The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Frank Garcia :
: No. 134 C.D. 2020
:
: Argued: June 10, 2021
Appeal of: Frank Garcia and :
Kenneth Woods :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE McCULLOUGH FILED: May 10, 2022
Frank Garcia and Kenneth Woods (Appellants) appeal the December 11,
2019 order of the Court of Common Pleas of Philadelphia County (trial court), which
affirmed the decision of the Philadelphia Zoning Board of Adjustment (ZBA) to grant
a variance for property located at 2600-40 Hagert Street, Philadelphia (Property). The
dispute concerned a project proposed by Spanish Capital Investment 5, LLC, and MYL
Associates, L.P. (collectively, Applicant), to develop the Property, which had been
abandoned for decades, in a manner that would include a multi-family residential use.
Because the Property’s zoning classification allowed only for single-family residential
uses, this proposal required a variance, which the ZBA granted.
Background
The Property is a rectangular, 45,664.6-square-foot lot located in the Olde
Richmond section of Philadelphia. It is bounded by three streets—Almond, Hagert,
and Boston. The Property’s zoning classification is RSA-5, which allows for single-
family residential use. The Property is abandoned and has been vacant for many years.
(Trial Ct. Op. at 1-2; Reproduced Record (R.R.) at 760a-61a.)
Applicant initially filed a zoning/use permit application with the
Philadelphia Department of Licenses and Inspections (L&I) in 2018, seeking to create
a residential development at the Property. The proposal involved relocating the lot
lines on the Property to create three new parcels—Parcels A, B, and C; constructing
five, four-story structures for use as 30 residential dwelling units on Parcel A; and
constructing 11, four-story structures for use as single-family dwellings on Parcel B.
Applicant’s proposal required use variances for multi-family household living. On July
31, 2018, L&I issued a Notice of Refusal, which Applicant appealed to the ZBA. On
September 13, 2018, and October 18, 2018, Applicant met with the Olde Richmond
Civic Association (ORCA) about the project. On September 18, 2018, ORCA
submitted a letter of opposition to the project. (Trial Ct. Op. at 2.)
Applicant submitted the project for review by the Civic Design Review
(CDR) of the Philadelphia City Planning Commission (PCPC) at PCPC’s meetings on
October 2, 2018, and November 6, 2018. Following those meetings, PCPC sent a letter
to the ZBA stating that it and the CDR supported the project and Applicant’s variance
requests. However, a Philadelphia City Councilman, Mark Squilla, opposed the project
and sent two letters to that effect to the ZBA. Id.
Following the refusal from L&I, and in response to Applicant’s meetings
with ORCA and PCPC, Applicant altered the proposal in an effort to ameliorate some
of the concerns that had been expressed by the community. The changes included: (1)
a reduction of the building size on Parcel A; (2) a reduction of the total number of
residential units by approximately 25%; (3) creation of a pedestrian walkway; (4) an
increase in the amount of open area, rear yard depth, and side yard width; and (5) an
2
increase in the landscaping and incorporation of existing trees (Revised Plan). Id. at
3. The Revised Plan called for the erection of 10, four-story, two-family structures
(duplexes) on Parcel A, and the erection of 11, four-story structures on Parcel B to be
used as single-family dwellings. The Revised Plan thus provided for a total of 31
residential units—a decrease of 10 units from the original proposal.
On December 12, 2018, the ZBA held a hearing on the project to consider
Applicant’s variance requests. Appellants, who are neighbors of the Property, opposed
the development. Applicant’s project architect, Rustin Ohler, testified about the
Property and the surrounding neighborhood. Ohler testified that Parcels A and B
totaled over 24,800 square feet. Although the Property is zoned RSA-5 for single-
family residences, Ohler noted that the Property is immediately adjacent to the
Aramingo commercial corridor, and that it is near other properties that, although
technically also zoned RSA-5, contain active commercial or industrial uses. Other
neighboring lots, Ohler detailed, contain multi-family residences. With regard to
concerns about parking and traffic congestion, Ohler explained that the proposal sought
to provide off-street parking, that Applicant was willing to add three more parking
spaces if the community agreed to other adjustments to the proposal, and that Applicant
was willing to work with city authorities to improve existing traffic conditions. Ohler
additionally noted that, if the Property was developed by-right to include only single-
family residences, there would be no requirement that Applicant provide any off-street
parking at all, which would increase congestion. (ZBA Findings of Fact (FOF) ¶¶10-
19; R.R. at 2a-4a.)
