the [Planning] Commission, prerequisite approvals and recommendations on
zoning permits and building permits in order to fulfill the Commission’s duties pursuant to the
Zoning Code.” Planning Comm’n Regulation § 9.1.1. The Executive Director is defined as “[t]he
Executive Director of the [Planning] Commission, or his or her staff designee.” Planning Comm’n
Regulation § 2.5.
                                              16
retaining wall tops that I can’t say definitively there isn’t any, but it was minimal.”
R.R. at 373a-74a. He further agreed that the plan indicated that there are stone
retaining walls within the “interior of the property, not just . . . along the exterior of
the parcel[,]” as well as concrete steps. R.R. at 374a-75a. Kramer stated that he
understands there is such a thing as porous concrete but agreed that it was not labeled
as such on the plans. R.R. at 391a-92a.
             At the February 5, 2014 hearing, Objector presented the expert
testimony of land planner George Ritter, who stated that he “practiced in the field of
land planning for more than 30 years . . . .” F.F. No. 18, R.R. at 294a. Ritter testified
that he reviewed, among other things, the proposed plan. Ritter noted that the plan
“proposed green infrastructure, a green roof[,] . . . permeable pavement . . . and two
rain gardens.”    F.F. No. 23, R.R. at 316a.         He disagreed with the Planning
Commission’s conclusion that those elements eliminated all impervious cover. F.F.
No. 23, R.R. at 316a-17a. He stated that even if one accepts the argument on green
infrastructure, new impervious ground cover still exists in the plans, because the
stairs, sidewalks, retaining walls and curbs are not labelled on the plans as pervious.
R.R. at 317a. Ritter also stated that his review of the plans showed there was
impervious ground cover in violation of the 200-foot setback. F.F. No. 24, R.R. at
319a.    Ritter acknowledged that green infrastructure can help with storm
management, but stated storm management is a different issue. R.R. at 320a.
             At a subsequent hearing held on April 29, 2015, the City also called
Christine Majoram from the City’s Water Department. F.F. No. 42.                Majoram
testified that the Water Department’s goal is to approve a conceptual plan where
stormwater management will be part of the property. F.F. No. 42. When asked to
explain what conceptual approval meant, Majoram stated, “[i]t is a conceptual plan.


                                           17
. . . It is showing the intent of how stormwater will be managed.” R.R. at 537a.
Majoram explained that the next step before issuing a building permit would be for
the Water Department to issue a prerequisite approval and that one of those
approvals is the stormwater management technical approval, “which is a much more
in-depth technical analysis and calculations that get into the specific design of
stormwater management systems . . . .” R.R. at 538a. Majoram explained that the
Water Department has regulations that deal with stormwater management. R.R. at
539a-40a. She stated that the Wissahickon Watershed requirements are under the
Planning Commission’s purview and that the Water Department coordinates closely
with the Planning Commission when a project is located within the watershed. Id.;
see F.F. No. 42. Majoram stated that the Water Department regulations are more
stringent than the Wissahickon Watershed requirements. R.R. at 553a; see F.F. No.
43; see also R.R. at 546a-47a. She agreed that the Water Department’s review does
not include review for compliance with zoning provisions and stated the review is
for feasibility with meeting stormwater regulations. R.R. at 551a, 553a, 555a. She
stated she had no knowledge of whether the plan included new impervious coverage.
R.R. at 555a. Majoram explained that the green roof “allow[s] for the plant material
and the media to allow for transportation, but it’s not necessarily letting that water
go into the ground.” R.R. at 577a. Majoram did not discuss a 2.64 inch rule. See
generally R.R. at 534a-85a.
             Also at the April 29, 2015 hearing, Owners presented the testimony of
Edmund Doubleday, a Leadership in Energy and Environmental Design (LEED)
certified registered professional civil engineer. F.F. No. 49. He testified that the
plan showed a green roof detail, driveways constructed of permeable paver material




