Opinion
No. 1546 C.D. 2014
06-17-2015
Shao Bao Guan and Luo M. Ying and Renee M. Ford v. Philadelphia Zoning Board of Adjustment Appeal of: Renee M. Ford
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Renee Ford (Ford) appeals from the August 6, 2014 order of the Court of Common Pleas of Philadelphia County (trial court) reversing the City of Philadelphia Zoning Board of Adjustment's (Board) denial of Shao B. Guan's (Guan) application for special exception to convert his existing convenience store into a takeout restaurant.
I. Facts/Procedural History
Guan and his wife, Luo M. Ying (Luo), have owned the property located at 134 North 52nd Street, Philadelphia, Pennsylvania, since 2011, when they renovated the ground floor for use as a convenience store. The property is located in the CMX-2 Commercial zoning district. Guan applied to the Philadelphia Department of Licenses and Inspections (L&I) for a zoning/use registration permit for the proposed conversion of his existing convenience store into a takeout restaurant. L&I determined that the proposed use required a special exception. Subsequently, Guan filed an application for a special exception with the Board on February 27, 2013. (Board's Findings of Fact Nos. 1-3, 5, 7-8.)
Guan and Luo's attorney and the Board referred to her as "Mei Ling Luo." (Board's Finding of Fact No. 7; Reproduced Record at 52a.)
The Board conducted a hearing on October 23, 2014. Guan presented testimony and evidence to demonstrate the following. The proposed conversion would require installation of a commercial kitchen with an exhaust system that would be constructed out of the side of the building. The exhaust vent would be located next to an exhaust system mounted at the side of an attached building. The proposed restaurant's hours of operation would be from 11:00 a.m. until 1:00 a.m., seven days a week, which are the same hours of operation for the convenience store. A commercial trash service will pick up the trash stored in the rear of the building on the first floor twice a week, and a recycling company will remove all cooking oils that will be stored in a container according to the Department of Health's requirements. The proposed restaurant will be staffed by two employees, with a commitment to hiring an employee from the community. Deliveries to the proposed restaurant will be made in the front of the property. The proposed restaurant will have a delivery service and will continue to sell groceries and household items. (Board's Findings of Fact Nos. 10-18.)
Martin Cambry (Cambry), a representative from District Councilwoman Jannie Blackwell's (Blackwell) office, testified that a community meeting was held and a large percentage of the community supported the proposed restaurant. He stated that Blackwell also supported the proposed restaurant. (Reproduced Record (R.R.) at 69a.)
Although there was debate at the hearing over community support, Guan submitted evidence demonstrating that Dunlap Community Citizens Concerned, a registered community organization, and other community groups and members supported the proposed restaurant. (Board's Findings of Fact Nos. 19, 21.)
Several residents testified in opposition to the special exception application. Appellant Renee Ford (Ford) testified that she is the secretary of Dunlap Community Citizens Concerned. She stated that there is already a similar takeout restaurant a block away and the proposed restaurant is not needed in the neighborhood. Ford believed that the neighborhood needs a grocery store and healthier food options. (R.R. at 70a-71a.)
Bernard Roberts (Roberts) lives across the street from the property and testified that he was concerned about the high rate of illegal activity occurring in the area; he stated that a takeout restaurant would attract more people to the property. (R.R. at 73a-74a.) Nafees Berris (Berris) also testified that he was concerned about the illegal activity that occurs in the neighborhood and noted that a friend of his was shot outside the convenience store. Berris testified that Guan cannot handle the activity occurring at the convenience store presently, and he was concerned about Guan's ability to handle the added activity of a takeout restaurant. Berris acknowledged that the illegal activity within the neighborhood is not unique to the property. (R.R. at 76a-77a.)
Paula Brumbelow (Brumbelow), a representative from the City of Philadelphia Planning Commission, testified that the proposed restaurant was not compatible with the surrounding area. She stated that the Planning Commission recommended denial of the special exception application. (R.R. at 79a.) At the conclusion of the hearing, the Board unanimously voted to deny the special exception application.