Also testifying on behalf of Applicant was a representative of Spanish
Capital Investment 5, LLC, Keith Casey. Casey explained that, if Applicant’s
development proposal was approved, Applicant would use corners of Parcel C to create
3
a pocket park and community garden and grant either an easement or a lease for the
community’s use. This arrangement would apply during the duration of a neighboring
property’s lease of parking spaces on that Parcel, after which time a permanent
easement could be granted to the community. (FOF ¶18.)
Multiple area neighbors appeared and testified in opposition to
Applicant’s proposal, expressing concerns with the size, density, and multi-family use
of the Property, as well as traffic congestion and parking problems. Jennifer Bazydlo,
Esq., a neighborhood resident and attorney (and counsel for Appellants in this appeal),
testified and argued in opposition, contending that Applicant had not demonstrated
sufficient hardship to justify a variance, that the Property could be developed in a by-
right (single-family) manner, and that the proposal did not represent the minimum
modification necessary to accommodate any hardship. Attorney Bazydlo asserted that
the proposal was out-of-character with the neighborhood. She further contended that
there were unpaid property taxes on the Property, and that under the applicable
ordinance, a variance may not be granted until such taxes were paid. (FOF ¶¶26-28.)
ORCA Board Member and Zoning Head Christopher Sawyer represented
ORCA at the hearing and voiced community opposition to the project. Sawyer
emphasized that he was involved in the PCPC zoning remapping process, and that they
had considered the best use for the Property, given that it had sat fallow and vacant
since approximately 1980, and determined that zoning RSA-5 for single-family
residences was appropriate. Sawyer expressed particular concern with the traffic
congestion issues that he expected would follow from Applicant’s proposal. On cross-
examination, Sawyer acknowledged that there are properties surrounding the Property
that are zoned for commercial uses, and he agreed that many of the neighboring
properties zoned for single-family use have been legalized or used as multi-family
4
dwellings. Sawyer also acknowledged that PCPC voted in favor of approving
Applicant’s development proposal and variance requests. (FOF ¶¶29-32.)
In closing, Applicant’s counsel, David Orphanides, Esq., emphasized that
the project included off-street parking designed to reduce traffic impact, and that
Applicant had made revisions in response to community feedback, but nothing was
deemed acceptable. Attorney Orphanides noted that the project had been reduced to
include only single-family residences and duplexes, and argued that the commercial
and industrial uses directly adjacent to the Property would compromise the
marketability of single-family residences. Thus, Attorney Orphanides suggested, the
variance requested was de minimis. Attorney Orphanides argued that complying with
the RSA-5 zoning classification presented a hardship because the size and dimensions
of the lot would not allow it to be broken up into exclusively single-family residences
in a way that would allow for the provision of off-street parking while still making the
project economically viable. (FOF ¶¶33-35.)
After the December 12, 2018 hearing, the ZBA delayed its vote pending
further negotiations between Applicant and ORCA. Those negotiations failed to yield
an acceptable compromise. On February 6, 2019, the ZBA held another hearing and
received additional testimony and evidence. At that hearing, Applicant presented
evidence regarding its attempt to cooperate with ORCA, and detailed the reduced
financial viability of any further departures from the Revised Plan. On March 20, 2019,
the ZBA voted unanimously to grant Applicant’s requested use variance, allowing
multi-family household living on Parcels A and B.
