author: CEISLER, /.,

text:
    Manayunk Neighborhood Council Inc. v. Philadelphia Zoning Board of Adjustment

      Henry Louis Schirmer, for appellant.

      Vernon T. Anastasio, for appellee Federal National Mortgage.
    Sept. 19, 2014
   CEISLER, /.,

The instant appeal arises from this court’s July 2, 2014 order, denying a statutory appeal filed by appellants Manayunk Neighborhood Council, Inc. (“MNC”) and John Hunter, MNC’s Vice President, thereby affirming appellee Philadelphia Zoning Board of Adjustment’s (“ZB A”) decision to grant Intervening appellee Daniel Kane’s request for a use variance to transform residential property from a three-family dwelling into a duplex.

I. FACTS AND PROCEDURAL HISTORY

Intervening appellee Daniel Kane purchased a property located at 4221 Boone Street, Philadelphia, Pennsylvania (“Boone Street” or “Property”). Though the Property was zoned for use as a single-family residence, it had previously been illegally converted into a triplex by a prior owner. Certified record, 1/30/14, pt. 1 at 9-10; see also certified record, 1/30/14, pt. 2 at 4 (property sale agreement). Thereafter, Vem Anastasio, Mr. Kane’s lawyer, filed an application with the City of Philadelphia’s Department of Licenses and Inspections (“L&I”), in which he requested that L&I grant a variance and legalize Boone Street’s current status as a three-family dwelling. Certified record, 1/30/14, Part 1 at 4, 58. L&I denied the application on January 11, 2013, noting that “[t]he proposed use [Qthree family dwelling[)] is not permitted in this zoning district.” Id. at 4-5, 58.

Mr. Anastasio appealed this decision to the ZBA on January 25, 2013, noting that “physically, [Boone Street] is outfitted as a three-family dwelling,” that his client “was not responsible for said layout,” and that they were merely seeking to legalize a “nonconforming, preexisting use.” Id. at 59-60. On June 17, 2013, Mr. Anastasio submitted a letter to the ZBA which informed the ZBA that he had reached an agreement with Boone Street’s neighbors wherein the neighbors had agreed to support the appeal, so long as Mr. Kane converted the property into a duplex rather than maintain it as a triplex; that Mr. Kane promised to have the Property managed by a local company, and that Mr. Kane agreed “to work to ensure [that] the [Property is kept in a clean, safe and secure condition at all times.” Certified record, 1/30/14. pt. 2 at 41-42; see also id. at 1 (petition signed by neighbors in support of Anastasio’s modified appeal). Despite this support of the Boone St. neighbors, MNC, the area’s registered community organization, remained opposed to the property being used as anything but a single-family home. Id. at 43-51.

On June 18,2013, the ZBA convened a hearing regarding the Boone Street appeal. Mr. Anastasio presented the ZBA with interior and exterior photographs of the Property, as well as a packet containing, among other things, a proposed duplex development plan for Boone Street, information regarding the area’s housing stock, and his aforementioned June 17,2013 letter to the board. Certified record. 1/30/14, Part 1 at 36, 55-66; certified record, 1/30/14. Part 2 at 1-31. Mr. Anastasio then reiterated that Mr. Kane was now seeking permission to turn Boone Street into a duplex, and answered preliminary questions posed by the ZBA panel. Certified record, 1/30/14, Part 1 at 36-37. This was followed by testimony from Mr. Kane, who discussed the physical nature of Boone Street and stated that it would be extremely difficult to turn the Property into a single family dwelling. As Mr. Kane explained, since Boone Street is

currently laid out as a triplex, the home does not orient itself well being converted to a single family. A typical single-family home, row home in this case, stairwells and common hallways connect the rooms. The way the house is currently laid out, the stairway is interior to the home and the common hallways are along the exterior party walls, which essentially creates landlocked rooms in the event it were converted to a single family [home].

Id. at 38. In addition, Mr. Kane described his negotiations with the local community regarding Boone Street, and opined that the previous owner’s apparent struggle to sell the property was directly related to its configuration as an unlawful triplex. Id. The board then heard from Daryl Davidson, who lives next door to Boone Street and spoke in support of Mr. Kane’s duplex plan. Id. at 39-41. Further evidence was presented that 11% of the area properties were multifamily, and that the property had been vacant for three years. Certified record. 1/30/14, Part 2 at 7. Finally, Mr. Hunter testified that his organization was opposed to permitting Boone Street to remain a triplex, as well as to allowing Mr. Kane to turn the property into a two-family dwelling. Certified record, 1/30/14, Part 1 at 42-45. The hearing concluded with the board voting 4-1 in favor of granting the requested variance, with the proviso that Boone Street be renovated and legalized as a duplex, rather than a three-family dwelling. Id. at 45; Certified record. 1/30/14. Part 2 at 57. The ZB A stamped Mr. Kane’s Boone Street duplex plans on June 26, 2013, thereby signifying its approval, Certified record, 1/30/14, Part 1 at 29-33, and reaffirmed its June 18, 2013 decision on July 9, 2013 via an identical 4-1 vote. Certified record, 4/24/14. Part 1 at 1-2; Certified record, 4/24/14, Part 2 at 1-3.

On July 18,2013, appellants appealed the ZBA’s ruling to the Philadelphia Court of Common Pleas. Federal National Mortgage (“FNM”) then intervened in the appeal via praecipe on August 23, 2013. The ZB A filed a motion for extraordinary relief on December 2, 2013, which this court granted on December 16, 2013, thereby setting the filing deadline for as February 14, 2014 for appellants’ brief, March 14, 2014 for the appellees’ respective briefs, and the hearing date as March 26, 2014. Ceisler order, 12/16/13 at 1. Subsequently, FNM filed a motion to dismiss on February 28, 2014, in which it asked this court to quash the appeal due to appellants’ failure to file their brief by this deadline, or otherwise articulate the basis for their appeal. Motion to dismiss at 3-6.

OnMarch 10,2014, FNMfiled amotion for extraordinary relief, through which it asked for additional time to file its own brief, and that the appeal hearing be rescheduled, so as to allow this court enough time to rule upon FNM’s motion to dismiss. FNM’s motion for extraordinary relief at 2. This court granted FNM’s motion for extraordinary relief on March 17,2014, setting the new due date its brief as April 21, 2014, and pushing the hearing date back to May 7, 2014. Ceisler order. 3/17/14 at 1.

Appellants responded to FNM’s motion to dismiss on March 25, 2014, maintaining that the ZBA had “not mailed out notice of [its] July 9, 2013 decision and vote, therefore the appeal period has not yet begun to run... [as] [w]ithout a full decision from the... Board, which at a minimum must reveal the vote, there is no valid decision.” Appellants’ brief in opposition to the motion to quash at 3. Appellants supplemented this response the following day by filing a “new matter to the motion to quash,” in which they argued that FNM did not have standing to contest their appeal. Appellants’ new matter to the motion to quash at 1. FNM then filed a motion to amend caption on April 1,2014, in which it averred that, as Mr. Kane owned Boone Street, he should be substituted in FNM’s place as the intervening appellee. Motion to amend caption at 2. On April 4, 2014, this court docketed an order denying FNM’s motion to dismiss, further stating that the ZBA was required to “file with the court a supplemental certified copy of the record with regards to any proceeding(s) that occurred on July 9,2013 and/or file with the court a sworn affidavit explaining any discrepancies with regards to any proceeding(s) that occurred on July 9,2013,” and to do so “on or before April 25,2014.” Ceisler order, 4/3/14 at 1. In addition, this court gave the appellants until May 9, 2014, and appellees until May 30, 2014, to file their respective briefs, and rescheduled the appeal hearing for July 2,2014. Id. On April 24,2014, the ZB A complied with this court’s April 3,2014 order by supplementing the certified record. Therein, the board explained that the July 9,2014 vote had been conducted for exclusively housekeeping purposes, in order to make clear that the ZBA had approved the Boone Street plans which had been stamped on June 26, 2014, ones which were identical to those approved by the board through its June 18, 2013 hearing. Certified record, 4/24/14, part 1 at 1-2. Subsequently, this court granted FNM’s motion to amend caption on May 29, 2014, thus adding Mr. Kane as an intervening appellee; however, this court declined to allow FNM to remove itself from the appeal. Ceisler order, 5/29/14 at 1.

