Posted by: Patricia Salkin | March 12, 2017

PA Appeals Court Reverses ZBA’s finding that Denial of Variance Would Result in Unnecessary Hardship

Chestnut Hill Community Association appealed from the Philadelphia County Common Pleas Court’s order denying their appeal from the City of Philadelphia Zoning Board of Adjustment’s decision granting a variance to Jonathan Bernadino and Lindsay Bernadino for an open-air parking space at their property. The Bernadino’s proposed to create a 12’ by 19’4” driveway that would be accessed by a 12’ curb cut at the front of the property. The Department refused the request because the proposed space would not meet the required setback requirements and Section 14-803(1)(b)(.1)(.a)(.ii) of the Philadelphia Zoning Code expressly prohibited accessory surface parking spaces in front, side and rear yards.

On appeal, Appellants argued that the ZBA misapplied Section 14-803(1)(b)(.1)(.a)(.ii) of the Zoning Code, and failed to make findings that physical circumstances unique to the property created an unnecessary hardship. Appellants also alleged that the ZBA and the trial court erred by failing to fully consider the Zoning Code’s spirit and purpose, the neighborhood’s essential character, and the community interest and public safety. The court found that in circumstances such as this, in which owners are prohibited from having a rear parking space, the owners’ physical inability to reach such a space could not constitute a hardship. As such, the court held that there was no substantial evidence to support the ZBA’s conclusion that denying the variance would result in a hardship due to physical circumstances or conditions unique to the property. Appellants next argued that their hardship was the lack of parking available in the neighborhood, particularly at night when they returned home from work. The court rejected this argument, finding that while a shortage of neighborhood parking could present a hardship to owners, it was not a hardship based upon a condition unique to the property. Accordingly, the trial court’s order was reversed.

In Re: Appeal of Chestnut Hill Community Association, 2017 WL 835411 (PA Cmwlth 3/3/2017)


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