Pennsylvania Supreme Court Accepts Appeal Regarding the Standard in Granting Use Variance

August 2013Articles In the Zone

It is rare that a zoning case goes before the Pennsylvania Supreme Court, given the fact that the Supreme Court only accepts a limited number of appeals that it believes are important to review. However, on August 15, 2013, the Supreme Court granted a Petition for Allowance of Appeal filed by the Archdiocese of Philadelphia in connection with its request for a use variance.

The Archdiocese is the owner of a property located at 3255 Belgrade Street in the City and County of Philadelphia (the Property). The Property is zoned R-10A and contains a three-story building that was utilized as an elementary school from 1917 until 2008. In 2009, the Archdiocese proposed to convert the existing building into a 63-unit apartment building for low-income senior citizens and received funding for the project from the U.S. Department of Housing and Urban Development (HUD).

In 2010, the Archdiocese filed a Zoning/Use Registration Application with the City of Philadelphia Department of Licenses & Inspections (L&I), requesting a permit to construct a four-story addition to the existing building and use it for multifamily housing. L&I refused the Application for the following reasons:

  1. Multi-family housing is not permitted in the R-10A zoning district;
  2. The proposed parking did not meet the required number, size or landscaping requirements;
  3. The rear yard depth and area, and the side yard depth, did not meet the minimum requirement; and
  4. The height and number of stories of the proposed addition exceeded the maximum permitted.

The Archdiocese filed an appeal to the Zoning Board of Adjustment (ZBA).

At the hearing before the ZBA, the Archdiocese presented some testimony regarding its request for the dimensional variances, but focused its testimony on the need for low-income senior housing in the community. A neighboring property owner, Gloria Marshall, entered her appearance at the ZBA hearing and presented testimony in opposition to the proposed project and the relief being sought. Marshall argued that any economic hardship was created by the Archdiocese itself and that the neighborhood surrounding the Property consists predominantly of single-family row homes and there are no multifamily homes in the area. The ZBA granted the variances requested. Marshall appealed the ZBA’s decision to the Court of Common Pleas of Philadelphia (the trial court), arguing the Archdiocese failed to demonstrate the requisite hardship to establish the need for either the use or the dimensional variances. The trial court affirmed the ZBA’s decision. Marshall filed an appeal to the Pennsylvania Commonwealth Court.

The Commonwealth Court relied on the longstanding case law that “in order to meet the burden necessary to obtain a use variance, a property owner must demonstrate that the entire building is functionally obsolete for any purpose other than one not permitted under the relevant zoning ordinance.” The Commonwealth Court found that while the Archdiocese submitted evidence demonstrating the building was no longer viable for an elementary school, it offered no evidence whatsoever demonstrating:

  1. The property could not in any way be used for any other permitted purpose;
  2. It could only be used for such purpose at a prohibitive expense; or
  3. It has no value for any purpose permitted by the Zoning Code.

The Commonwealth Court went on to state that the Archdiocese failed to present any evidence demonstrating that it could not utilize the Property as any of the other uses permitted in the R-10A zoning district.

At the hearing, the Archdiocese failed to present any testimony to satisfy the requirements to obtain a use variance, including the issue of unique hardship. Instead, the Archdiocese focused its testimony on the need for low-income senior housing in the neighborhood and the fact that the proposed project was one of only two such proposals in Pennsylvania to receive approval from HUD. As a result, the Commonwealth Court reversed the trial court’s decision.

The Archdiocese filed a Petition for Allowance of Appeal to the Supreme Court appealing the Commonwealth Court’s decision. The Supreme Court granted the Petition. However, it limited its review to the issue of “whether the Commonwealth Court plainly misapplied the applicable standard of review, given the substantial public importance of, and pressing public need for, the project for which zoning relief was properly awarded, where the Court’s reversal of the well-supported zoning relief threatens completion of the project due to potential loss of substantial and necessary federal funding.”

The longstanding standard in obtaining a use variance is to demonstrate that:

  1. There is unique hardship to the property;
  2. There will be 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.

If the Supreme Court reverses the Commonwealth Court’s decision, new law could be made regarding the standard to obtain a use variance, which might now require the demonstration of some public interest in the need for the proposed use.

View the entire issue of In the Zone (pdf)