            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Take Back Your                                :
Neighborhood (RCO),                           :
                                              :
                               Appellant      :
                                              :
                       v.                     : No. 141 C.D. 2017
                                              : Submitted: October 17, 2017
6600 Bustleton Associates; City of            :
Philadelphia; Philadelphia Zoning             :
Board of Adjustment                           :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: November 13, 2017


               Take Back Your Neighborhood (RCO) (Objector) appeals the order of
the Philadelphia County Court of Common Pleas (trial court) denying its appeal and
affirming the decision of the City of Philadelphia’s (City) Zoning Board of
Adjustment (Zoning Board) that granted, with provisos, the application of 6600
Bustleton Associates (Landowner) for a special exception1 to operate a personal care
home at 6600 Bustleton Avenue. We affirm.



       1
         “A special exception is not an exception to the zoning ordinance, but rather a use to which
the applicant is entitled unless the zoning board determines, according to the standards set forth in
the ordinance, that the proposed use would adversely affect the community.” Blancett-Maddock
v. City of Pittsburgh Zoning Board of Adjustment, 640 A.2d 498, 500-01 (Pa. Cmwlth. 1994),
appeal denied, 655 A.2d 992 (Pa. 1995) (citation omitted).
                Landowner’s property is located at the corner of Bustleton Avenue and
Magee Street in the City’s RSA-5 Residential Single-Family Attached zoning
district.2 There is a 25,000-foot, two-story detached structure on the property that
was formerly used as a charter school. The site is vacant and includes off-street
parking for 18 cars.
                On December 4, 2015, Landowner submitted an application for a
zoning/use registration permit with the City’s Department of Licenses and
Inspection (L&I) to operate a personal care home on the property. 3 On December
14, 2015, L&I issued a Notice of Referral, referring the matter to the Board because
the proposed personal care use requires special exception approval in the RSA-5

       2
           Section 14-401(1)(c) of the City’s Zoning Code states:

                The RSA, Residential Single-Family Attached districts are
                primarily intended to accommodate attached and semi-detached
                houses on individual lots, but may be applied in areas characterized
                by a mix of housing types, including detached houses. The districts
                are also intended to provide a density transition between [the
                Residential Single-Family Detached] districts and [the Residential
                Multi-Family] districts. The Zoning Code includes five RSA
                districts that are differentiated primarily on the basis of minimum
                lot area requirements.

       3
        Section 14-602(1) of the Zoning Code provides that the “personal care home” use is a use
permitted by special exception in the RSA-5 zoning district. Section 14-601(2)(b)(.1) defines
“personal care home” as follows:

                Any premises in which food, shelter, and personal assistance or
                supervision are provided for a period exceeding 24 hours for four or
                more adults who are not relative of the operator, who do not require
                the services in or of a licensed long-term care facility, but who do
                require assistance or supervision in such matters as dressing,
                bathing, diet, financial management, evacuation from the residence
                in the event of an emergency, or medication prescribed for self-
                administration.


                                                 2
zoning district. Reproduced Record (R.R) at 84a.4 The Notice noted for the Zoning
Board that the Zoning Board had previously granted a special exception for an
education facility on the property on August 7, 2013, and that “[p]er §14-603(11)
[of the Zoning Code], where the Pennsylvania Department of [Human Services]
requires, personal care homes must comply with all applicable regulations of 55 Pa.
Code Chapter 2600.” Id.
                Landowner thereafter filed an application for a special exception with
the Zoning Board.5 At the Board hearing, Landowner’s counsel, Vern Anastasio,

       4
         Section 14-303(7)(b) states that “[o]nce a use application has been filed with L&I, and
L&I confirms that the use is subject to the special exception approval procedures of this §14-
303(7) (Special Exception Approval) and L&I provides a referral to the applicant, the applicant
has 30 days to file an appeal to the Zoning Board for special exception approval.”

       5
           Section 14-303(7)(e) of the City’s Zoning Code states:

                (e) Criteria for Review and Action by the Zoning Board.

                The Zoning Board must approve, or approve with conditions, the
                application for a special exception if it determines that the criteria in
                §14-303(7)(e)(.1) and §14-303(7)(e)(.2) below have been met,
                unless the Zoning Board finds that the objectors, if any, satisfied the
                criteria in §14-303(7)(e)(.3). The Zoning Board shall, in writing, set
                forth each required finding for each special exception that is granted,
                set forth each finding that is not satisfied for each special exception
                that is denied, and to the extent that a specific finding is not relevant
                to the decision, shall so state.

