Posted by: Patricia Salkin | January 8, 2017

PA Appeals Court Finds Hardship was Not Self-Created by Church in Variance Request Due to the State of the Building

In addition to being a church, Appellant Redeemed Christian Church of God, Living Spring Miracle Center, Inc. performed substantial community outreach and ministry work, including providing educational training, operating food banks and promoting medical screenings. Appellant’s Pastor Funmi Obilana sent a letter to the Township Code Enforcement Officer in which she stated the Property would be used for a multimedia production center, a community development center, a regional fellowship and conference center and a “place of praise and worship.” The Code Enforcement Officer responded by writing that the proposed uses would not be permitted in the BP District and did not meet the purpose of the BP District as set forth in the Ordinance. A couple months later, the Township Board of Commissioners enacted an ordinance that amended Section 1282.02(a) of the Ordinance to remove the by-right uses of: “motel or hotel, conference facilities, training, or continuing education centers…”; “place of public amusement, entertainment or assembly, including a movie theater, provided such use is inside a building”; and “educational or recreational use, day care center, nursery school, medical clinic and non-profit use.” This case arose as an appeal from the order of the Court of Common Pleas of Delaware County affirming the decision of the Zoning Hearing Board of Lower Chichester Township that denied Appellant’s application for a use variance.

On appeal, the court determined that Appellant’s application for a variance was not merely premised on the argument that it was not able to use the entirety of the space in the Building and that it would be more financially lucrative to use part of the Building in a different way than a strict reading of the zoning allowed, but on the fact that the Building represented an outdated and functionally obsolete office building that could not reasonably be put to any permitted use in the BP District absent substantial and costly renovations. The court found that since the state of a building may create an unnecessary hardship under the MPC, the mere fact that Appellant has used a portion of the Building for a permitted use did not negate the fact that the state of the Building could be an unnecessary hardship, and could not obligate it to maintain its partial use of the Building in perpetuity.

As to the trial court’s holding that the hardship was self-created, the court found on appeal that while Appellant was aware that its desired use of the Building was not compliant with the Township’s interpretation of the Ordinance prior to its purchase of the Property, there was nothing in the record indicating that the purchase price paid by Appellant presumed the variance would be granted or that the potential economic hardship of the Building affected the transaction. Additionally, the court found that because the proposed use was religious in nature, a potential exemption from property taxes could not be used as a factor in determining whether a request for a variance would be contrary to the public welfare. Finally, the court found that the proposed uses, particularly the training and educational functions of the Building, were substantially similar to permitted commercial uses and therefore had a minimal impact on the use of neighboring property owners and the health of the BP District as a whole. Accordingly, the court reversed the Court of Common Pleas, and held that the Board erred in denying Appellant’s application for a variance to repurpose half of the Building for religious, training and education uses.

Appeal of Redeemed Christian Church of God, 2016 WL 7449224(PA Commwlth 12/28/2016)


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