Despite the clear language of this court’s April 3, 2014 order, appellants failed to comply with its terms, instead waiting to file their brief until the night before the scheduled oral argument. See N.T. 7/2/14 at 3-4. At the July 2, 2014 hearing, appellants attempted to explain this failure, stating, in essence, that they had been confused about whether FNM or Mr. Kane was the correct intervening appellee, and that it was not until this court had ruled on FNM’s motion to amend caption that they had been able to properly prepare their brief. Id. at 4-5. This court responded that appellants had been given ample time to prepare and submit a brief, and that, in any event, this excuse was not valid or reasonable, given that the only issue before this court was whether the ZBA had properly granted the aforementioned use variance. Id. at 5 Finding the remainder of appellants’ arguments on appeal to be incoherent and unpersuasive, this court denied their appeal at the end of the hearing, thereby affirming the ZBA’s decision to grant the Boone Street duplex variance.

MNC appealed this court’s decision to the Commonwealth Court on August 4, 2014. On August 5, 2014, this court issued an order directing MNC to provide a statement of errors (“statement”) pursuant to Pa. R. A.P. 1925(b); appellant’s response was received by this court on August 26, 2014 and is attached to this opinion as Appendix A.

II. STANDARD OF REVIEW

Since the instant appeal involves an appeal from a local agency, the ZBA, this appeal is governed by the Local Agency Law, which reads in pertinent part, “[i]n the event a foil and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency.” 2 Pa. C.S. $754(b). “A ‘foil and complete record’ is defined as ‘a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal and, also, that the appellate court is given a sufficient record upon which to rule on the questions presented.’” In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. Ct. 2006) (quoting City of Philadelphia v. Bd. of License and Inspection Review, 590 A.2d 79, 86 (Pa. Cmwlth. Ct. 1991)). Where such a record exists, “appellate review of [final agency adjudication] is limited to determining whether constitutional rights have been violated, an error of law has been committed or findings of fact necessary to support the adjudication are not supported by substantial evidence.” Lewis v. Civil Serv. Comm’n, 542 A.2d 519, 522 (Pa. 1988); Kosanovich v. Retirement Bd. of Allegheny Cnty., 724 A.2d 420 n. 1 (Pa. Cmwlth. Ct. 1999) (same); see also Banks v. Civil Serv. Comm’n, 708 A.2d 890, 891 n. 1 (Pa. Cmwlth. Ct. 1998) (citing Republic Steel Corp. v. Workmen’s Comp. Appeal Bd., 421 A.2d 1060 (Pa. 1980)) (“[I]n order to reverse the decision of an administrative agency, [an appellate court] must conclude that the findings of the agency are totally without support in the record.”).

A court reviewing a decision of an administrative agency should be reluctant to measure and assess the multitude of factors and considerations that support an administrative agency’s decision. See Cohen v. Zoning Bd. of Adjustment, 276 A.2d 352, 355 (Pa. Cmwlth. Ct. 1971). Stated differently, where the reviewing court takes no additional testimony, the court should exercise self-restraint and avoid substituting its own opinions for the decision of local officials. Id. “It is, after all, the sole function of the board, in the performance of its role as fact finder, to evaluate witness credibility and assign evidentiary weight.” Lower Allen Citizens Action Grp., Inc. v. Lower Allen Twp. Zoning Hearing Bd., 500 A.2d 1253, 1258 (Pa. Cmwlth. Ct 1985). The ZBA “as fact finder is the ultimate judge of credibility and resolves all conflicts in the evidence,” Eichlin v. New Home Boro. Zoning Board, 679 A.2d 1173, 1175 (Pa. Cmwlth. Ct. 1996), having “the power to reject even un-contradicted testimony if it finds it lacking in credibility.” Lower Allen, 500 A.2d at 1258.

This court determined that the certified record, as provided to it by the board, was full and complete, and thus that the appropriate standard of review for the matter before it was of the limited nature articulated in 2 Pa. C.S. §754(b).

III. DISCUSSION

This court respectfully requests that the instant appeal be denied for the following reasons:

1. The ZBA’s finding of unnecessary hardship was supported by substantial evidence, and was not purely economic in nature;
2. Mr. Kane did not create this unnecessary hardship;
3. The ZBA granted the minimum variance necessary to afford proper relief.

Pursuant to Philadelphia Zoning Code (“Code”), the board may grant an applicant’s request for a variance only where “denial of the variance would result in an unnecessary hardship.” Phila. Code § 14-303(8)(e)(.l) (.a). The code provides specific variance criteria that the applicant must satisfy, see Id. at §§ 14-303(8)(e), which the Pennsylvania Supreme Court has “boiled down into three key requirements, that of: 1) unique hardship to the property; 2) no adverse effect on the public health, safety or general welfare; and 3) the variance will represent the minimum variance that will afford relief at the least modification possible.” E. Torresdale Civic Ass’n v. Zoning Bd. of Adjustment of Philadelphia Cnty., 639 A.2d 446, 447 (Pa. 1994). The applicant bears the burden of proof, Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983), and must establish that they did not create the unnecessary hardship themselves. Phila. Code § 14-303(8)(e)(.1)(.a).

Despite these constraints, however, “an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose.” Marshall v. City of Philadelphia, 37 EAP 2013, 2014 WL 3579694 (Pa. July 21, 2014) (emphasis in original). Moreover, though “[m]ere economic hardship will not of itself justify a grant of a variance,” City of Pittsburgh v. Zoning Bd. of Adjustment, 559 A.2d 896, 903 (Pa. 1989), “[t]he board’s discretion is not so circumscribed as to require a property owner to reconstruct a building to a conforming use[,] regardless of the financial burden that would be incident thereto. Especially is this true where the change sought is from one nonconforming use to another more desirable nonconforming use that will not adversely affect but better the neighborhood.” O ’Neill v. Philadelphia Zoning Bd. of Adjustment, 120 A.2d 901, 904-05 (Pa. 1956).

In the instant matter, MNC challenges this court’s denial of its appeal, and affirmation of the ZBA’s decision, on three bases: “1. Any hardship [suffered by Mr. Kane] is purely economic... restoration to a single family dwelling [is] not impossible, but merely costly. 2. Any hardship is self inflicted [by Mr. Kane]... who knowingly sought to continue the illegal multifamily use [of Boone Street]. 3. “The relief granted [by the board] is not the minimum relief required. The prior use of a single family dwelling is the minimum reasonable use of the property. When choosing between use for 3 units, 2 units or 1 unit, 2 is not the minimum, 1 is the minimum.” Statement of errors at 2. This court will deal with each of these issues seriatim.