                        (.1) Specific Conditions of Use.

                        The applicant shall have the initial duty of presenting
                        evidence, and the burden of proof, that the proposed use
                        meets the definition for a use permitted by special exception,
                        that all dimensional standards are satisfied, and that the
                        application complies with all the criteria and meets all the
                        conditions applicable to the proposed use, including all


                                                   3
applicable use-specific standards in §14-603 (Use-Specific
Standards).

(.2) Specific Detrimental Impacts on the Neighborhood.

The applicant shall have the initial duty of presenting
objective evidence, and the burden of proof, that the grant of
a special exception will not cause the following specific
detrimental impacts to the neighborhood beyond that which
normally might be expected from the proposed use:

       (.a) Congestion in the           public    streets   or
       transportation systems;

       (.b) Overcrowding the land;

       (.c) Impairing an adequate supply of light and air to
       adjacent property;

       (.d) Burdening water, sewer, school, park, or other
       public facilities;

       (.e) Impairing or permanently injuring the use of
       adjacent conforming properties;

       (.f) Endangering the public health or safety by fire
       or other means; or

       (.g) Inconsistency with the Comprehensive Plan of
       the City.

(.3) General Detrimental Impacts on the Neighborhood.

Once the applicant meets such initial duty and burden of
proof, the objectors, if any, shall have the duty of presenting
objective evidence, and the burden of proof, that the
proposed use is substantially likely to cause a detrimental
impact on the health, safety, and welfare of the
neighborhood exceeding that which normally might be
expected from the proposed use. The objectors also may
present evidence, and have the burden of proof, that the


                          4
stated that the block on which the property is located includes a number of
institutional and non-residential uses, including four churches and a gas station. R.R.
at 59a. He explained that the facility would house “single individual women, who
had . . . dependency issues, went through the detox program, are completely clean,
and are coming into a personal care facility for counseling, for life skills training, to
assist with job employment.” Id. at 32a. He indicated that the facility would not
accept “any applicant with a criminal background, with a violent background, even
a PFA,” and that a resident would only remain at the facility for an average of 90
days. Id. at 33a, 37a. He stated that there would initially be 25 residents “phasing
up to, within 12 months, 35,” but that “[t]he Commonwealth would set it to
somewhere in the upper 40s.” Id. at 32a.
             Anastasio stated that three community meetings were held prior to the
Zoning Board hearing and that Landowner proposed additional security measures to
address the “health and safety” concerns raised at those meetings. R.R. at 36a. He
described these additional measures as including “around-the-clock security
personnel, a security system and surveillance inside and out, [and] security locked
doors because there are several doors.” Id. He stated that the residents would be
subject to a 10:30 p.m. curfew and would only be permitted to leave the facility for
scheduled appointments. Id. at 39a. He described the prior use of the property as “a
charter school with hundreds of students and staff,” and asserted that the impact of
the proposed use on parking, congestion, and public utilities would be “drastically
less” than that of prior uses. Id. at 35a.
             Landowner’s representative, Jeffrey Fuchs, testified regarding the
proposed use, explaining that it would be a “non-medical” “program facility” that

                    proposed use fails to conform with the purpose, spirit, and
                    intent of this Zoning Code.
                                             5
would house female residents coming directly out of detox and those with other
mental health issues, including eating disorders and depression. R.R. at 41a, 43a.
He stated that there would be group counseling and instruction in life skills such as
cooking and cleaning offered to the residents. Id. at 41a. He testified that the curfew
would be strictly enforced and that there would be a zero tolerance policy regarding
drug use. Id. at 39a, 43a. He explained that a resident could only go out for an
appointment and that the resident would be tested for drugs upon her return to the
facility. Id. at 39a-40a.
               Both Objector and the Oxford Circle Civic Association appeared before
the Zoning Board in opposition to the application. Robert Rudinsky, Objector’s
representative, acknowledged that “there is a need for this type of facility,” but
expressed Objector’s opposition to the application as, “[I]s it the best use of the
building[?] The building lends itself to quite a few options, as a community center,
[or] as a school” because “[i]t’s been a school in the past.” R.R. at 46a. He also
stated that the community had “safety concerns” and “parking concerns” regarding
the proposed use. Id. at 52a. However, Rudinsky did not raise any other issue
regarding Landowner’s compliance with any other general or specific requirement
of the Zoning Code for the grant of a special exception.6


      6
          Rudinsky expressed Objector’s objection to the application as follows:

                        [W]hat he’s trying to do we think is absolutely great vision.
               We’re not – without a doubt, we’re not questioning the vision of the
               facility that he’s trying to create. We know there is a need for this
               type of facility. We’re clearly aware of it. What the concern is, is
               it the best use of the building. The building lends itself to quite a
               few options, as a community center, as a school. It’s been a school
               in the past.



