In re Ridge Park Ass'n

240 A.3d 1029

IN RE: Appeal of RIDGE PARK CIVIC ASSOCIATION

Appeal of: Ridge Park Association

No. 420 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued June 9, 2020

Decided September 28, 2020

Sarah Alderfer, Philadelphia, for Appellant.

Richard C. DeMarco, Philadelphia, for Appellees.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ELLEN CEISLER, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY SENIOR JUDGE LEADBETTER

Objector, Ridge Park Civic Association,¹ appeals from an order of the Court of Common Pleas of Philadelphia County affirming the decision of the City of Philadelphia's Zoning Board of Adjustment, which granted the application for use and dimensional variances filed by Applicants, David Henderson and Pasquale Bianculli.² We vacate the trial court's order and remand for further proceedings.

The property at issue consists of two adjacent parcels located at 6995 and 6997 Pechin Street in the City's Roxborough section. At 6995 Pechin Street, there is one single-family ranch house built in 1951. (Board's May 16, 2018 Decision, Finding of Fact "F.F." Nos. 1 and 6.) The parcels are zoned RSA-2 Residential, which stands for "residential single-family attached-2" under the Philadelphia Zoning Code (Zoning Code). Zoning Code § 14-401(1)(a). Applicants proposed consolidating the two parcels, demolishing the existing house, and erecting nine single-family townhomes in three sets of three. Each three-story townhome would consist of approximately 2100 square feet of floor space and, inter alia , have four bedrooms, a basement, a porch, and one parking space per unit. (F.F. Nos. 1, 9 and 11.) The development would feature one main vehicular entrance/exit and one parking space for handicapped accessibility. (F.F. No. 6.) In addition, a homeowners’ association would be formed. (F.F. No. 9.)

The City's Department of Licenses and Inspections refused the application. (Department's Feb. 13, 2018 Refusal; Reproduced Record "R.R." at 178-79.) The Department refused the request because Applicants proposed three structures, with three townhomes in each structure, whereas the zoning district permits no more than one principal structure per lot and prohibits multi-family use. Zoning Code § 14-401(4)(a). By right, Applicants could build one single-family home on each lot. The Department refused the request for dimensional variances because a front setback of forty-seven feet is required whereas Applicants proposed a seventeen-foot setback and a maximum curb cut width of twelve feet is permitted whereas Applicants proposed a sixteen-foot curb cut. (F.F. No. 2.)

On appeal to the Board, Applicants described the property "as an elongated lot with narrow frontage along Pechin Street and as adjacent at its rear lot line ‘to a commercial financial institution which changes the nature and tenor of the neighborhood.’ "³ (F.F. No. 3.) At the hearing, Applicants sought to establish undue hardship due to the property's unique circumstances. They presented the testimony of David Henderson, one of the owners; Raymond Tran, a real estate broker; Joseph Mulvihill, a licensed professional engineer; and Pasquale Pellicciotti, general contractor for the project. Henderson testified as to the overall details of how the development would be structured and what it would include. (F.F. Nos. 9-11.) Tran testified as to the lack of availability of the type of houses proposed. (F.F. No. 32.) Mulvihill testified as to the geotechnical issues that rendered the property challenging for building purposes and presented a report pertaining to the need for a constructive foundation consisting of a pillar-pier foundation system. (F.F. Nos. 16-18 and 22-23.) Pellicciotti testified that each pier would cost about $6800, that 147 piers would be required, and that the total cost of the piers and foundations would be a little less than $1.135 million. (F.F. Nos. 27 and 28.)

By way of opposition, Objector's vice president, Marlene Schleifer, testified that the neighborhood consisted of detached single-family homes and that the proposed development was "too much density for this space." (F.F. Nos. 36 and 37.) Previously, Objector had suggested to Applicants that four homes would be appropriate. (F.F. No. 34.) A City Planning Commission representative, Martin Gregorski, testified as to the agency's position that nine units constituted an overuse of the property. (F.F. No. 42.) Additionally, two neighbors testified. Of note, one of them testified that several of the neighbors had plans to buy the property twenty years ago to extend their respective yards but had not intended to build anything due to the soil issues and the cost of pilings. (F.F. Nos. 40 and 41.)

Subsequently, the Board unanimously voted to grant the application. Without taking additional evidence, the trial court affirmed. In so doing, the trial court determined that the variance criterion pertaining to the minimum variance necessary to afford relief (minimum variance criterion or minimization requirement) was inapplicable to use variances despite the provision in Section 14-303(8)(e)(.1)(.b) of the Zoning Code to the contrary. Objector's appeal to this Court followed.⁴

Pursuant to the Zoning Code:

The ... Board shall grant a variance only if it finds each of the following criteria are satisfied:

(.a) The denial of the variance would result in an unnecessary hardship. The applicant shall demonstrate that the unnecessary hardship was not created by the applicant and that the criteria set forth in [Zoning Code] § 14-303(8)(e)(.2) (Use Variances) below, in the case of use variances, or the criteria set forth in [Zoning Code] § 14-303(8)(e)(.3) (Dimensional Variances) below, in the case of dimensional variances, have been satisfied;

(.b) The variance, whether use or dimensional, if authorized will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue ;^[5]

(.c) The grant of the variance will be in harmony with the purpose and spirit of this Zoning Code;

(.d) The grant of the variance will not substantially increase congestion in the public streets, increase the danger of fire, or otherwise endanger the public health, safety, or general welfare;

(.e) The variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property;

(.f) The grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park, or other public facilities;

(.g) The grant of the variance will not adversely and substantially affect the implementation of any adopted plan for the area where the property is located; and

(.h) The grant of the variance will not create any significant environmental damage, pollution, erosion, or siltation, and will not significantly increase the danger of flooding either during or after construction, and the applicant will take measures to minimize environmental damage during any construction.

Zoning Code § 14-303(8)(e)(.1)(.a)-(.h) (emphasis added) (footnote added).

With regard to use variances in particular, the Zoning Code provides:

To find an unnecessary hardship ... the ... Board must make all of the following findings:

(.a) That there are unique physical circumstances or conditions (such as irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions) peculiar to the property, and that the unnecessary hardship is due to such conditions and not to circumstances or conditions generally created by the provisions of this Zoning Code in the area or zoning district where the property is located;

(.b) That because of those physical circumstances or conditions, there is no possibility that the property can be used in strict conformity with the provisions of this Zoning Code and that the authorization of a variance is therefore necessary to enable the viable economic use of the property ; (.c) That the use variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and

(.d) That the hardship cannot be cured by the grant of a dimensional variance.

Id. , § 14-303(8)(e)(.2)(.a)-(.d) (emphasis added).⁶

As for dimensional variances, the Zoning Code states that "[t]o find an unnecessary hardship ... the ... Board may consider the economic detriment to the applicant if the variance is denied, the financial burden created by any work necessary to bring [any existing] building into strict compliance with the zoning requirements[,] and the characteristics of the surrounding neighborhood." Id. , § 14-303(8)(e)(.3).

Objector first challenges the trial court's alternative holding that the minimum variance criterion is inapplicable to use variances.⁷ We agree that this determination is erroneous. As noted, Section 14-303(8)(.e)(.1)(.b) of the Zoning Code specifically provides that the minimum variance criterion is applicable to both use and dimensional variances. Additionally, even absent the language in the City's Zoning Code, this Court recently clarified that the minimum variance criterion applied to use variances. Paganico v. Zoning Hearing Bd. of the Municipality of Penn Hills , 227 A.3d 949, 954 (Pa. Cmwlth. 2020) ; see also Zelienople Borough v. Zelienople Borough Zoning Hearing Bd. (Pa. Cmwlth., No. 671 C.D. 2019, filed June 23, 2020), slip op. at 11, 2020 WL 3424047, at *6 (analyzed whether applicant's testimony was sufficient to support conclusion that use variance satisfied minimum variance criterion) and Upper Roxborough Civic Ass'n v. Zoning Bd. of Adjustment, City of Phila . (Pa. Cmwlth., No. 372 C.D. 2019, filed May 4, 2020), slip op. at 18 n.10, 2020 WL 2109436, at *8 n.10 (character...