                                         18
and a higher retention basin that accounts for all the remainder of the runoff and that
allows runoff to be infiltrated back into the sewer. F.F. No. 50.
             At the April 29, 2015 hearing and later at a July 8, 2015 hearing,
Owners also presented the expert testimony of Timothy Woodrow, a professional
engineer. See F.F. No. 65, R.R. at 74a. Woodrow testified that it was reasonable to
conclude that the proposed construction would not impede the natural infiltration of
surface water into the soil. F.F. No. 66.
             At the fourth and final hearing on July 8, 2015, the City, at the Board’s
request, presented the testimony of Sara Chiu, a City Planner for the Planning
Commission, who stamped the plan for 114 Hillcrest Avenue as approved and
explained the Commission’s process in approving the plan. R.R. at 660a-61a; see
F.F. Nos. 52-53. Chiu explained that when she receives a plan for a project within
the WWOD, she reviews the plan for impervious coverage limitations, setback from
a watercourse and steep slopes. R.R. at 670a, see R.R. at 660a-61a.
             Chiu stated that when she reviewed the plan initially, she determined
that the development was within the 200-foot setback, but that she approved the plan
because she concluded there was no new impervious ground cover due to the use of
green elements. F.F. Nos. 54-55; see R.R. at 664a, 669a. Chiu testified as to why
she allowed construction within the 200-foot setback:

             So for the [Zoning] Code language there’s no new
             impervious ground cover, we allowed [sic] to erect it
             within the 200 feet. With this proposal, they’re proposing
             green roof. They’re proposing pervious driveway.
             They’re proposing using pervious concrete. So that has a
             plan attached – a stormwater plan was approved ahead of
             time when they come [sic] in. So all the stormwater runoff
             situation has been resolved.
R.R. at 664a.
                                            19
             When questioned as to what guidance she uses to determine whether
there is any new impervious ground cover, Chiu stated that the infiltration
requirement is not in the Zoning Code and “is in the older regulations that we have
been using.” R.R. at 666a. When questioned as to whether it was in a Planning
Commission regulation, Chiu said, “I would say it’s a policy because that infiltration
requirement is an understanding between us and the Water Department.” R.R. at
666a.   Chiu also testified that the City Water Department has its stormwater
regulations that are well accepted so the Planning Commission uses those as a
supplement. R.R. at 673a. Chiu explained that the Water Department’s stormwater
regulations concerning the WWOD require the first 2.64 inches per hour of
stormwater runoff to infiltrate.     R.R. at 674a.     Chiu was also asked about
development regulations and whether they were still used by the Planning
Commission. R.R. at 674a. Chiu replied, “No, actually not, because for the
stormwater calculation part we defer to the Water Department for them [sic] to
review.” R.R. at 674a. Chiu explained that the stormwater regulations are a “more
complete package.” R.R at 674a. Chiu was asked later whether she was given any
“guidance on what constitutes impervious when [she] determined that a green roof
would be pervious coverage[.]” R.R. at 684a. Chiu replied, “[i]mpervious, if they
can manage the 2.64 inch per hour run off rate, it’s pretty good pervious material
already, because you basically have the water draining down, not creating a runoff
to the surrounding properties or to the city streets that is draining into the public
sewer.” R.R. at 684a.
             The Zoning Code defines “impervious ground cover” as “[a]ny
building, pavement, or other material that impedes the natural infiltration of surface
water into the soil. Impervious ground cover includes, but is not limited to,


                                         20
structures, swimming pools, paved and other non-permeable patios, walks,
driveways, parking areas, streets, sidewalks, and any other non-permeable ground
cover.”     Zoning Code § 14-203(154).14             Terms such as “impede” and “non-
permeable” are not defined in the Zoning Code. The ZBA noted that, according to
its common usage, “impede” means “to interfere with or slow the progress of[.]”
C.L. No. 20 (quoting Merriam-Webster Online Dictionary).15 Therefore, something
is impervious if it interferes with or slows the natural infiltration of surface water
into the soil. Consequently, to know if a structure or material is impervious, one
needs to know if that particular structure or material slows the natural infiltration of
surface water into the soil.
               Kramer admitted that porous pavement is not the same as the natural
infiltration of water into the ground, but that the infiltration rate for the proposed
material was never specifically calculated by the Water Department or the Planning
Commission. Chiu’s testimony indicates that, when determining the proposed

       14
          This section of the Zoning Code was amended after the parties filed their appeal with
this Court. See Phila., Pa., City Council Bill No. 180346-A § 14-203(154) (July 18, 2018). The
Zoning Code now defines impervious ground cover as:

       [a]ny building, pavement, or other material that substantially bars the natural
       infiltration of surface water into the soil. Manufactured materials demonstrated to
       be pervious shall not be considered impervious ground cover. The Commission may
       promulgate regulations regarding the types of cover that may be considered
       impervious, consistent with the intent of this definition.

