Request for New Variance May Not Be Evaluated in Light of Prior Relief Granted by Zoning Board of Adjustment

August 2011Newsletters In the Zone

Although an applicant receives a variance from the Zoning Board of Adjustment (ZBA), it may be required to seek new variances if the character of the project and/or the zoning of the property changes, even if the relief being requested is less than what was previously granted. In a memorandum opinion in Manayunk Neighborhood Council, Inc., et al. v. The Philadelphia Zoning Board of Adjustment, et al., (No. 1083 C.D. 2010, filed June 14, 2011), the Commonwealth Court determined the applicant was required to seek new variances from the ZBA after the subject property was rezoned. In Manayunk Neighborhood Council, the applicant filed an application with the City of Philadelphia Department of Licenses and Inspections (L&I) for zoning and use permits to construct 270 apartment units with accessory and public parking. L&I refused the application because the proposed project failed to comply with certain dimensional regulations in the zoning code.

The applicant filed an appeal to the ZBA seeking variances to such dimensional regulations, which were granted. In 2005, the applicant submitted a letter to the ZBA requesting administrative permission to amend the plan originally submitted by reducing the number of units and parking spaces. The ZBA approved the revised plan. Sometime between 2005 and 2008, the property was rezoned from G-2 Industrial to RC-1 Residential. In August 2008, the applicant submitted another application to L&I showing minor changes from the 2005 plan approved by the ZBA. L&I refused the 2008 application because it failed to comply with other dimensional requirements in the zoning code. The applicant filed an appeal to the ZBA requesting variances to the dimensional requirements.

In presenting its case, the applicant argued “L&I should have evaluated the application against the ZBA’s previous grant of relief as distinguished from the current regulations. Since the application is for a smaller building within the footprint and massing allowed by the ZBA, approval should have been granted.” Manayunk Neighborhood Council, Inc., et al. v. The Philadelphia Zoning Board of Adjustment, et al., (No. 1083 C.D. 2010, filed June 14, 2011). The ZBA granted the variances. The Manayunk Neighborhood Council appealed the ZBA’s decision to the Philadelphia County Court of Common Pleas, which affirmed the ZBA’s decision. On appeal, the Commonwealth Court reversed the ZBA’s decision. In rendering its decision, the Commonwealth Court noted the zoning of the property changed from G-2 Industrial to RC-1 Residential and the floodplain was remapped. As such, the Commonwealth Court found the applicant had “to prove that its project met the criteria from the zoning provisions in the RC-1 residential district because the variances that were previously granted were from zoning regulations that are no longer applicable.” Manayunk Neighborhood Council, Inc., et al. v. The Philadelphia Zoning Board of Adjustment, et al., (No. 1083 C.D. 2010, filed June 14, 2011).

For more information, please contact Carrie B. Nase at 215.299.2030 or [email protected].

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