PA Appeals Court Affirms Grant of Use Variance to Multi-Family Residence in Industrial Commercial Mixed Use District

This post was authored by Matthew Loeser, Esq.

Liberties Lofts LLC appealed from an Order of the Court of Common Pleas of Philadelphia County, which affirmed the decision of the Philadelphia Zoning Board of Adjustment (ZBA) to grant a use variance to Hightop Brown, LLC. The use variance would have permitted construction of a 26–unit multi-family residence with one commercial space in an ICMX Industrial Commercial Mixed–Use Zoning District in the City of Philadelphia. On appeal, Liberties Lofts contended that: Hightop lacked standing to seek the requested zoning relief; and the ZBA erred in granting the variance where Hightop did not satisfy the requisite variance criteria.

At the outset, the court addressed Liberties Lofts concerns regarding Hightop’s ownership interest in the subject property, and, as a result, Applicant’s authority to file the initial application and its ability to seek zoning relief before the ZBA. The court found there was no reason why Liberties could not have raised those concerns at the ZBA hearing. Since Libterties conceded it did not raise the issue of Applicant’s standing to file the Application for Zoning/Use Registration Permit or to seek the requested variance before the ZBA, the court held this issue was waived.

Liberties Lofts next contended that there was no unnecessary hardship unique to the subject property. Specifically, Liberties argued that the subject property was an almost perfectly square corner lot, and it was improved with a one-story mixed commercial-industrial building. Applicant’s Commercial Real Estate Broker testified the only physical characteristic of the building that detracted from its usability and value were ceiling heights of less than 10 feet, but he admitted he did not measure the ceiling heights. Here, the ZBA’s finding of unnecessary hardship was based on its supported determinations that the subject property, which contained a mostly vacant, dilapidated warehouse, was valueless as zoned and could only be converted to a permitted use at a prohibitive expense. Furthermore, Liberties’ Representative did not dispute that Applicant’s proposed use complied with all of the Zoning Code’s dimensional requirements, including building height.

Lastly, Liberties argued the ZBA erred in cursorily finding and concluding that the use variance was the minimum variance necessary to afford relief. Specifically, Liberties asserted the number of units proposed here appeared to be random with no testimony about the number that could be built on the subject property. Here, however, the court found that the ZBA properly determined: Hightop presented sufficient evidence, including credible expert testimony, to establish that uses permitted under the existing zoning were not viable and that the requested variance was the least necessary to afford relief. Accordingly, the ZBA’s holding in favor of Hightop was affirmed.

Liberties Lofts, LLC v Zoning Board of Adjustment, 2018 WL 1569801 (PA Cmwlth 4/2/2018)