                                                 6
        Now, due to Mr. Fuchs’ credit, he wasn’t aware that after the
last meeting we have done some work on our end to try and reach
out and find other tenants for his building, some – things that are
more in the nature of a school, a community-related issue. But it’s
not an easy task. There is nothing that’s going to be easy about this.
We certainly feel that this gentleman should rent this building.

                                 ***

        I went to the initial site visit, and then we had a leadership
meeting and a general meeting, so three meetings. At the first
meeting, we did address certain concerns. I went back to the
neighborhood. The leadership team was completely opposed to the
project.

        Again, even after that meeting I tried to yield to my
leadership team saying that the gentleman needs to rent the building,
what can we do. We reached out to the mayor’s office. We reached
out to a couple [of] folks that are looking for buildings. Again, this
is not an easy task.

        Also, we weren’t aware of the urgency until Mr. Fuchs
brought it to our attention that he’s looking for a tenant. This, again,
is not an easy task. We do have some interest. There is not a
guarantee. The problem that we’re having right now is a very short
period of time, as you know there [are] political elections going on
in the city, and it’s just hard to get the momentum moving as fast as
Jeff would like us to get it moving.

        Again, we’re not downplaying the vision of the facility.
What we’re saying is, in this neighborhood, would it be the best
function. It’s next to a playground. It’s – we don’t have any vacant
buildings that we can turn into schools. This is set up as a school as
it is now.

                                 ***

       There was [sic] obviously safety concerns, parking concerns.
There is – the other concern, the bottom line is that we didn’t feel
that we could find him a suitable applicant. I, myself, have


                                   7
               On March 8, 2016, the Zoning Board issued a written decision granting
Landowner’s special exception application subject to the following conditions: (1)
a permit must be obtained from L&I within one year of the decision; (2) all
construction must be in accordance with plans approved by the Zoning Board; (3) a
new application and a new public hearing will be required for the failure to comply
with the foregoing conditions; (4) a maximum of 35 residents; and (5) a two-year
temporary approval. R.R. at 1a.7

               personally tried to bring applicants into the building. And the price
               has been difficult.

R.R. at 46a-49a, 52a.

       7
         With respect to the specific criteria for the grant of a special exception in Section 14-
303(7)(e)(.2) of the City’s Zoning Code, the Zoning Board set forth the following conclusions:

               i. The Board concludes that the availability of on-site parking, the
               relatively low number of residents, and the limited circumstances
               under which residents will be permitted to leave the facility or
               visitors will be permitted to enter the Property are factors sufficient
               to establish that the proposed facility will not increase congestion in
               the public streets or transportation systems beyond what would
               normally be expected from a personal care home. By contrast,
               Objectors offered no objective evidence to support a finding that the
               use would increase congestion in the public streets or transportation
               systems.

               ii. The Board concludes that the size of the property, the floor area
               of the existing building and the relatively low number of residents
               (particularly in comparison to the number of students using the site
               under the prior use) are factors sufficient to establish that the use
               will not overcrowd the land. Objectors presented no evidence to
               contradict this conclusion.

               iii. The Board concludes that evidence going to the specific nature
               of the proposed use, including security measures to be taken by
               [Landowner], and the Property’s use history, was sufficient to


                                                 8
                 On April 4, 2016, Objector appealed the Zoning Board’s decision to the
trial court. On appeal, Objector argued: (1) the Zoning Board erred in granting the
special exception because Landowner did not present any evidence demonstrating
compliance with Section 14-303(7)(e)(.1) incorporating, through Section 14-
603(11), the specific standards of various Pennsylvania Department of Human
Services regulations for personal care homes contained in 55 Pa. Code §§2600.1-

                 establish that the proposed personal care home will not impair or
                 permanently injure the use of adjacent conforming properties.

                 iv. The Board concludes that the absence of any proposed
                 construction or alterations to the existing building is sufficient to
                 establish that the proposed use will not impair an adequate supply
                 of light and air to the surrounding properties.

                 v. The Board concludes that the evidence of record going to
                 security measures to be taken, limits on the number of residents, and
                 operating procedures for the proposed personal care home are
                 sufficient to establish that the proposed facility will not burden
                 public facilities or endanger the public health or safety.

                 vi. The Board finally concludes that the Planning Commission’s
                 conditional support for the project, as well as the Zoning Code’s
                 classification of the [proposed use] as a conditionally permitted use,
                 was sufficient to establish that the proposed use is consistent with
                 the Comprehensive Plan. With regard to this criteria, the Board
                 notes that the Planning Commission erred in referring to the
                 [request] as a variance.