Zoning Code § 14-203(154) (amendments in italics). This amendment was not made retroactive.
See City Council Bill No. 180346-A § 2 (stating “[t]his [o]rdinance shall take effect immediately”).
Therefore, we must apply the definition in the Zoning Code as written at the time of Owners’
permit application.
       15
          Where terms are not defined in a statute, they should be “construed according to their
common and approved usage.” Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C.S.
§ 1903. Courts generally use dictionaries as a source for determining the common and approved
usage of a term. Love v. City of Philadelphia, 543 A.2d 531, 532 (Pa. 1988).

                                                21
development was impervious, the Planning Commission applied an infiltration
requirement that was in “older regulations” and was based on an understanding with
the Water Department. We note that the older development regulations, requiring a
surface to absorb at least 2.6 inches of rain without runoff to be deemed pervious,
are not in effect,16 although Chiu states that the “2.64 inch rule” continues as the
policy of the Planning Commission because that “infiltration requirement is an
understanding between [the Planning Commission] and the Water Department.”
R.R. at 666a; see R.R. at 674a. Additionally, Chiu explained that the Water
Department’s stormwater regulations concerning the WWOD Ordinance require the
first 2.64 inches of stormwater runoff to infiltrate. R.R. at 674a. Chiu testified that
if the property can manage the 2.64 inch per hour runoff rate, she would consider
“it” pervious. R.R. at 684a.
                Even accepting the infiltration rate requirement as the Planning
Commission’s policy, here, the policy utilized concerns a determination as to the
stormwater runoff for the entire property. Such determination is irrelevant to
whether there is impervious ground cover.            The Zoning Code definition of
impervious ground cover states that a “building, pavement, or other material” is
impervious if it “impedes the natural infiltration of surface water into the soil.”
Zoning Code § 14-203(154). The City in its brief recognizes that “as long as a
surface can absorb at least 2.6 inches of rain without runoff, it is not impervious.”
City’s Brief at 20 (emphasis added). The record does not reflect any analysis of the
surfaces within the 200-foot setback in this case.
               It is apparent from the testimony that the 2.64 inch infiltration rate was
applied to the project, not to the surface of any specific proposed material or


      16
           See supra pp. 13-14 & note 10.
                                            22
structure. Indeed, Kramer admitted that his staff “essentially” approved the plan
without knowing the technical details of what the green elements are made of, stating
that the Planning Commission “relied a lot” on the Water Department’s conceptual
approval of the stormwater management for the property to determine that the
proposed elements of the construction were permeable. See F.F. No. 28; R.R. at
348a. Chiu testified similarly. See R.R. at 673a-74a, 684a.
             The Planning Commission’s review of the plan never included an
analysis of whether the construction elements proposed within the 200-foot setback,
“green” or otherwise, were individually impervious. Further, nothing in the record
indicates that the Water Department made such a review. Indeed, Majoram, the
Water Department representative, stated that the stormwater calculations are
separate and different from the Zoning Code provisions regarding impervious
coverage and that the Water Department’s approval was only a conceptual approval
of the plan. See R.R. at 537a-38a, 551a, 553a, 555a. Majoram also noted that she
is unaware of whether the plan included new impervious coverage. R.R. at 555a.
             The plain language of the WWOD Ordinance requires that there be no
new impervious ground cover. Thus, we reject Owners’ argument that if the project
manages 2.64 inches per hour, the proposed impervious ground cover, i.e., the
materials and structures, within the 200-foot setback should be considered pervious.
In sum, there is nothing to equate this infiltration rate requirement for the property
and the management of stormwater for the project with the absence of impervious
ground cover.
             The Zoning Code, at the time of Owners’ permit application, did not
contain a definition of green roof, and the Planning Commission regulations do not




