Posted by: Patricia Salkin | July 21, 2014

PA Supreme Court Reiterates that Applicant for Variance Need Not Show for Purposes of Establishing a Hardship that Property is Valueless Nor That it Cannot Be Used for Any Other Purpose

The Archdiocese of Philadelphia (Archdiocese) filed for a zoning permit with the Philadelphia Department of Licenses and Inspections to allow them to convert an elementary school into 63-unit one-bedroom apartments for low-income senior citizens. The Department denied the request finding that the permit was not in compliance with the Philadelphia Zoning Code, and the Archdiocese appealed to the City of Philadelphia Zoning Board of Adjustment. During the hearing the Archdiocese established that the project would constitute an adaptable reuse of a neighborhood anchor that would have gone vacant. There was one objector to the granting of the permit (Appellee), who claimed that the Archdiocese had not shown hardship unique to the school building, as required for the grant of the variance, but the ZBA decided to grant the permit and concluded that the Archdiocese had established the “overwhelming support” of the surrounding community for the housing project, and also found that the concerns for parking, traffic, trash, and aesthetics would not adversely impact the health, safety and welfare of the surrounding community, as the proposed use would be less burdensome on the community than the previous use as a school. The Objector appealed the ZBA’s decision to the court of common pleas which affirmed the decision, but the Commonwealth Court reversed, finding that the ZBA “improperly found that a unique hardship existed,” and its grant of the variances was not based on substantial evidence.

The Supreme Court of Pennsylvania said that that an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose, and that the Commonwealth Court erred by relying on an improper standard for unnecessary hardship and by substituting its judgment for that of the ZBA, thereby applying an incorrect standard of review. Furthermore, the court found that the Commonwealth Court’s articulation of a functionally obsolete standard for unnecessary hardship was unsupported even under its own cited precedent, and that the ZBA’s decision on every issue raised was within the bounds of reason and therefore represented a sound exercise of discretion.

Marshall v City of Philadelphia, 2014 WL 3579694 (PA 7/21/2014)

The opinion can be accessed at:

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