At the hearing, Brumbelow mistakenly referred to the special exception as a variance. (R.R. at 79a.)
In its decision, the Board noted that the City of Philadelphia Zoning Code (Zoning Code) section 14-303(7)(e)(.2) states that an 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 [seven] specific detrimental impacts to the neighborhood beyond that which normally might be expected from the proposed use." Zoning Code, §14-303(7)(e)(.2). The Board concluded that Guan had not satisfied the seven criteria for granting a special exception. Specifically, the Board stated that Guan did not prove that the proposed use "will not impair or permanently injure the use of adjacent conforming properties, endanger the public health or safety, or be detrimental to the health, safety and welfare of the neighborhood." (R.R. at 5a.)
Guan appealed to the trial court. On August 6, 2014, after hearing oral argument and reviewing the certified record and filed briefs, the trial court reversed the Board's decision. The trial court first found that the Board erred in placing the burden on Guan to prove that the proposed restaurant will not be detrimental to the health, safety, and welfare of the neighborhood. The trial court further found that, even if the Board had not erred in placing this burden on Guan, the Board abused its discretion in concluding that Guan failed to prove that the proposed restaurant would not be detrimental to the health, safety, and welfare of the neighborhood pursuant to Zoning Code section 14-303(7)(e)(.3). The trial court noted that Guan presented objective evidence of safety measures and neighborhood support for the proposed restaurant, and, thus, concluded that Guan satisfied this criterion.
In its opinion, the trial court noted that, when it takes no additional evidence, its scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law.
The trial court next found that the Board abused its discretion in concluding that Guan failed to prove that the proposed restaurant will not impair or permanently injure the use of adjacent conforming properties under Zoning Code section 14-303(7)(e)(.2)(.e). The trial court stated that there is no evidence in the record demonstrating opposition from adjacent property owners. The trial court further opined that the overwhelming record evidence consists of neighbors' support of the proposed restaurant. The trial court noted that Guan presented objective evidence in the form of "supporting testimony from a representative from District Councilwoman Jannie Blackwell's office, letters of support from community groups, testimony regarding the majority vote of the community in favor of the proposed restaurant, and petitions of 134 individuals in support of the proposed restaurant." (Trial court op. at 9.) Thus, the trial court determined that Guan objectively proved that the proposed restaurant will not impair or permanently injure the use of adjacent conforming properties.
The trial court also found that the Board abused its discretion in concluding that Guan failed to prove that the proposed restaurant will not endanger the public health or safety pursuant to Zoning Code section 14-303(7)(e)(.2)(.f). The trial court stated that no evidence was presented to corroborate the testimony of Roberts and Berris that the proposed restaurant would result in increased crime rates, whereas Guan presented objective testimony that the public health and safety would not be endangered. Thus, the trial court determined that Guan objectively proved that the proposed restaurant would not endanger the public health or safety.
On appeal to this Court, Ford argues that the Board did not abuse its discretion in denying Guan's special exception application because its decision was supported by substantial evidence, and the Board did not err in placing the burden of proving that the proposed restaurant will not be detrimental to the health, safety, and welfare of the neighborhood on Guan.
II. Discussion
When the trial court does not take additional evidence, our scope of review is limited to a determination of whether the Board committed an abuse of discretion or an error of law in denying the special exception. Township of Birmingham v. Chadds Ford Tavern, Inc., 572 A.2d 855, 857 (Pa. Cmwlth. 1990). A court may find that the Board abused its discretion if its findings are not supported by substantial evidence. Id.
"The important characteristic of a special exception is that it is a conditionally permitted use, legislatively allowed if the standards are met." Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth. 1980). Zoning Code section 14-303(7)(e), pertaining to the Board's approval of special exception applications, provides as follows:
(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 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 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.
Zoning Code, §14-303(7)(e) (emphasis added).
(.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 proposed use fails to conform with the purpose, spirit, and intent of this Zoning Code.