                 13. In conclusion, the Board is persuaded that [Landowner] met its
                 burden of establishing that the proposed use satisfies the Code’s
                 criteria for [the] grant of a special exception and that the Objectors
                 failed to establish that the use would have a detrimental impact on
                 the public health, safety or welfare beyond that which would
                 normally be expected from such a use.

R.R. at 7a-8a.



                                                   9
2600.270; (2) the Zoning Board erred in determining that Landowner met its burden
of showing that the proposed use does not cause the specific detrimental impacts
outlined in Section 14-303(7)(e)(.2); (3) the Zoning Board erred in granting the
special exception because Landowner failed to meet the landscaping requirements
of Section 14-803(5)(e)(.1)8 and the bicycle parking requirements of Section 14-804,
providing mandatory minimum bicycle parking ratios and standards; and (4) the
Zoning Board abused its discretion by acting as a regulatory agency by issuing a
temporary special exception. R.R. at 210a-224a.
                The trial court concluded that “substantial evidence supports the
[Zoning Board]’s decision that [Landowner] met all the requirements for a special
exception” under Section 14-303(7)(e)(.2); that Objector “presented no objective
evidence of specific safety concerns, particularly in light of the high level of security
proposed for the facility”; and that Objector “also failed to present any evidence
regarding the claimed parking issues” because “the evidence showed that there
would be fewer cars entering and exiting the property, given that the 35 women who
will live there are allowed to leave only under supervision and visitors are restricted
to Sundays,” which “constitutes much less activity than when a school with hundreds
of students and staff operated at the property.” R.R. at 11a, 12a (footnote omitted).
With respect to Objector’s other claims, raised for the first time on appeal, the trial
court “did not consider these issues because an appellant’s arguments on appeal are
limited to those that were raised at the hearing.” Id. at 12a n.1 (citation omitted).



        8
           Section 14-803(5)(e)(.1) of the Zoning Code states, in relevant part, that “[a] minimum
of 10% of the interior surface parking lot in all districts and off-street loading areas in all districts
. . . calculated as the total of area in all surface parking spaces and surface drive aisles, shall be
planted with landscape.”


                                                  10
               Objector then filed the instant appeal,9 again raising the same issues that
were first raised on appeal to the trial court. Initially, we note that Objector’s
assertions that Landowner did not meet its burden under Section 14-303(7)(e)(.1)
and (.2) are based upon provisions of the Zoning Code and Pennsylvania Department
of Human Services regulations that were not cited or argued before the Board.10
Likewise, Objector’s assertions that Landowner failed to meet the landscaping
requirements of Section 14-803(5)(e)(.1) and the bicycle parking requirements of
Section 14-804 were not cited or argued before the Board. As this Court has
explained:

               Objector raised for the first time on appeal to the trial court
               and on appeal to this Court, the issue of whether the
               proposed development fails to comply with the formal

       9
          Where the trial court takes no additional evidence, our scope of review of the Zoning
Board’s grant of a special exception is limited to determining whether the Zoning Board abused
its discretion, committed an error of law, or made findings of fact not supported by substantial
evidence. Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment, 604 A.2d 298,
304 (Pa. Cmwlth. 1992), appeal denied, 645 A.2d 1320 (Pa. 1994).