First, the certified record contains substantial evidence establishing that the Boone Street Property’s “unnecessary hardship” was not purely economic in nature. Indeed, this is not a situation where Mr. Kane sought a variance solely for the purpose of maximizing the return on his investment. See, e.g. Valley View, 462 A.2d at 640 (“[M]ere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance.”); O’Neill, 120 A.2d at 904 (“[T]he mere fact that the property would increase in value if a variance were granted, is not of itself a sufficient basis for a claim of unnecessary hardship.”); rather, as Mr. Kane argued to the ZBA, Boone Street’s layout is such that turning it into a single-family home would create interior access issues, whereby certain rooms would be “landlocked,” meaning that a variance was required for the property to be used in a feasible manner. Certified record, 1/30/14, Part 1 at 38. The board found Mr. Kane’s testimony to be credible, declaring that he had “demonstrated that it would be impracticable to revert the... Property back to a single-family dwelling due to the fact that it is configured as a three-family dwelling,” and that “the literal enforcement of the... Code against the... Property would result in an unnecessary hardship due to [its] physical surroundings and particular size and configuration.” Id. at 10; cf In re Petition of Dolington Land Grp., 839 A.2d 1021, 1026 (Pa. 2003) (citation omitted) (“The... Board as fact-finder is the sole judge of credibility with power to resolve conflicts in the testimony and to reject even uncontradicted testimony that it finds to be lacking in credibility.”). Accordingly, MNC’s first allegation of error is without merit, as there is substantial evidence within the certified record supporting the ZBA’s finding of unnecessary hardship.

Second, it is indisputable that one of Boone Street’s previous owners transformed the property in to an illegal triplex, and that Mr. Kane played no part in creating this unnecessary hardship. At the June 18, 2013 ZBA hearing, both Mr. Kane and Mr. Hunter testified that Boone Street was configured as a three-family home well before Mr. Kane’s purchase, a description which was bolstered by PECO records establishing that it maintained three separate private electrical meters at the property. Certified record, 1/30/14, Part 1 at 38, 43-44, 66. Thus, MNC’s second allegation of error is also baseless.

Finally, MNC’s third allegation of error is equally inaccurate. Bafflingly, MNC argues that the minimum variance necessitated by this situation is one which permits Mr. Kane to establish Boone Street as a single-family home. To state the obvious, since Boone Street was already zoned for use as a single-family home, such duplicative permission would neither accord relief from unnecessary hardship, nor constitute a variance. As already noted, the board found that it would cause Mr. Kane unnecessary hardship to force him to reconstitute Boone Street as a single-family home, due to the property’s interior layout; accordingly, the board chose to permit Mr. Kane to turn Boone Street into a duplex. Given the circumstances, allowing Boone Street to be used for two units of housing (rather than the code-permitted one) constituted the minimum variance necessary to afford relief to Mr. Kane, As such, MNC’s third allegation of error is unfounded.

IV. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

APPENDIX A

APPELLANT’S 1925 B STATEMENT OF ISSUES UPON APPEAL

I BRIEF PROCEDURAL HISTORY

This is appellant’s 1925(b) Statement of Matters on Appeal. On or about September 10,2012 the Philadelphia Dept, of License and Inspections [L&I] issued a violation notice for an illegal triplex conversion at 4221 Boone Street. At some point in time someone filed something claiming 4221 Boone was a legal non-conforming triplex. On January 11, 2013 L&I denied the request. On January 25, 2013 the denial was appealed to the Zoning Board.

On June 18, 2013 the Philadelphia Zoning Board of Adjustment held a hearing. At the hearing the owner abandoned the claim that 4221 Boone was a legal, nonconforming triplex. The owner claimed that the layout as an illegal triplex imposed an unnecessary hardship on the property which justified a duplex use. The Zoning Board issued the requested variance for a duplex. On July 18, 2013 this decision was appealed to the Philadelphia Common Pleas Court.

On July 3, 2014 the Philadelphia Common Pleas Court entered an order affirming the decision of the Zoning Board on the merits, indicating that the Zoning Board decision was supported by substantial evidence.

II ISSUES UPON APPEAL

The Honorable Court erred in affirming the Zoning Board for the following reasons:

1) Any hardship is purely economic. The Zoning Board received testimony that the prior owner’s conversion of the single family dwelling into an illegal triplex resulted in a physical hardship to the property. However, any hardship is merely economic; the current owner indicated that restoration to a single family dwelling was not impossible, but merely costly.
2) Any hardship is self inflicted. The Zoning Board received testimony that the prior owner’s conversion of the single family dwelling into an illegal triplex resulted in a hardship to the property. However any hardship arising from the illegal multi-family use is self inflicted. The hardship is self inflicted because it arises from the intentional acts of an owner who knowingly created the illegal multi-family use. The intentional act of purchasing an illegal multi-family dwelling is also a self inflicted hardship. Any hardship is self inflicted because it arises from the intentional acts of an owner who knowingly sought to continue the illegal multifamily use.
3) The relief granted is not the minimum relief required. The prior use of a single family dwelling is the minimum reasonable use of the property. When choosing between use for 3 units, 2 units or 1 unit, 2 is not the minimum, 1 is the minimum.

      . The certified record fails to establish exactly when this sale occurred, or from whom Mr. Kane purchased Boone Street; however, Federal National Mortgage averred that it conveyed the Property to Mr. Kane on April 26, 2013. Motion to amend at 2, Ex. C.

      . The certified record neither includes the application itself, nor any specific information establishing the date upon which this permit application was filed. See certified record, pt. 1 at 1.

      . This second vote created some confusion, as MNC argued at one point in its filings with this court that the July 9,2013 vote had approved a plan that was different than that approved at the June 18,2013 hearing. See MNC’s joinder to motion for extraordinary relief at 1; however, this line of attack was abandoned once it became dear that the July 9, 2013 vote was for procedural and housekeeping purposes, and was not a new, substantive ruling. See certified record. 4/24/14. Fart 1 at 1-2.

      . Appellants belatedly joined in this Motion on March 20, 2014, arguing that the ZBA had made a new ruling regarding Boone Street “on or around June 26, 2013 and July 9, 2013,” but had neither publically announced the decision, nor “provide[d] a coherent record.” MNC’s joinder to motion for extraordinary relief at 1. Accordingly, appellants requested that the matter be remanded to the board. Id.

      . Appellants filed a response in opposition on April 22,2014, while FNM filed a reply in support of its motion to amend caption on May 9, 2014.

      . THE COURT: “So Mr. Schirmer, first of all, I just want — this case when I was preparing there was no brief.” MR. SCHIRMER: “Yes, Your Honor. The brief went in yesterday.” THE COURT: “I’m in court. I was in court all day. So I haven’t read your brief and it’s Sate. So, theoretically, you waived all your issues on appeal.”

      . THE COURT: “What does this have anything to do with whether or not an unnecessary hardship was presented at the zoning board, that’s the issue here, to try to get variance for a three-unit dwelling. It was amended voluntarily or by proviso. It had a two unit one. I remember the entire record. I read the notes of testimony. There was evidence of what would happen to try to make it into a single-family home. That’s the only real issue. Did the zoning board commit an error of law, was their determination to grant a variance supported by substantial evidence or was this some type of constitutional violation.”