In accordance with the Zoning Code, an applicant who has submitted a special exception application to the Board has the initial burden of proving that the proposed use meets all of the Zoning Code's criteria and conditions applicable to the proposed use. Zoning Code, §14-303(7)(e)(.1). The applicant also has the initial burden of proving that the proposed use will not detrimentally impact the neighborhood beyond what is normally expected from the proposed use pursuant to seven specific criteria. Zoning Code, §14-303(7)(e)(.2). If the applicant meets this initial burden, the objectors, if there are any, have the burden of proving that the proposed use will detrimentally impact the health, safety, and welfare of the neighborhood beyond what is normally expected from the proposed use and may present evidence, and have the burden of proof, that the proposed use does not conform with the purpose, spirit, and intent of the Zoning Code. Zoning Code, §14-303(7)(e)(.3). If the applicant meets his burdens and/or the objectors fail to meet their burden, the Board shall grant the special exception application as of right. Zoning Code, §14-303(7)(e).
A. Burden of Proving Special Exception Criteria
Ford argues that the trial court erred in reversing the Board's decision. Specifically, Ford states that the Board's determination that Guan did not meet his burden of proving that the proposed restaurant would not impair or permanently injure the use of adjacent conforming properties, pursuant to Zoning Code section 14-303(7)(e)(.2)(.e), and endanger the public health or safety by fire or other means, pursuant to Zoning Code section 14-303(7)(e)(.2)(.f), was supported by evidence in the record. A special exception is permitted as long as the conditions set forth in the ordinance are met. Bray. In this case, Guan presented evidence of the safety and sanitation measures that he would put in place so that the proposed restaurant would not impair or permanently injure the use of the adjacent conforming properties or endanger the public health or safety by fire or other means.
First, the applicant bears the initial burden of proving that the proposed use meets the criteria found in the Zoning Code. Here, Guan presented testimony and evidence demonstrating that he will install a commercial kitchen with an exhaust system that will be constructed out of the side of the building; maintain hours of operation from 11:00 a.m. until 1:00 a.m., seven days a week, which are the same as the hours of operation for the convenience store; have a commercial trash service pick up the trash stored in the rear of the building on the first floor twice a week; and have a recycling company remove all cooking oils that will be stored in a container according to the Department of Health's requirements. (Board's Findings of Fact Nos. 10-14.) As noted by the trial court, there is no evidence of record from the adjacent property owners being opposed to the proposed restaurant. The vast majority of evidence presented was of neighbors' support.
An applicant is not required to negate "every conceivable and unvoiced objection to the proposed use. That would be an unreasonable burden." Butler v. Derr Flooring Company, 285 A.2d 538, 542 (Pa. Cmwlth. 1971). This evidence set forth by Guan demonstrates that he will implement procedures to ensure that the proposed restaurant will not detrimentally impair the adjacent conforming properties or be a fire hazard or otherwise detrimentally impact the neighborhood beyond what is normally expected from a takeout restaurant in this neighborhood. Based on the evidence in the record, we conclude that the trial court had sufficient basis to find the Board abused its discretion in determining that Guan failed to meet his initial burden.
B. Burden of Proving Detriment to Health , Safety, and Welfare of
Neighborhood
Ford further asserts that the Board correctly placed the burden on Guan to prove that the proposed restaurant will not be detrimental to the health, safety, and welfare of the neighborhood beyond what is normally expected, because Zoning Code section 14-303(7)(e)(.2)(.f) provides for the burden to shift to Guan.
It is well settled that an applicant has the initial burden to demonstrate that the proposed use complies with the terms of an ordinance that govern the grant of a special exception. Bray. As we stated in Bray:
Thus an applicant, by showing compliance with the specific requirements of the ordinance, identifies the proposal as one which the local legislation expressly designates to be appropriate in the district and therefore presumptively consistent with the promotion of health, safety and general welfare; hence, it is logical that . . . the Pennsylvania decisions have placed on the objectors the "burden" of
showing the proposal to be detrimental to public health, safety and welfare.410 A.2d at 911 (emphasis added). We also held in Bray that a zoning ordinance may properly shift the burden of persuasion to the applicant regarding whether the proposed use has a detrimental impact on the public health, safety, and welfare but can never shift the initial duty of presenting evidence to applicants concerning the public health, safety, and welfare, and, thus, this duty always remains with the objectors.