       10
          Specifically, Objector asserts that the Board erred in failing to consider, and there is not
substantial evidence demonstrating compliance with, the following specific requirements
incorporated through Section 14-603(11) of the Zoning Code: (1) 55 Pa. Code §2600.4 (defining
“personal care services,” “activities of daily living,” and “instrumental activities of daily living”);
(2) 55 Pa. Code §2600.42 (outlining “specific rights” of personal home care residents); (3) 55 Pa.
Code §2600.43 (prohibiting the deprivation of any of the enumerated rights); (4) 55 Pa. Code
§2600.98 (requiring at least one furnished living room or lounge area for residents, their families,
and visitors); (5) 55 Pa. Code §2600.101 (requiring that each bedroom have a window with direct
exposure to natural light); (6) 55 Pa. Code §2600.103 (requiring access to an operable kitchen with
a refrigerator, sink, stove, oven, cooking equipment, and cabinets or shelves for storage); (7) 55
Pa. Code §2600.104 (requiring a dining area equipped with tables and chairs sufficient to
accommodate the maximum number of residents); (8) 55 Pa. Code §2600.161 (requiring that meals
meet the recommended dietary allowances established by the United States Department of
Agriculture); and (9) 55 Pa. Code §2600.122 (requiring two independent and accessible exits on
each floor arranged to reduce the possibility that they would be blocked during an emergency).



                                                 11
               requirements of a subdivision pursuant to the [Zoning
               Code]. However, an issue must be raised before the Board
               in order to preserve it for appeal. See Pa. R.A.P. 1551 (No
               question shall be heard or considered by the Court which
               was not raised before the government unit.). By raising
               this issue for the first time with the trial court on appeal,
               Objector has waived it.
Poole v. Zoning Board of Adjustment, 10 A.3d 381, 384 n.3 (Pa. Cmwlth. 2010). As
a result, all of these claims of error are waived for purposes of appeal. Id.11
               Finally, with respect to Objector’s claim that the Zoning Board abused
its discretion by issuing the special exception with provisos, we note that Section 4-
607(2) of the Philadelphia Home Rule Charter states that “[i]n the exercise of its
powers, the [Zoning Board] may . . . make such order, requirement, decision or
determination as ought to be made . . . .” In light of this grant of authority, the
Zoning Board’s imposition of provisos was not an unwarranted extension of its
function in approving the requested special exception.                  Moreover, contrary to
Objector’s assertion, the provisos were not imposed without basis but, rather, were
based on recommendations made at the Zoning Board’s hearing by a representative
of the City’s Planning Commission. See R.R. at 60a.12 As a result, Objector’s
allegation of error in this regard is without merit. See, e.g., Leckey v. Lower


       11
            See also 8131 Roosevelt Corp. v. Zoning Board of Adjustment, 794 A.2d 963, 968 (Pa.
Cmwlth.), appeal denied, 812 A.2d 1232 (Pa. 2002) (“In Teazers, Inc. v. Zoning Board of
Adjustment of the City of Philadelphia, 682 A.2d 856 (Pa.Cmwlth.1996), the Court noted that
where a full and complete record was made before a zoning hearing board, a party in an appeal to
a trial court may not raise issues not raised before the board.”).
         12
            Section 14-303(7)(c) of the Zoning Code states that “[t]he Commission shall review each
application for a special exception and shall make a recommendation to the Zoning Board as to
whether the application meets the criteria for a special exception listed in §14-303(7)(e) (Criteria
for Review and Action by the Zoning Board) and all applicable requirements for the proposed use,
including any use-specific standards in §14-603 (Use Specific Standards).”



                                                12
Southampton Township Zoning Hearing Board, 864 A.2d 593, 596 (Pa. Cmwlth.
2004) (“Because, under [Section 912.1 of the Municipalities Planning Code13], the
Board, utilizing its grant of discretionary power to make a judgment, can impose
conditions ‘it may deem’ necessary, a court reviews a challenge to the
reasonableness of those conditions; it does not determine whether there is substantial
evidence, which is a ‘fact standard,’ but whether those conditions constitute an abuse
of discretion. Like in any abuse of discretion review, the Board is not required to
support the imposition of conditions; rather, the opposite is true-property owners are
required to show that the imposition of conditions was an abuse of discretion.”).




       13
         Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53
P.S. §10912.1.
                                             13
             Accordingly, the trial court’s order is affirmed.




                                       MICHAEL H. WOJCIK, Judge


Judge Cohn Jubelirer did not participate in the decision of this case.




                                         14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Take Back Your                        :
Neighborhood (RCO),                   :
                                      :
                         Appellant    :
                                      :
                  v.                  : No. 141 C.D. 2017
                                      :
6600 Bustleton Associates; City of    :
Philadelphia; Philadelphia Zoning     :
Board of Adjustment                   :



                                     ORDER


            AND NOW, this 13th day of November, 2017, the order of the
Philadelphia County Court of Common Pleas dated January 10, 2017, at April Term,
2016 No. 00009, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