      . It must be noted that appellants’ brief is severely defective, in that it contains numerous arguments, statements of fact, and exhibits that appellants did not raise before, or submit to, the ZBA. See, e.g. Appellants’ brief at 3 (alleged picture of interior of 4219 Boone Street, which MNC alleges has the same layout as the property); id. at 4-5, 9-10 (discussing Boone Street’s age, construction, and alleged use over the years); id. at 7-8 (providing an alternate explanation for the previous owner’s inability to quickly sell Boone Street, and accusing Mr. Kane of making false statements before the ZBA). Appellants attempt to get around the strictures of the Local Agency Law, see § II, infra, by arguing in the brief that this court should take “judicial notice” of this wealth of additional information; however such an argument utterly misapprehends the nature, and proper use, of this doctrine. See HYK Const. Co. v. Smithfield Twp., 8 A.3d 1009, 1017 (Pa. Cmwlth. Ct. 2010) (“Although a court may take judicial notice of a fact, a ‘judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ Pa. R.E. 201(b). Disputed questions of fact are not within the domain of judicial notice. Haber v. Monroe County Vocational-Technical School, 442 A.2d 292 (Pa. Super. Ct. 1982); [Chaplin v. Pelton. 423 A.2d 8 (Pa. Super. Ct. 1980)]. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice. Pa. R.E. 201(e); see Commonwealthv. Covert, 469 A.2d 248, 251 (Pa. Super. Ct. 1983) (“judicial notice should not serve to deny the opposing party the chance to disprove the fact sought to be judicially noticed”). Judicial notice itself does not necessarily establish a fact. In Interest of D.S., 622 A.2d 954 (Pa. Super. Ct. 1993). Judicial notice of a fact, when correctly taken, constitutes evidence, which like any evidence, may be rebutted. Id.”).

      . While the order denying the petition was dated July 2, 2014, and docketed that same day, notice was not provided to the parties until July 3, 2014. Thus, the 30-day appeal period began running on July 3, 2014, and as August 2 and 3 were weekend days, the final day to submit a timely appeal was August 4,2014. See Pa. R.A.P. 108(b); Frazter v. City of Philadelphia, 735 A.2d 113, 115 (Pa. 1999).

      . (e) Criteria for approval.
      The Zoning Board shall grant a variance only if it determines that the applicant has demonstrated that the criteria of this § 14-303(8)(e) (Criteria for approval) have been met and that any applicable criteria in §§ 14-303(8)(f) (Additional criteria for floodplain variances) through 14-303(8)(h) (Additional criteria for height variances near the airport) have been met. Otherwise, the Zoning Board shall deny the variance.
      (.1) General criteria.
      The Zoning Board may grant a lesser variance than requested, and may attach such reasonable conditions and safeguards as it may deem necessary to implement this Zoning Code, including without limitation a limitation on the size or duration of the variance, consistent with § 14-303(9) (Conditions on approvals). The Zoning Board shall, in writing, set forth each required finding for each variance that is granted, set forth each finding that is not satisfied for each variance that is denied, and to the extent that a specific finding is not relevant to the decision, shall so state. Each finding shall be supported by substantial evidence. If the Zoning Board chooses to view the subject property as part of the hearing, the Zoning Board must provide due process. Reports of other city agencies made as a result of inquiry by the Zoning Board shall not be considered hearsay. Upon request of any party, the Zoning Board may compel the attendance of the city agency. The Zoning Board shall grant a variance only if it finds each of the following criteria are satisfied:
      (.a) The denial of the variance would result in an unnecessary hardship. The applicant shall demonstrate that the unnecessary hardship was not created by the applicant and that the criteria set forth in § 14-303(8)(e)(.2) (Use variances) below, in the case of use variances, or the criteria set forth in § 34-303(8)(e)(.3) (Dimensional variances) below, in the case of dimensional variances, have been satisfied;
      (.b) The variance, whether use or dimensional, if authorized will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue;
      (.c) The grant of the variance will be in harmony with the purpose and spirit of this Zoning Code;
      (.d) The grant of the variance will not substantially increase congestion in the public streets, increase the danger of fire, or otherwise endanger the public health, safety, or general welfare;
      (.e) The variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property;
      (.f) The grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park, or other public facilities; (.g) The grant of the variance will not adversely and substantially affect the implementation of any adopted plan for the area where the property is located; and
      (.h) The grant of the variance will not create any significant environmental damage, pollution, erosion, or siltation, and will not significantly increase the danger of flooding either during or after construction, and the applicant will take measures to minimize environmental damage during any construction.
      (.2) Use Variances.
      To find an unnecessary hardship in the case of a use variance, the Zoning Board must make all of the following findings:
      (.a) That there are unique physical circumstances or conditions (such as irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions) peculiar to the property, and that the unnecessary hardship is due to such conditions and not to circumstances or conditions generally created by the provisions of this Zoning Code in the area or zoning district where the property is located;
      (.b) That because of those physical circumstances or conditions, there is no possibility that the property can be used in strict conformity with the provisions of this Zoning Code and that the authorization of a variance is therefore necessary to enable the viable economic use of the property;
      (.c) That the use variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
      (.d) That the hardship cannot be cured by the grant of a dimensional variance.
      (.3) Dimensional variances.
      To find an unnecessary hardship in the case of a dimensional variance, the Zoning Board may consider the economic detriment to the applicant if the variance is denied, the financial burden created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.

      . The code iteration addressed in East Torresdale was repealed and replaced by a new version that went into effect on August 22, 2012; however, it is this court’s belief that the thrust of the new code, as it pertains to variances, is substantially similar to that of the old code, and that, as such, the Pennsylvania Supreme Court’s distillation of the applicable criteria is still accurate.


source: Caselaw Access Project

author: HODGE, J,

license: Public Domain

text:
    Nieto v. Hawk

      C.P. of Lawrence County,
    No. 10015 of 2006, C.A.

      Deborah L. Smith, for plaintiff.

      Jean K. Perkins, for defendant.

      Joanne D. Nene, for guardian ad litem.
    Sept. 29, 2014
   HODGE, J,

Before the court for disposition is defendant’s petition to modify current custody order and defendant’s petition for special relief.

The plaintiff, Cathy Sue Nieto (hereinafter, “mother”), and the defendant, Jason Michael Hawk (hereinafter, “father”) are the natural parents of the subject minor children, H.S.H., bom September 12, 2000, and M.L.H., bom September 20, 2003. The minor children were bom during the course of the parties’ marriage. Mother and father were divorced in June of 2007. Since the parties’ separation, mother has been the primary custodian. The children attend school in the East Palestine City School District, and they have exclusively attended school within that district.

Following the parties’ divorce, mother remarried Edgard Nieto (hereinafter, “stepfather”). Mother and stepfather have a nine-month-old son, Edgard Nieto, Jr. Father also remarried. Father and father’s wife, Leah Hawk (hereinafter, “stepmother”) have an infant daughter.

