Zoning Board of Adjustment Required To Make Findings Regarding Requirements To Support Variance Grant

January 2011Newsletters In the Zone

In the past, applicants requesting variances from the City of Philadelphia Zoning Board of Adjustment generally limited their testimony as to the details of their proposed project and the support of the applicable civic group. However, as a result of a recent Commonwealth Court case, applicants may now want to consider presenting “real” evidence to prove they satisfy the requirements to obtain a variance, as set forth in Section 14-1802(1)(a)-(1).

These requirements can be boiled down into three key conditions: (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. See Poole v. Zoning Board of Adjustment of the City of Philadelphia, 2010 WL 4874483 (Pa. Cmwlth. 2010). In Poole, the Commonwealth Court remanded the matter to the Court of Common Pleas of Philadelphia with instruction to remand the matter to the city’s Zoning Board of Adjustment (the ZBA) to make findings as to whether the applicant satisfied the requirements to obtain certain variances.

In Poole, the applicant is the developer of a Philadelphia property consisting of approximately 11,500 square feet located in the L-4 limited industrial zoning district. However, the surrounding properties were zoned R-10A residential. The property had been used for an automobile repossession yard. The applicant submitted an application to the Department of Licenses & Inspections (L&I) requesting a permit to demolish the existing building and construct eight structures to be used for 14 residential dwelling units. L&I refused the application for the following reasons: (1) the proposed use is not permitted in the L-4 zoning district; (2) multiple uses or structures are not permitted on a single lot; (3) two off-street loading spaces are required in the L-4 zoning district; and (4) the proposed rear yard did not comply with the required depth. The applicant appealed L&I’s refusal to the ZBA. After a hearing, the ZBA granted the requested relief. An objector filed an appeal to the ZBA’s decision to the Court of Common Pleas of Philadelphia County. The Court of Common Pleas affirmed the ZBA’s decision. On appeal, the Commonwealth Court vacated the lower court’s decision and remanded the matter for further findings.

The objector’s issues on appeal were whether the applicant provided evidence: (1) of substantial hardship; (2) that the requested variances constituted the minimum variances necessary to alleviate any alleged hardship; and (3) that the property could not be reasonably used in accordance with the L-4 zoning district. The Commonwealth Court found the ZBA “failed to provide any finding of fact that addresses any of the criteria supporting the decision to grant” the variances. The court went on further to state the ZBA “did not provide any explanation for its reasoning” and “it did not make any factual findings or explain how those facts led it to determine that unnecessary hardship exists, that there is no public detriment, and that [the applicant] sought the minimum variance required in order to obtain the relief” with respect to the variances. Therefore, the court remanded the matter back with specific instructions that the ZBA make findings with respect to whether the applicant established the requirements for the requested variances.

An appeal from the ZBA will delay any project. However, a remand back to the ZBA for additional findings will further delay a project. In order to avoid this delay, an applicant should provide evidence at the ZBA hearing to prove it satisfies the requirements to obtain a variance.

As an aside, it should be noted that although the objector did not challenge the applicant’s request for a use variance, the Commonwealth Court did address this issue, stating it agreed with the ZBA’s decision to grant the use variance and that the applicant established the key requirements in order to be granted a use variance. Specifically, the court found that although the property was zoned L-4, the surrounding properties are zoned R-10A, and the current form and use of the property is “inconsistent with the character of the neighborhood and is a general detrimental [sic] to the neighborhood’s welfare.” Id.

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