                                         23
contain a definition of green roof; therefore, we must resort to its common usage.17
A green roof is commonly defined as “[a] roof covered with vegetation, especially
one intended to provide environmental benefits.” “green roof,” English: Oxford
Living Dictionaries, https://en.oxforddictionaries.com/definition/us/green_roof (last
visited Aug. 16, 2018).           The traditional roof still exists, albeit covered with
vegetation. See supra note 8. A green roof does not make the impervious elements
of the underlying roof and building pervious. Majoram testified that the “water is
falling into a stormwater management practice, so it’s being managed to some
degree in that green roof.” R.R. at 581a. In other words, the green roof is a tool that
simply manages the stormwater infiltration for that surface. Majoram explained that
the green roof “allow[s] for the plant material and the media to allow for
transportation, but it’s not necessarily letting that water go into the ground.” R.R. at
577a. In this case, the record is devoid of any analysis as to the particular effect
that the proposed green roof has on the structure upon which it is situated or upon
the natural infiltration of surface water into the soil. The only analysis conducted by
the Water Department, and relied upon by the Planning Commission, was the
stormwater calculation for the “project” as a whole.
                 To assume that a particular structure’s or material’s infiltration rate is
at least 2.64 inches per hour, or to assume that a structure or material does not impede
the natural flow of infiltration into the soil because the infiltration rate for the project
is at least 2.64 inches per hour, is both arbitrary and inconsistent with the plain
language of the ordinance requiring no new impervious ground cover. Therefore,
the Planning Commission’s interpretation was not entitled to deference.                 See
Lancaster Cty., 94 A.3d at 986 (stating an administrative agency’s interpretation

       17
            See 1 Pa. C.S. § 1903; Love, 543 A.2d at 532.


                                                24
carries little weight when it is inconsistent with the statute itself or when the statute
is unambiguous); cf. Turchi, 20 A.3d at 594 (stating that an agency’s interpretation
of an ordinance is entitled to deference unless the interpretation is plainly erroneous
or inconsistent with the ordinance).
             Based on the evidence before it, the ZBA concluded that the 114 Permit
allows for the erection of new impervious ground cover located within the 200-foot
setback. C.L. No. 12. The Planning Commission’s Executive Director, Kramer,
testified that there were stone retaining walls, retaining wall tops and concrete steps
within the interior of the property. R.R. at 373a-76a. Ritter, Objector’s land
planning expert, testified that there was impervious ground cover in the plans in
violation of the 200-foot setback. F.F. No. 24. Ritter testified that “green elements”
do not eliminate impervious ground cover. See F.F. No. 23, R.R. at 315a-20a.
Further, Ritter stated that, at a minimum, there remained stairs, sidewalks, retaining
walls, and curbs within the 200-foot buffer. See R.R. at 317a. Kramer’s and Ritter’s
testimony is evidence which a reasonable mind might accept as adequate to support
a conclusion that impervious ground cover exists within the 200-foot setback.

             b. 200-foot set back
             Owners and the City, nevertheless, argue that the issuance of the permit
can be sustained on the independent ground that the proposed development is not
within 200 feet of the bank of a surface water body. We disagree.
             The Zoning Code defines “bank of a surface water body” as “[t]he land
that contains a surface water body at its highest flow.” Zoning Code § 14-203(33).
The Zoning Code does not contain a definition of “surface water body.”
             Chiu testified that although the prior version of the Zoning Code
contained a definition of surface water body, the current Zoning Code does not. R.R.

                                           25
at 661a. She stated that the Planning Commission’s streams and swales map is
traditionally used to determine setbacks from a watercourse. R.R. at 660a, 673a.
Chiu explained that the streams and swales map is the official Wissahickon
Watershed map and that it was produced in either 1973 or 1976. R.R. at 666a, 672a.
She stated that the map identifies a surface water body in blue. R.R. at 665a. In
referring to the map, she agreed that the map shows the creek going under Hillcrest
Avenue and that where the map becomes blue again after being underground is the
beginning of a surface water body. Id. She further agreed that she would draw a
200-foot arc around that to depict the setback. Id. She explained that when she
reviews a plan, she compares the proposed plan with the streams and swales map.
R.R. at 666a.
             Chiu explained that there was a discrepancy on the plan submitted by
Owners for the Planning Commission’s review because that plan used the existing
outfall from which to locate the 200-foot buffer. R.R. at 665a. Chiu stated that when
the applicant and his engineer first came into her office to ask about the project, she
showed them the streams and swales map and “it is right on the border line.” R.R.
at 665a. Chiu stated that when she reviewed the plan initially, she determined that
the development was within the 200-foot setback, but that she approved the plan
because she concluded there was no new impervious ground cover due to the use of
green elements. F.F. Nos. 54-55; see R.R. at 669a.
             On cross-examination, Owners presented Chiu with a new plan which
was not previously submitted to the Planning Commission for review but was
submitted for the first time as an exhibit at the July 8, 2015 hearing. See F.F. No.
58. The plan was prepared by Paul Lonie, a professional land surveyor who had also
prepared the initial plan that was submitted to the Planning Commission showing