The current custody order provides mother with primary physical custody. Father enjoys partial custody of the minor children every other weekend during the school year and extended visitation during the summer months. On July 9, 2014, father filed the instant petition to modify current custody order, and this case was scheduled for a custody conciliation conference. Moments before the parties attended the conference, mother’s counsel advised Father’s counsel that the parties’ oldest child had suicidal ideations. Although the child’s intentions stemmed back to January of 2014, mother only recently became aware of them. Mother delayed telling father because the child expressed that “she was not feeling that way anymore.” Father, however, was veiy concerned about H.S.H.’s disclosures and filed a petition for emergency special relief. The court consolidated father’s request for modification of custody and petition for special relief, and a hearing was scheduled for September 4,2014. The court scheduled further hearings for September 5, September 12 and September 18, 2014. Each of father’s petitions are now properly before the court for consideration.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor children. 23 Pa.C.S.A. §5327(a); K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id. Specific factors that a court must consider are set forth in 23 Pa.C.S.A. §5328(a); see also B.K.M. v. J.A.M., 50 A.3d 168 (Pa. Super. 2012) (holding that “best interests of the child” analysis requires consideration of all Section 5328(a) factors). The court will address each of these factors in the following discussion.

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

Father and mother both encourage and permit contact between the other party and the children. When mother has custody of the children, the children are permitted to contact father and vice versa. Prior to these proceedings, the parties entered into a consent order, dated May 21, 2014. Each party has demonstrated an ability to comply with the provisions of their consent order, but father contends that mother displays a more rigid approach to the parties’ shared custody arrangement and is not as flexible as father in resolving requests to alternate or modify the current order. Alternatively, mother stated that there have been instances where father has been offered additional custody and declined to receive the children because his work schedule precluded him from exercising custody.

Overall, the court finds this factor to weigh equally in its determination. A more flexible custody arrangement could only occur if the parties overcame the communication barrier between them. Consequently, the corresponding order of court will direct the parties to attend co-parenting/ communication counseling.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

There is insufficient evidence to warrant and present finding of abuse by either party against the other. There was a protection from abuse order against father on mother’s behalf, issued on September 5, 2007; this order expired after one year.

The court has present concerns that mother and stepfather demonstrate an unhealthy relationship. Mother’s relationship with stepfather seems to be the driving force behind father’s request for primary custody. Father is concerned about the negative effect mother’s relationship with stepfather has on the children. Father is also concerned that stepfather is not an appropriate role model for the minor children.

(3) The parental duties performed by each party on behalf of the child.

Both mother and father perform all the necessary tasks associated with raising young girls. Mother and father each demonstrate a willingness to care for the children and assist the children in completing schoolwork and attending school activities. Mother has consistently been the primary caregiver for the minor children, and she has assumed a majority of the responsibility of taking the children to doctor appointments, school events and activities, and attending to the children on a more frequent basis. This factor, therefore weighs in mother’s favor.

(4) The need for stability and continuity in the child’s education, family life and community life.

Given the emotional instability the children are currently experiencing, the court believes that its determination must especially attend to the children’s need for stability and continuity. If the court were to award mother primary custody, the court’s finding would be consistent with the histoiy of this case. However, the court is concerned that the children are not being provided with an emotionally stable home environment at mother’s residence. The court’s concern is based upon the concerns presented by father, the guardian ad litem and the minor children.

If father were to be awarded primary custody, this would be the first time father assumed responsibility for the children on a primary basis, despite the fact that father has consistently exercised custody of the children on a frequent basis, as provided in the prior orders granting father partial custody. Additionally, the children are very comfortable at father’s residence. The real draw-back, however, with father being awarded primary custody, is that a change in custody would cause the children to switch school districts. The court is concerned with the effect that this would have on the children given the circumstances of this case. Father and stepmother attempted to address this concern by stating that stepmother has two nieces and a nephew in the New Castle Area School District. Stepmother’s nieces and nephew are close in age to H.S.H. and M.L.H. Father and stepmother stated the children would be available to help Haileigh and Mykenzee transition into a new school district.

Overall, there are positive factors relating to the children’s needs for stability and continuity with either parent exercising primary custody, but the court concludes that the benefits gained by the children with father enjoying primary custody outweigh any necessary, yet temporary, disruptions to their schooling. Therefore, this factor weighs in father’s favor.

(5) The availability of extended family.

Both mother and father have large extended families available to them to assist in caring for the minor children. The minor children have close relationships with their grandparents, aunts, uncles and cousins from their maternal and paternal families. Therefore, this factor weighs equally in favor of mother and father.

(6) The children’s sibling relationships.

H.S.H. and M.L.H. have been described and appear to the court as close siblings. The testimony offered by the children is consistent with this conclusion. The youngest child, closely associates her desires with H.S.H.’s, and the court believes that any custody arrangement needs to accommodate the children’s relationship with one another. Additionally, mother and stepfather have a newborn child, and father and stepmother have a newborn child. H.S.H. and M.L.H. offered a positive response to both of their half-siblings, and the court would like to see these relationships maintained, regardless of which parent is awarded primary custody.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

The testimony offered by Father indicates that his request for modification of custody was based upon the children’s desire to live primarily with him. The children expressed this desire to father and attorney Nene, the children’s guardian ad litem, consistently, prior to the custody hearing. When the children testified, however, they indicated that they wanted to remain primarily in mother’s custody. Mother indicated that she believes the children’s statements are attributable to the children’s desire to please both of their parents. The minor children were very emotional and visibly upset when they spoke to the vourt, and the court is suspicious of whether mother or father attempted to influence the children’s testimony. For these reasons, the court must limit the credibility afforded to the children’s testimony regarding their custodial preferences in reaching a determination.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

The testimony presented did not include evidence to support a finding regarding a party’s attempt to turn the children against the other parent. The court will not consider this factor in its determination.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

This factor is extremely influential in the court’s determination. It was very apparent to the court when speaking with the minor children that they are going through a lot of emotional issues, especially Haileigh. The children indicated that mother’s relationship with stepfather can be aggressive, and that when mother and stepfather fight, the children are intimidated. Additionally, the court is unclear that the children are receiving positive emotional support from stepfather based upon the children’s indication that their stepfather is mean to them, and that they are afraid of stepfather.

The court believes that father’s household is more emotionally stable because the testimony of father, stepmother and the children constantly indicated a positive relationship between all members of father’s household. Furthermore, stepmother testified that she has a good relationship with the children and is willing to support father in his quest for primary custody.

After reflecting on the testimony and circumstances of this case, the court is very concerned about the emotional welfare of the children. In most respects, the children are thriving; academically, socially and physically. On the other hand, H.S.H. is acting in a concerning manner by speaking about suicide and lying as to events occurring between mother and stepfather. What is also perplexing is that even though H.S.H. seems to be struggling on an emotional level, the younger child, M.L.H., who is described as strong minded and perseverant, perceives H.S.H. in an idealistic manner.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

In this portion of the court’s analysis, the court would like to address the issues raised in father’s emergency petition for special relief, regarding H.S.H.’s admissions that she had previously considered suicide.

When this issue was first brought before the court, father raised serious concerns about H.S.H.’s statements to mother and about mother’s failure to inform father of the same. Mother’s counsel acknowledged that there was a delay in mother informing father, but reasoned that the issue should not be considered an emergency because H.S.H.’s statements related back to thoughts she was experiencing in January of 2014. Mother’s counsel also stated that mother was concerned, and her concerns were then confirmed, that father would use this information against mother at the upcoming custody conference.

After considering all of the circumstances relating to H.S.H.’s suicidal ideations, the court is convinced that for whatever reason, H.S.H. is acting out in a manner inconsistent with her current academic and social success. The court believes that it was error for mother to minimize H.S.H.’s statements because if nothing else, it was a cry for help and attention, which must be taken seriously. Both mother and father are very fortunate that H.S.H. is presently enrolled in counseling, and that her outcries never manifested themselves in a more substantive manner.

(11) The proximity of the residences of the parties.

