Author: egoldberg

The unreported case of Jenkins v. City of Philadelphia (1470 C.D 2014) should serve as a reminder to all land use attorneys that they must always adequately satisfy all of the applicable proofs when presenting a zoning case. In this instance, the Applicant needed use and dimensional variances in order to utilize a building for commercial and residential purposes. In this instance, the property only permitted industrial uses.

The Philadelphia Zoning Board of Adjustment granted the requested variances. However, after this request a neighbor filed an appeal. The Philadelphia Court of Common Pleas affirmed the approval, at which time the neighbor appealed to the Commonwealth Court.

After reviewing the case, the Commonwealth Court reversed the trial court and observed that the Applicant failed to satisfy its burdens. The Court also noted that the Applicant presented extremely limited testimony to the Zoning Board. Initially, there was no evidence that the property was incapable of being used for any permitted purpose, and the Applicant testified that the property had been vacant for a decade.

That being said, the Applicant never tried to explain why the property was vacant or what marketing efforts were employed to sell/lease the property or use it for any permitted purpose. There was also no presented evidence that showed it was cost prohibitive to utilize the property for any permitted use. Instead, there was simply a statement that the property had been vacant and the permitted uses were not viable, without any adequate data or supporting information.

For this reason, land use cases should always present the requisite proofs in a zoning case, even if it appears that the board is inclined to grant a zoning application. A zoning board’s decision is entitled to great weight, but testimony is still required to support a board’s approval. This is particularly true for a use variance.

The case of Linde Corporation v. Black Bear Property L.P. et al was decided by the Court of Common Pleas of Lycoming County and dealt with the issue of who is an owner for purposes of a mechanic’s lien claim. Specifically, is the owner of subsurface rights an owner under the Mechanic’s Lien Law? As noted by the Court, the owner of only subsurface rights can be an owner, but was not one in this instance.

The Plaintiff, Linde Corporation (“Linde”), filed a mechanic’s lien for labor and materials used to provide work on the subject property. Linde had entered into a contract with the owner of the property, Black Bear, LLC for the work to the surface of the property. Due to non-payment, Linde filed a Mechanic’s Lien Claim and a Complaint to Obtain Judgment and Enforce Mechanic’s Lien Claim. One of the other Defendants named in the Complaint was Penn Central Corporation, the owner of the subsurface rights in the subject property.

Linde argued that because it installed underground pipes, it had provided a benefit to Penn Central. Initially, the Court held that someone merely holding subsurface rights in a property can be an owner. However, in this instance, Linde did not enter into a contract with Penn Central. Because there is neither an actual nor an implied contract, the Court held that Penn Central is entitled to have the lien stricken against Penn Central. The Court held that in this instance, the Mechanic’s Lien Law should be construed to mean that only the property owner who actually contracts with the contractor can be subject to a mechanic’s lien.