                                          26
the 200-foot radius arc (the setback area). R.R. at 585a, 587a-88a. The new plan
purported to show the 200-foot setback using the streams and swales map that Chiu
previously explained she uses when she reviews plans. Chiu testified that the new
plan “basically demonstrate[s] the building footprint is beyond the 200 feet.” F.F.
No. 58, R.R. at 682a. This was not the Planning Commission’s decision when it
approved the plan that was submitted for review. Indeed, in responding to why she
approved the plan, Chiu testified, “we allowed [sic] to erect it within the 200 feet.”
R.R. at 664a.
             Owners and the City argue that the critical question is what constitutes
a “surface water body.” They contend the Planning Commission uses the streams
and swales map to designate what constitutes a surface water body. They argue that
the Planning Commission’s use of the map, rather than an ad hoc decision for each
proposed development, which would require either a survey or physically visiting
the property, is reasonable, and therefore, the ZBA should have accorded deference
to the Planning Commission and its use of the streams and swales map to determine
from what point to draw the 200-foot setback arc. They maintain that the ZBA
improperly turned the issue into one of credibility, relying on other evidence offered
at the hearing.
             With respect to the other evidence, Owners presented, at two separate
hearings, the expert testimony of Lonie. At the April 29, 2015 hearing, Lonie
explained that he marked the setback area from an “outfall,” which he explained was
the location where the water, after being piped under Hillcrest Avenue, surfaces and
reaches daylight. R.R. at 599a, 605a. When questioned as to why he marked the
200-foot radius from an outfall, Lonie stated that the Planning Commission asked
him to do it. R.R. at 601a, see F.F. No. 47. Lonie stated that he did not make any


                                         27
judgment as to whether this was a surface water body or swale, but he was just asked
by the Planning Commission to show where the “closest watercourse” was and he
physically located it and marked “[w]here the water was evident.” R.R. at 609a-10a;
see F.F. No. 48. Lonie agreed that the building envelopes were within the 200-foot
setback. R.R. at 609a.
             Owners later recalled Lonie at the July 8, 2015 hearing to testify about
the new plan following Chiu’s testimony.        Lonie stated that after his earlier
testimony, he learned that the Planning Commission uses its official maps to record
open bodies of water and that he changed his plan to reflect that new information.
R.R. at 686a. Lonie testified that his original map was prepared from a field survey.
F.F. No. 64. He stated that he did not resurvey the property in preparing the new
plan because he would not measure from the existing outflow; instead, he measured
from the water body as depicted on the Planning Commission’s streams and swales
map. R.R. at 688a; see F.F. Nos. 61-62, 64.
             The Planning Commission’s determination is not entitled to deference
here, as it was inconsistent and arbitrary. First, it must be noted that when Chiu
reviewed the plan, she acknowledged that there was development proposed within
the 200-foot setback.    She approved the plan based on her decision that the
development did not include impervious ground cover. Kramer testified similarly.
R.R. at 343a-44a; see F.F. Nos. 26 & 31, R.R. at 346a-47a.
             Notably, Kramer testified that the third prong of the Planning
Commission’s review process is to review for anything located within 200 feet of an
open water body. R.R. at 343a. Chiu also testified that when she receives a plan for
a project within the WWOD, her process is to review the plan for, among other
things, setback from a watercourse, and that she traditionally uses the streams and