The parties reside approximately forty minutes apart. They live in different states and different school districts. While the court does not believe the distance between mother’s residence and father’s residence creates a substantial impairment to either party’s ability to exercise custody, it does require one parent to enjoy primary custody.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

The court is satisfied that both parties are able to care for the minor children while they are in their custody, or make appropriate arrangements if the parent is unavailable. Given the parties’ desire to maximize their time with the minor child, the corresponding custody order shall include a provision that grants the non-custodial parent with the right of first refusal if the custodial parent is unavailable for an extended period of time.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

Mother and father each display resistance in communicating with the other party. Each party also berates the other for their respective faults and values. However, each parent expressed a desire to improve their ability to communicate with the other, and for this reason, the court shall direct the parties to begin co-parenting and communication counseling. The court believes that if the parties establish better communication skills, their level of cooperation will improve and the children’s best interests will be served.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

There was no evidence present with respect to drug or alcohol abuse by either party. Therefore, this factor will not be included in the court’s determination.

(15) The mental and physical condition of a party or member of a party’s household.

Mother and father did not present any evidence to this court, which questioned the mental and physical condition of the opposing party. Mother and father both appear physically healthy, and emotionally stable. Therefore, this factor will not be included in the court’s determination.

Having fully addressed the statutoiy factors proscribed by 23 Pa.C.S.A. §5328(a) and 23 Pa.C.S.A. §§5337(h), the court extends its analysis by discussing the following issues surrounding this custody action.

Mother and father each demonstrate an ability and desire to care for the minor children. The court is convinced that each parent genuinely loves H.S.H. and M.L.H. Further, each parent has established a home for the girls and have extensive support systems in place to help them. Mother and father even have the good fortune of being in relationships with people who want to assist them in raising the subject minor children. But despite all these positive factors, the children are emotionally struggling. This leads the court to conclude that the prior custodial arrangement is not working. For this reason, the court believes that a change in the prior custody order is necessary.

Each parent needs to seriously consider the issues raised by the other during the course of this trial, and they must attempt to improve personally on those issues in order to help their children move past their present circumstances.

For the foregoing reasons, the court will enter the following order of court granting father’s petition to modify custody and emergency petition for special relief:

ORDER OF COURT

And now, this 29th day of September, 2014, with this case being before the court on defendant’s petition for emergency special relief and plaintiff’s response, with Deborah L. Smith, Esquire, appearing and representing the plaintiff, Cathy Sue Nieto; Jean K. Perkins, Esquire, appearing and representing the defendant, Jason Michael Hawk; and Joanne Nene, Esquire, appearing as guardian ad litem for the minor children, and in consideration of the testimony and evidence presented, as well as a thorough review of the file in the above captioned case, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. A custody review conference is hereby scheduled for the 9th day of February, 2015 at 9:00 a.m. in Jury Room #4 of the Lawrence County Government Center, one (1) hour reserved status.

2. The plaintiff, Cathy Sue Nieto, and the defendant, Jason Michael Hawk, are awarded shared legal custody of the minor children. Legal custody is the legal right to make major decisions affecting the best interest of the children. Major decisions affecting the children include, but are not limited to, health, medical, dental, orthodontic, mental health treatment and/or counseling, education, religious training and upbringing. Except in the case of medical or mental health emergencies, the custodial party shall consult with the non-custodial party. Shared legal custody does not give one party final authority in the event of a dispute. The parties shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, mental health and/or counseling reports, insurance documents and documents required by state, local or federal authorities. Both parties shall have the right to obtain and review all information records of the child, including medical, dental, psychiatric, educational, and religious record and documents, in accordance with 23 Pa.C.S.A. §5309. The parties shall not enroll the child into curricular or extra-curricular activities without prior notice to and consent from the other party. The parties shall keep the other informed of the children’s activities, school events and medical appointments. The parties shall keep the other notified of all important issues regarding the minor children. This order shall serve as a release to any medical, mental health and counseling, educational or religious provider to release reports/information to all parties. Pursuant to 23 Pa.C.S.A. §5336, all parties have access to the child’s records and information.

3. Effective, October 13, 2014, defendant/father is awarded primary physical custody of the minor children subject to the partial custody rights of plaintiff/mother as outlined below. The custodial party has the obligation to foster and encourage a healthy relationship between the minor child and the non-custodial party.

4. The plaintiff/mother shall have partial custody of the minor children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Mother shall have an additional evening with the minor children each week from after school until 8:00 p.m., and mother shall be responsible for notifying father of her selected evening by Sunday at 6:00 p.m.

5. During the summer months, beginning on the first full week following the completion of the academic school year, the parties shall alternate custody of the minor children on a week-on, week-off basis. The mother shall enjoy the first full week of custody during the summer break with the minor children. During the summer months, the parties shall exchange custody on Sunday evenings at 6:00 p.m.

6. The custodial holiday schedule shall occur as mutually agreed upon by the parties. In the event the parties cannot agree, the following holiday schedule shall be implemented:

a. For Easter weekend, in the odd numbered years, father shall have the minor children from Saturday at 6:00 p.m. until Sunday at 6:00 p.m. This schedule shall alternate every year thereafter.
b. For the Thanksgiving holiday in the even numbered years, father shall have the minor children from the Wednesday before Thanksgiving at 6:00 p.m. until the Friday after Thanksgiving at 6:00 p.m. This schedule shall alternate every year thereafter.
c. Mother shall have the minor children every Memorial Day. Father shall have the minor children eveiy Labor Day.
d. The mother shall have the minor children every Mother’s Day and Father shall have the minor children every Father’s Day from 10:00 a.m. until 6:00 p.m.
e. For Christmas in the odd numbered years, the Father shall have the minor children from December 24th at 9:30 a.m. until December 25th at 5:00 p.m., and mother shall have the minor children from December 25th at 5:00 p.m. until December 26th at 9:30 a.m. This schedule shall alternate every year thereafter.
f. The holiday schedule set forth above supersedes the normal custodial provisions of this order.

7. Transportation may be provided by a family member or someone well known to the children. However, the court strongly encourages the plaintiff and the defendant to personally effectuate all custody exchanges. All parties and anyone else involved with transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania, including those regarding child safely restraint apparatus in any vehicle used to transport the children.

8. The parties are additionally directed to contact Wendy Yeropoli, LPC, at (727) 657-4365, 26 Nesbit Road, Suite 152, New Castle, Pennsylvania 16105 to commence co-parenting/communication counseling within twenty (20) days from the date of this order of court.

9. The parties may modify the terms of this custody order as they both agree from time to time. One party shall not modify these provisions without the consent of the other.

10. The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter and to comply with all provisions contained in the order(s). All communications regarding custody issues shall take place directly between parties, never using the minor children as an intermediary.

11. While in the presence of the children, the parties shall not make any remarks or do anything which can in any way be construed as derogatoiy or uncomplimentary to the other, and it shall be the duty of all parties to uphold the other party as one whom the children should respect and love. To the extent possible, each party shall not permit any other person to make derogatory comments in the presence of the children. Each party shall refer to the other by the appropriate role names, such as mom, dad, your grandmother, etc.

12. Lawrence County retains jurisdiction of this custody case. Neither party shall remove the children from the jurisdiction of this court with the intent of changing the physical residence of the children without the written consent of the other party or approval of the court. No relocation, as defined in Title 23 Pa.C.S.A. §5322, with the minor children, shall occur without the consent of every person who has custodial rights to the minor children, or without approval of the court. Any person desiring to relocate with the minor children must comply with the obligations of Title 23 Pa.C.S.A. §5337, including, but not limited to, providing the required sixty-day notice.