In Bray, we explained that in Butler, even where the zoning ordinance specifically shifted the burden of persuasion regarding whether the proposed use was detrimental to the public health, safety, and welfare to the applicant, the duty to present evidence on this issue remained with the objectors. We noted that even language in an ordinance which directly places the "burden of proof" upon an applicant as to whether a proposed use is detrimental to the public health, safety, and welfare actually places only the persuasion burden on the applicant. It is clear that "the objector retains the evidence presentation duty as to such matters." Bray, 410 A.2d at 912. In this case, the Zoning Code specifically places the burden of proving that the proposed restaurant detrimentally impacts the health, safety, and welfare of the neighborhood beyond what is normally expected on the objectors, and, thus, the objectors have both the burden of production and persuasion. Zoning Code, §14-303(7)(e)(.3).
Here, once Guan met his initial burden of proving that the proposed restaurant met all of the criteria in the Zoning Code for the grant of a special exception, the Zoning Code specifically placed the burden of proving that the proposed restaurant would be detrimental to the health, safety, and welfare of the neighborhood "exceeding that which normally might be expected from the proposed use" on the objectors. Zoning Code, §14-303(7)(e)(.3). In order to do so, the objectors must prove to the Board to "a high degree of probability that the proposed use will substantially affect the health, safety and welfare of the community greater than what is normally expected from that type of use and not just speculation of possible harms." Sunnyside Up Corporation v. City of Lancaster Zoning Hearing Board, 739 A.2d 644, 650 (Pa. Cmwlth. 1999) (citation and quotations omitted) (emphasis added).
The objectors provided no evidence beyond their speculative testimony. Ford testified only that she was concerned about having multiple takeout restaurants within the same area and that the neighborhood needs healthier food options. (R.R. at 70a-71a.) Roberts and Berris both speculated that a takeout restaurant would increase the illegal drug activity in the area, but provided no evidence to support their assertions. (R.R. at 74a-77a.) Berris also acknowledged that illegal activity occurs throughout the neighborhood and not just near the convenience store location. (R.R. at 76a.) The objectors did not present any evidence that the proposed restaurant would have a different impact than a similar restaurant a block away. The objectors' mere speculative testimony is not sufficient to meet their burden. Sunnyside Up, 739 A.2d at 651 ("[T]he testimony was mere speculation . . . which fell short of the 'high degree of probability' of a substantial affect [sic] on the community required . . . ."). The Board's decision was based on this speculative testimony. Thus, the Board abused its discretion in determining that Guan failed to meet his burden of proving that the proposed restaurant does not detrimentally impact the health, safety, and welfare of the neighborhood beyond what is normally expected, because the objectors had the burden of proving detrimental impact to the health, safety, and welfare of the neighborhood, which they never met. Sunnyside; Bray.
Based on our determination that the objectors did not meet their burden of proving that the proposed restaurant would be detrimental to the health, safety, and welfare of the neighborhood, we need not address Ford's assertion that the trial court erred in finding that the objectors should have presented expert testimony in support of their claims. However, in this case, the trial court did not hold that the objectors had a duty to present expert evidence. The trial court simply found that "[Ford] presented no evidence to corroborate [her] claim[s]." (Trial court op. at 10.) --------
III. Conclusion
Because the record reflects that Guan presented substantial evidence to meet his initial burden and the objectors did not present any evidence beyond speculative testimony to meet their burden, the Board abused its discretion in denying Guan's special exception application. Accordingly, we affirm the trial court's order reversing the Board's decision.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of June, 2015, the August 6, 2014 order of the Court of Common Pleas of Philadelphia County is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge