What Happens When an Owner Wants To Obtain a Modification to a Zoning Condition?

April 2014Articles In the Zone

On March 21, 2014 the Commonwealth Court of Pennsylvania delivered an unreported panel decision in the matter of Emery v. City of Philadelphia Zoning Board of Adjustment (2014 WL 1168813). In its decision, the court reiterated and applied the law which governs when an owner may obtain a modification of conditions which have been imposed upon a grant of zoning relief.

In 2006, Mr. Emery received a variance to expand his Philadelphia restaurant into an additional portion of the building in which it was located. The variance was granted with a proviso requiring “all venting above the roof; commercial trash pick-up seven days a week. All trash stored inside the building.” In 2011, the City of Philadelphia’s Department of Licenses and Inspection issued a violation notice for the property, highlighting a failure to comply with the proviso regarding trash storage/ removal. The owner appealed the violation to the Zoning Board of Adjustment (ZBA) and requested that the proviso be removed. “…on grounds of undue hardship.”

At the hearing before the ZBA, the owner’s attorney argued that the indoor storage of trash created a fire hazard and the daily commercial trash pick-up was an excessive requirement given the amount of trash generated by the small restaurant. However, a neighboring property owner argued to the ZBA that trash was being placed in an outdoor dumpster, and blocking a shared driveway. The ZBA unanimously denied the appeal.

The owner appealed to Philadelphia Common Pleas Court, which confirmed the ZBA decision, reasoning that there had been no error of law and that the ZBA decision was supported by substantial evidence. On appeal to Commonwealth Court, the owner argued that the proviso should have been modified because of a demonstrated change in circumstance since the application of the 2006 proviso.

The Commonwealth Court based its analysis on the cornerstone that an owner that wishes to obtain a modification of a zoning condition must establish 1) grounds for a traditional variance, or a change in circumstance, which render the prior condition inappropriate, and 2) no injury to the public interest. In the Emery decision the Commonwealth Court stated that “…Owner was required to demonstrate some factual basis with regard to changes in circumstances to justify a conclusion that the original conditions were no longer appropriate.” In determining whether this test had been met, the Commonwealth Court noted that there was no demonstration that the owner had ever retained the commercial trash hauler required by the original proviso, and that he had failed to demonstrate that modifying the proviso would not cause harm to the public. As such, the Common Pleas Court order was affirmed.

The lesson for property owners is that any attempt to alter a condition placed upon zoning relief needs to focus on the requirement of demonstrating a change in circumstances, along with a demonstration that the condition is not required to promote the public interest. While not necessarily a high hurdle to achieve, it is a fact-intensive one, and the initial determinations of local zoning boards are likely to be granted significant deference.

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