13. This order of court supersedes all prior custody provisions in the above captioned case. All previous custody orders are null and void.

14. The parties shall abide by the terms of the appendix attached hereto, incorporated herein, and made a part hereof. The parties shall read the appendix immediately and shall familiarize themselves with the provisions contained therein.

15. The parties are obligated to notify the Prothonotary of Lawrence County of any change in address.

16. The prothonotary shall be responsible for properly serving a copy of this order of court and opinion upon all counsel of record; upon any unrepresented parties in this action in accordance with Pa.R.C.P. No. 236, and Rule L 236 and Wendy Yeropoli, LPC, 26 Nesbit Road, Suite 152, New Castle, Pennsylvania 16105.


author: PADILLA,/,

text:
    Ali v. Philadelphia City Planning Commission

      Steven David Masters, for appellant.

      Benjamin Mishkin and Eleanor N. Ewing, for appellee.
    Sept. 26, 2014
   PADILLA,/,

JihadAli (“Ali”) appeals from this court’s order of June 30,2014, denying his appeal from the final determination of the Pennsylvania Office of Open Records (“OOR”) and upholding the decision of the OOR.

FACTUAL AND PROCEDURAL HISTORY

On April 15, 2013, Jihad Ali (“appellant”) filed a Pennsylvania Right to Know Law (“RTKL”) request seeking ali public records in the possession of the Philadelphia City Planning Commission (“appellee”) from 2003 to the present time relating to the revitalization and redevelopment of the 60th Street Commercial corridor.

On May 22, 2013, appellee denied the request in part, redacting the following pursuant to the Copyright Act, 17 U. S. C. §§ 101 etseq. as follows:

In the document entitled “Affordable Rental Housing Development Proposal-60th Street Corridor,” architectural drawings of the floor plans have been redacted from pages 45 through 50. A map of “community services” in the 60th Street has been redacted from page 53.
In the document entitled “60th Street Commercial Corridor UP.UD Assessment,” maps, architectural schematics, and artists’ renderings have been redacted from pages 18, 21, 45, 47, 49, 51, 53-54, 56, 59,64, 67, 70, 74, 77, 79, 81, 83, 85-91, 94-98, and 100. Descriptions of each redacted item can be found in the unredacted titles on the relevant pages.
In the document entitled “60th Street Property Analysis,” maps and artists’ renderings have been redacted from pages 2,4,10, 13,14,16 and 19. Artists’ renderings have been redacted from pages 13 and 19 depicting the finished projects described therein, and the remainder of the redactions are maps depicting the boundaries of the referenced sites and/or projects.

See City of Philadelphia’s Denial Letter, May 22, 2013.

Additionally, appellee redacted information it claimed was exempt from disclosure as confidential proprietary information pursuant to 65 P. S. § 67.708(b)(ll). Specifically, “[ijnthe document entitled4 Affordable Rental Housing Development Proposal-60th Street Corridor,’ the following confidential proprietary information has been redacted on pages 29, 30, and 33; a pro forma financial statement and an operating budget balance sheet.” See City of Philadelphia’s Denial Letter, May 22, 2013.

On June 13, 2013, appellant appealed that decision to the OOR.

On June 25, 2013, appellee provided its position statement and statement made under penalty of perjury by Steven Williams, Executive Director of the Partnership Community Development Corporation (“The Partnership CDC.”) Appellant also filed his position statement.

On July 23,2013, the OOR issued its final determination, granting appellant’s appeal in part and denying it in part. The OOR required appellee to provide without redaction the “Affordable Rental Housing Development Proposal-60th Street Corridor” on pages 29,30, and 33; a pro forma financial statement and the operating budget balance sheet” that had been redacted as proprietary confidential information within thirty (30) days of the mailing date of the determination. In the same determination, the OOR denied appellant’s request for the information protected under federal copyright law.

On August 15,2013, appellant filed a notice of statutory appeal in this court.

On August 16, 2013, appellant filed a motion to amend the caption and change the respondent from the Office of Open Records to the Philadelphia City Planning Commission.

On August 22, 2013, appellee filed a statutory appeal in this court in opposition to the OOR’s decision to grant appellant access to the budget balance sheets and pro forma financial statements; that matter was administratively consolidated with appellant’s appeal as both matters involved the same agency decision.

On September 12, 2013, this court granted appellant’s motion and amended the caption to Jihad A li v. Philadelphia City Planning Commission.

On November 27, 2013, the certified record was received.

On January 6, 2014, appellant filed his brief, arguing that the Commonwealth of Pennsylvania has the statutory authority to nullify federal copyright law’s “fair use” doctrine, and that the OOR failed to apply federal preemption doctrines to resolve the conflict between federal copyright law and state right-to-know-law.

On January 6,2014, appellee filed its brief on the cross-appeal from the decision of the OOR, arguing that the OOR should have denied appellant’s appeal on the basis that the material responsive to his request constituted the confidential proprietary information of a third party. That same day, appellee filed a motion to supplement the record with an additional affidavit.

On Januaiy 31,2014, appellant filed an additional brief in opposition of appellee’s cross-appeal. He averred that the records the OOR requested the City to disclose were not covered under the exemption in Section 708(b)(ll) of the RKTL, because the agency must establish that the documents are both confidential proprietary information and trade secrets, and the agency did not meet its burden under the statute.

On February 3, 2014, appellee filed its brief, arguing that appellant’s appeal should be denied and the OOR’s decision should be upheld in part and overturned in part. Appellee argued that the OOR properly denied appellant’s appeal for the materials protected by copyright, and that appellant did not properly interpret the Fair Use Doctrine, and further that the Fair Use Doctrine has no application under the RTKL.

On February 18, 2014, appellant filed a reply to appellee’s brief.

On February 28, 2014, this court granted appellee’s motion to supplement the record.

On March 5, 2014, appellant filed a praecipe to supplement and attach a corrected reply brief of that originally filed February 18, 2014.

On March 18, 2014, the court heard oral argument on the merits of this case. Appellant again argued that Federal Copyright Law preempts the Pennsylvania RTKL. Notes of Testimony, hereinafter N. T, 3/6/14 at 4-5. Appellee, on the other hand, averred that when they get to a copyrighted document, the sole inquiiy they conduct is whether it is protected by copyright; if it is protected, the city then ends its inquiry. N. T. 3/6/14 at 10. Appellant argued that the case was not moot, as this was a situation where appellant would be repeatedly denied access, and because it is a question of importance to the public interest. N. T. 3/6/14 at 15-16. Appellee responded that appellant had already obtained the records at issue from another source, and additionally, that there was no question every denial of a request could be appealed, and that there is not significant public interest involved, as the question presented is simply whether or not appellant should access certain drawings. N. T. 3/6/14 at 18-19.

Additionally, appellant argued he should be entitled to attorney’s fees for the costs of prosecuting the case, as it was a matter of public interest. N. T. 3/6/14 at 21. Appellee argued that attorney’s fees and costs are available only when the denial was made in bad faith, which was not the case here; the OOR had repeatedly held that a fair use analysis should be conducted outside of the context of the RTKL. N.T. 3/6/14 at 21.

On June 30, 2014, this court entered an order denying appellant’s statutory appeal.

