PA Appeals Court Holds Property Owner Did Not Satisfy the Minimum Variance Test

This post was authored by Matthew Loescher, Esq.

NOA Properties purchased an unused property at a sheriff’s sale in 2013, but did not immediately begin work on the Building. In August 2016, Mt. Airy USA, a local nonprofit, initiated legal action against the property owner pursuant to the Abandoned and Blighted Property Conservatorship Act, (“Act 135”). In the Act 135 proceedings, common pleas held the subject property was blighted and abandoned, and ordered the property owner to remediate the hazards the property posed to the community. NOA Properties applied for the required building permit with the City’s Department of Licenses and Inspections (“L&I”), but L&I denied the permit application because the proposed multifamily use was not permitted in the RTA-1 district. NOA Properties then appealed L&I’s decision to the Board, seeking a use variance to allow conversion of the Building into an 18-unit apartment building with 19 indoor parking spaces. The Board issued an order denying Owner’s request for a variance, and Common pleas reversed.

The court first analyzed whether the Board erred in holding that the owner failed to meet the Minimum Variance Test. Appellants contended that pursuant to the current version of the Code, application of the Minimum Variance Test to both use and dimensional variances was required. In its finding of fact regarding Mr. Ritter’s testimony about the Minimum Variance Test, the Board noted his statement that 18 units was “the least that should be considered” because the Building already existed and the alternative to development would be to demolish the Building. The court found that this finding did not explain, however, whether 18 units was the minimum viable use of the property, nor provide the reasons for the belief that 18 units was not an “overuse.”

The court found that although the Board did not make the credibility and weight determinations explicit, its conclusion that the owner “did not establish” satisfaction of the Minimum Variance Test fairly encapsulated those implicit determinations. Thus, viewing the evidence before the Board in the light most favorable to Appellants, the court held that the Board did not abuse its discretion in concluding that the property owner did not establish satisfaction of the Minimum Variance Test.

Metal Green, Inc. v City of Philadelphia, 2020 WL 4289782 (PA Cmwlth 7/28/2020)