                                         28
swales map for this purpose. R.R. at 670a; see 660a, 673a. Chiu testified that she
compared the development plan with the streams and swales map. R.R. at 673a-74a.
Chiu also testified that the initial plan shows the location of the outfall and the arc
but that the outfall’s location is not the same as the location of the end of the stream
on the streams and swales map used by the Planning Commission. R.R. at 674a.
Nevertheless, despite this apparent discrepancy, Chiu approved the plan. The
Planning Commission accepted the original plan which was prepared based on a
field survey. Only later did the Planning Commission say the plan should have been
based on the streams and swales map. Accepting the original plan, which used the
existing “outfall” contrary to the Planning Commission’s claimed normal policy,
then later claiming that the plan was not reviewed and interpreted properly under the
streams and swales map pursuant to the Planning Commission policy is inconsistent
and clearly arbitrary and, therefore, not entitled to deference. Cf. Turchi, 20 A.3d at
594 (stating that an agency’s interpretation of an ordinance is entitled to deference
unless the interpretation is plainly erroneous or inconsistent with the ordinance).
              As the ZBA was not required to give deference to the Planning
Commission here, the ZBA did not err in rendering its decision based on the
evidence before it. In rendering its decision, the ZBA recognized conflicting
testimony existed regarding the location of the 200-foot buffer in relation to the
proposed construction. C.L. No. 12.
              The ZBA found the testimony presented by Owners at the fourth
hearing regarding the location of the 200-foot setback to be incredible.18 C.L. No.

       18
           Owners’ counsel disputes Objector’s statements that, at the first hearing, counsel
“stipulated” that the development was within the 200-foot setback. This Court does not need to
address whether counsel’s statement constituted a stipulation, because, even without counsel’s
statement, there is substantial evidence to support the ZBA’s finding that the proposed
development fell within the 200-foot setback.
                                             29
17. Instead, the ZBA credited the expert testimony of Ritter, who determined that
the proposed development would fall within the 200-foot buffer. C.L. No. 15.
Additionally, the ZBA noted that the Planning Commission determined the proposed
development was within the 200-foot setback when the permit was issued. C.L. No.
16. Indeed, Chiu testified that when she approved the plan, she believed the
development was located within the 200-foot setback. F.F. No. 56, R.R. at 669a.
Kramer also confirmed that the plan was approved because what was being proposed
within the 200-foot setback was not impervious. R.R. at 346a; see F.F. Nos. 30-31.
It is well-settled that the ZBA is the arbiter of credibility. Manayunk, 815 A.2d at
658. This Court may not alter those findings.
             The testimony of Chiu, Kramer and Ritter is such evidence that a
reasonable mind might accept as adequate to support the ZBA’s conclusion that the
proposed development fell within the 200-foot setback and, consequently,
constitutes substantial evidence to support the ZBA’s decision on this issue.
             We conclude that the trial court did not err in affirming the ZBA’s
determination that the proposed development introduced new impervious coverage
within the 200-foot setback from a watercourse in violation of Zoning Code section
14-510(5), and, therefore, we affirm the trial court’s order affirming the ZBA’s
decision to the extent it sustained the appeal of the 114 Permit.
             Accordingly, for the foregoing reasons, we affirm the trial court’s order
affirming the ZBA.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge



                                         30
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Appeal of Amit Azoulay,           :
Idit Azoulay and Assaf Lavon,            :
                  Appellants             :
                                         :
            v.                           :
                                         :
Philadelphia Zoning Board of             :
Adjustment and City of Philadelphia      :
and Hillcrest Preservation Alliance,     :   No. 1085 C.D. 2017
LLC, and Friends of The Wissahickon      :
                                         :
                                         :
                                         :
In Re: Appeal of Amit Azoulay,           :
Idit Azoulay and Assaf Lavon             :
                                         :
            v.                           :
                                         :
Zoning Board of Adjustment               :
                                         :
In Re: Appeal of Hillcrest               :
Preservation Alliance, LLC               :
                                         :
            v.                           :
                                         :
Zoning Board of Adjustment               :
                                         :
Appeal of: Hillcrest Preservation        :   No. 1177 C.D. 2017
Alliance, LLC                            :

                                    ORDER
            AND NOW, this 7th day of September, 2018, the order of the Court of
Common Pleas of Philadelphia County dated July 7, 2017 is AFFIRMED.

                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge
