Renaissance Real Estate Holdings, L.P. v. City of Phila. Zoning Bd. of Adjustment

199 A.3d 977

RENAISSANCE REAL ESTATE HOLDINGS, L.P., Appellant

v.CITY OF PHILADELPHIA ZONING BOARD OF ADJUSTMENT

No. 1410 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued November 13, 2018

Decided December 6, 2018

William J. O'Brien, II, Philadelphia, for appellant.

Coren J. Wise, Philadelphia, for appellee, Central Roxborough Civic Association.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE SIMPSON

In this zoning appeal, Renaissance Real Estate Holdings, L.P. (Applicant) asks whether the Court of Common Pleas of Philadelphia County (trial court) erred in affirming a decision of the City of Philadelphia Zoning Board of Adjustment (ZBA) that refused to approve Applicant's proposed three-family dwelling as a non-conforming use. Applicant primarily argues that the ZBA erred in determining that the Philadelphia Zoning Code (Zoning Code) prohibits Applicant's proposed replacement of its existing, lawful non-conforming use. Upon review, we affirm.

I. Background

Applicant owns the property located at 451 Green Lane in the City of Philadelphia's (City) Roxborough neighborhood (property). The property is a 3,740 square-foot, mid-block lot located in an RSA-3 Residential Single-Family Detached zoning district.¹ The property is improved with a three-story (35-foot), vacant, detached residential structure. The existing structure is comprised of a three-family dwelling, with one dwelling unit on each floor. Two of the dwelling's units are two-bedroom units; the third unit is a one-bedroom unit.

In October 2015, Applicant applied to the Philadelphia Department of Licenses and Inspections (L & I) for a zoning/use registration permit for the proposed "complete demolition of all existing structures and for the erection of a new three unit multi-family dwelling with porch, rear deck, and accessory roof deck(s) with pilot house(s) to enclose stair and landing only as per plans" on the property. ZBA Op., Finding of Fact (F.F.) No. 1 (emphasis added). L & I determined that the proposed use/construction did not meet the Zoning Code's requirements because: (1) multi-family residences are not permitted in the RSA-3 district; (2) three accessory parking spaces are required, and Applicant proposed no parking spaces; and (3) a minimum side yard width of eight feet is required, and Applicant proposed a five-foot-wide side yard. As a result, L & I issued a notice of refusal. Applicant appealed L & I's refusal to the ZBA.

In its application for appeal, Applicant stated:

[Applicant] is the owner of a three-story, three-family dwelling [on the property]. The existing structure is affected by substantial structural defects. [Applicant] proposes to replace the existing structure with a Code-compliant building dedicated to the same use, three-family dwelling. Strict application of the Zoning Code imposes a hardship on the [p]roperty. The grant of relief will have no adverse effect on the public health, safety or welfare.

F.F. No. 3. A hearing ensued before the ZBA.

After the hearing, the ZBA voted to deny Applicant's appeal of L & I's notice of refusal. In support, the ZBA made the following findings.

In 1981, L & I issued a use registration permit for the property identifying the approved use as a three-family dwelling. Applicant purchased the property in July 2015, at which time it was vacant. Applicant proposes to demolish the existing structure on the property and replace it with a three-story (38-foot) structure, comprised of three side-by-side, three-story, two-bedroom dwelling units, each with a separate entrance and each with a roof deck and pilot house. Each of the proposed dwelling units would be approximately 1,500 square feet for a combined gross floor area of 4,500 square feet.

Before the ZBA, project architect Rustin Ohler (Applicant's Architect) testified that the new structure's footprint would be "slightly different" than that of the existing building in that it would have a five-foot side yard as opposed to the existing four-foot side yard, and it would be "slightly deeper in depth than [the] existing [building]." F.F. No. 12. Applicant's Architect did not specify how much deeper the proposed structure would be than the existing structure, nor did he indicate the gross floor areas of the existing and proposed structures. Additionally, the exhibits Applicant submitted do not provide this information.

In addition, Fred Abrams, Applicant's Owner, testified regarding his understanding of the property's status as a three-family dwelling and his proposed development of the property. Applicant's Owner testified he inspected the property before purchasing it; at that time, it was configured with a three-family dwelling. He described the property as vacant and "in pretty poor condition" and stated he was "not certain when it was last occupied." F.F. No. 19. Applicant's Owner testified he initially intended "to clean up the violations and to renovate the building" but after "adding the numbers up, and doing it to the standards that I have for renovation, it made more sense to possibly start from scratch." F.F. No. 20 (emphasis added). Applicant's Owner acknowledged that he could not rent the existing building as a three-family dwelling and estimated it would take him 60 days to "paint it, carpet it, maybe the appliances have to be – some carpentry." F.F. No. 21. When asked by the ZBA "Why don't you just do that[?]" Applicant's Owner responded: "I have an existing three unit building that by right I can go in and do work, and keep it as a three unit building. I would like to do something better than that. I'd like to start from scratch." F.F. No. 22 (emphasis added).

Applicant's Owner further testified that he obtained a certification statement from the City identifying the property's lawful use as a three-family dwelling at the time of purchase, and he subsequently obtained a rental license for three units. F.F. No. 23. A certification statement issued to Applicant in July 2015 indicated that L & I records showed the property to be legally registered for use as a three-family dwelling. The certification statement also provided "IF THIS PROPERTY IS NOT BEING USED AS INDICATED ABOVE, IT IS THE OWNER'S RESPONSIBILITY TO FILE FOR A NEW USE REGISTRATION PERMIT WITH [L & I'S] ZONING UNIT." F.F. No. 24.

Applicant's counsel stated that the property's use as a three-family dwelling is "not out of character with this block." F.F. No. 25. He submitted a list of "19 buildings in the 400 block of Green Lane which are all legal non[-] conforming [multi-family] uses," along with photographs and zoning records for each building. F.F. No. 26. Office of Property Assessment records submitted for 15 of those properties show the existing buildings on the properties range from 1,247 to 3,405 square feet. Applicant's counsel did not mention the number of single-family homes on the block, but he stated "there are fewer single-family homes than non[-]conforming [multi-family dwellings]." F.F. No. 28. When the ZBA Chairperson asked why the property could not be used for a single-family home, Applicant's counsel responded that Applicant "does not need to show a hardship to replace a legal non[-]conforming use that is a property right." F.F. No. 29 (emphasis added). Applicant's counsel stated: "[Applicant] [is] here to show hardship on the two remaining refusals, which is the side yard and the parking." Id. On the non-conforming use issue, Applicant's counsel stated, "the threshold issue ... is whether or not the use has been abandoned." F.F. No. 30. He argued that neither discontinuance of the use for a specified time period nor the "lapse of a license" was sufficient to establish abandonment. Id.

Prior to appearing before the ZBA, Applicant presented its proposal to the Central Roxborough Civic Association (CRCA), the registered community organization for the area, at a public meeting. A vote taken at the meeting showed 25 attendees in opposition to the project and none in support of it. In a written statement, CRCA President Donald Simon (CRCA President) stated, "a non-conforming use is abandoned after three years of vacancy and voluntary demolition." F.F. No. 32. Describing the area at issue, the CRCA President wrote that although there are "some rental units, the 400 Block of Green Lane is predominately owner-occupied single family homes." F.F. No. 33. The CRCA President and a number of CRCA members also appeared at the ZBA hearing and stated their opposition to the proposed development.

Kay Sykora, who resides at 445 Green Lane, described the proposed structure as "about twice the size of the building that is there." F.F. No. 35. She stated: "I think my opposition is just [to] the sheer scale of this. You are talking the equivalent of three trinities turned sideways. This is very different than the three apartments stacked on top that pre-existed." Id. Sykora submitted photographs of recently renovated properties in the immediate area, which showed "there is a commitment to this area as a single-family residential area." F.F. No. 36.

Ray Feinsehill, an attorney representing Debra Valenti-Epstein and John Hagarty, who own and reside at 443 Green Lane, read into the record a letter from his clients opposing Applicant's proposal. Valenti-Epstein and Hagarty's grounds for opposition included: Applicant's proposal is for "three trinity townhouses" each with "separate first floor entrances, party walls to separate them, and separate rooftop decks"; the proposed structure is "massive" and "more than double the size of the existing house"; [and] the proposed townhouses "are not in scale with the surrounding houses and are not the least minimal [sic] required to achieve one three-family dwelling ...." F.F. No. 37.

In addition, CRCA Board Member Alexander Fidrych asserted that the existing three-family use of the property will, by virtue of the Zoning Code, "be extinguished when the structure is...