On July 28, 2014, appellant filed a timely notice of appeal to the Superior Court.

On July 29,2014, this court issued its order pursuant to Pa. R.A.P. 1925(b), directing appellant to file his concise statement of matters complained of on appeal within twenty-one (21) days.

On August 19, 2014, appellant filed his statement of errors complained of on appeal, arguing that this court erred in denying its appeal because it “erroneously [upheld] the reasoning of the Pennsylvania Office of Open Records in Najarian v. North Whitehall Twp.;” that this court erred in upholding the redaction of copyrighted material from records; that this court erred in not applying the fair use doctrine codified at 17 U. S. C. § 107; that this court erred in failing to hold that Article I § 8 of the constitution as well as §301(a) of the Federal Copyright Act preempts the RTKL; that this court erred in failing to hold that the RTKL is preempted under the doctrine of implied or conflict preemption; that this court erred in dismissing appellant’s appeal for lack of subject matter jurisdiction on the basis that any claims arising under the federal Copyright Act must be tried in federal court; that this court erred in dismissing appellant’s appeal on the basis of mootness; and erred by denying appellant’s claims for attorney’s fees and costs.

DISCUSSION

On appeal, appellant raises a litany of issues relating to this court’s denial of his RTKL request.

The RTKL is the statute providing for access to public records in Pennsylvania. Bowling v. Office of Open Records, 75 A.3d 453, 455 (Pa. 2013). This court’s scope as the first level of appellate review per Chapter 13 of the Right to Know Law is de novo and shall contain findings of fact and conclusions of law based upon the evidence as a whole, clearly and concisely explaining the rationale of the decision. Com., Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503, 507 (Pa. Commw. Ct. 2012) appeal granted, 74 A.3d 1027 (Pa. 2013); In re Right to Know Law Request Served on Venango Cnty. ’s Tourism Promotion Agency, Lead Econ. Dev. Agency, 83 A.3d 1101, 1105 (Pa. Commw. Ct. 2014); 65 P.S. § 67.1301(a). A reviewing court may substitute its own findings of fact for that of the agency. Gaming Control Board, 48 A.3d at 507.

The RTKL requires agencies to disclose public records and provides that “a record in the possession of a Commonwealth agency... shall be presumed to be a public record.” 65 P. S. § 67.305(a). Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record... and whether the agency has possession... of the identified record.” 65 P. S. § 67.901. The burden of proving a record of the Commonwealth or local agency is exempt from public access is on that agency, by a preponderance of the evidence standard. 65 P. S. § 67.708(a)(1). The subject of appellant’s requests were, as noted above, drawings and plans subject to copyright by the partnership CDC; thus, the OOR found that they were exempted under the trade secret/confidential proprietary information exception. 65 P. S, § 67.708(b)(ll).

I. FEDERAL PREEMPTION

Appellant raises numerous arguments that the Right to Know Law should be pre-empted by Federal Copyright Law.

The Supremacy Clause of the United States Constitution holds that federal laws are the supreme law of the land, and the concept of preemption derives therefrom. U. S. Const, art. VI, cl. 2. See also Dooner v. DiDonato, 601 Pa. 209, 218-19, 971 A.2d 1187, 1193 (2009). Three types of preemption have been carved out; 1) express, where there exists an explicit statutory command; 2) implied, or where federal law so thoroughly occupies a legislative field as to make reasonable the inference that congress left no room for the states to supplement it; and 3) conflict, or where a state and federal law conflict because it is impossible to comply with both or where the state law is an obstacle to the goal of the federal law. Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 589 Pa. 296, 305, 908 A.2d 875, 881 (2006); see also Dooner, 971 A.2d at 1193.

Thus, the Pennsylvania State RTKL addresses these preemption concerns. Generally, a record in possession of a Commonwealth or local agency is presumed to be a public record, unless the record is a) exempt under 65 P.S. § 67.708; b) protected by a privilege; exempt from disclosure under any other federal or state law or regulation or judicial order or decree. 65 P. S. § 67.305. Additionally, the RTKL specifies that nothing “in [the RTKL] shall supersede or modify the public or nonpublic nature of a record or document established in federal or state law, regulation, or judicial order or decree.” 65 P. S. § 67.306. If the provisions of RTKL regarding access to records conflicts with any other federal or state law, the provisions of the act shall not apply. 65 P. S. § 67.3101.1.

17 U.S.C. § 106 of the Federal Copyright Act grants copyright owners “exclusive rights to do and to authorize” reproduction, preparation of derivative works, distribution of copies, and public performance and displays. 17 U.S.C. § 106. Section 107, the Fair Use exception, holds that “fair use of a copyrighted work, including such use by reproduction in copies or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching,...scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. Fair use is an affirmative defense to a claim of copyright infringement Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599, 114 S. Ct. 1164, 1181, 127 L. Ed. 2d 500 (1994) (emphasis added). The city redacted the copyrighted information at the request of the copyright holder, the Partnership CDC; thus no infringement exists. There is no case law currently available to this court indicating the doctrine may be applied prospectively in the context in which Ali seeks to apply it, i.e. as support for a RTKL request.

Further, this court does not have jurisdiction to determine the merits of a fair use claim. State courts do have the jurisdiction to hear cases sounding in federal preemption claims, as they challenge subject matter jurisdiction and the competence of the court to reach the merits of the claims raised. Mastrocola v. Se. Pennsylvania Transp. Auth., 941 A.2d 81, 88 (Pa. Commw. Ct. 2008). However, state courts do not have subject matter jurisdiction to hear claims regarding copyright, as such a claim is entirely within the jurisdiction of the federal courts. 28 U.S.C. §133 8(a). See also Pottstown Daily News Pub. Co. v. Pottstown Broad. Co., 411 Pa. 383, 385, 192 A.2d 657, 659 (1963).

Accordingly, this court properly denied Ali’s appeal.

II. ATTORNEY’S FEES

Additionally, appellant argues that this court erred in failing to award him attorney’s fees. The RTKL does allow for the reward of attorney’s fees if a court reverses the final determination of the appeals officer. 65 P. S. § 67.1304(a). Even if the court reverses the determination, the court must find that the agency “willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith.” 65 P. S. § 67.1304(a)(2).

This court did not reverse the decision of the agency; thus, appellant is not entitled to attorney’s fees and has not provided further argument as to why this court should have awarded said fees.

III. CONCLUSION

For all of the reasons stated above, this court’s decision should be affirmed.

      . Appellee did not appeal this court’s ruling upholding the final determination of the OOR.

      . “The Partnership CDC is the holder of the copyright and does not consent to the release of the protected information.” See final determination of the OOR, p. 4;

      . Although the decision is not precedential or binding authority, the Office of Open Records has previously discussed the Fair Use Doctrine as it applies to the Copyright Act exception, noting that a logical application of the Fair Use Doctrine in this context creates the likelihood of finding a specific record public for one requester while rendering the same record exempt for another requester. Najarian v. North Whitehall Twp., AP 2009-0916 (Pa. OOR Dec. 30, 2009). Further, an agency is precluded from denying a request because of the record’s intended use, whereas the Fair Use Doctrine requires a determination of the record’s use. Id. This is an unacceptable outcome, as the record is either public or not; thus, the Fair Use analysis should be conducted outside the RTKL context. Id.

      . The statute also provides that the court may impose penalties and costs in accordance with other applicable rules of the court; however, this is not an affirmative command. 65 P. S. § 67.1304(c).