5
In its conclusions of law, the ZBA related the requirements for approval
of a variance under the Philadelphia Zoning Code (Zoning Code or Philadelphia
Zoning Code):1
(a) that denial of the variance would result in unnecessary
hardship;
(b) that applicant did not create the unnecessary hardship
supporting grant of the variance;
(c) that the requested variance is the minimum variance
necessary to afford relief and the least modification possible
of the regulation in issue;
(d) that grant of the variance will be in harmony with the
spirit and purpose of the Zoning Code;
(e) that 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;
(f) that grant of 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;
(g) that grant of the variance will not adversely affect
transportation or unduly burden water, sewer, school, park,
or other public facilities;
(h) that 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
(i) that grant of the variance will not create significant
environmental damage or increase the risk of flooding, either
during or after construction.
(ZBA Conclusions of Law (COL) ¶4 (citing Philadelphia Zoning Code §14-
303(8)(e)(.1)).)
1
Phila., Pa. Zoning Code (2012), available at
https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-203439 (last visited
May 9, 2022).
6
The determination of “unnecessary hardship,” moreover, requires all of
the following findings:
(a) that there are unique physical circumstances or conditions
. . . peculiar to the property, and that the unnecessary hardship
is due to such conditions . . . .
(b) that because of those physical circumstances or
conditions, there is no possibility that the property can be
used in strict conformity with . . . this [Z]oning [C]ode, and
that authorization of a variance is therefore necessary to
enable the viable economic use of the property;
(c) that the use variance, if granted, will not alter the essential
character of the neighborhood . . . 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.
(COL ¶5 (citing Philadelphia Zoning Code §14-303(8)(e)(.2)).)2
With regard to hardship, the ZBA concluded that the “Property is a large
consolidated lot with three street frontages, surrounded almost exclusively by
commercial and industrial uses.” (COL ¶10.) The Property, the ZBA noted, “has
remained vacant and blighted the neighborhood for decades, but Applicant now seeks
to develop it as a mix of single-family homes and duplex condominiums.” Id. Finding
that the size and dimensions of the Property established a sufficient hardship, the ZBA
also concluded that this hardship was not self-imposed, that the requested variances
were the minimum necessary to afford relief, and that the development would not be
detrimental to public health, safety, or welfare. (COL ¶12.) With regard to the
2
These requirements for the establishment of entitlement to a variance and for the
determination of unnecessary hardship echo those set forth in the Pennsylvania Municipalities
Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. See
section 910.2(a) of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a).
7
minimum-necessary criterion, the ZBA noted that roughly half of the project would be
single-family dwellings as permitted in the RSA-5 zoning district, and that Applicant
had revised the plans multiple times to comply with all applicable dimensional
requirements and to reduce the number, density, and type of units as part of the PCPC
review process, resulting in PCPC’s support for the project. (COL ¶13.) In that vein,
the ZBA noted that Applicant had undertaken extensive good faith efforts to engage
with the community to resolve concerns with the proposal, despite ORCA’s continued
opposition. (COL ¶14.) The ZBA finally concluded that the project was consistent
with the Philadelphia Zoning Code’s purpose and would not adversely impact public
health, safety, or welfare, “including considerations of traffic, light and air, public
facilities, or the environment.” (COL ¶15.) Accordingly, the ZBA determined that the
requested variances were properly granted.
On April 1, 2019, Appellants filed an appeal of the ZBA’s Notice of
Decision to the trial court. The trial court recognized that its review was limited to a
determination of whether constitutional rights had been violated, an error of law had
been committed, or findings of fact necessary to support the adjudication were not
supported by substantial evidence. (Trial Ct. Op. at 5 (citing 2 Pa.C.S. §754(b); Lewis
v. Civil Service Commission, 542 A.2d 519, 522 (Pa. 1988)).) Substantial evidence,
the trial court correctly noted, is relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. Id. (citing Valley View Civic Association v. Zoning
Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983)). In reviewing the ZBA’s
determination, the trial court related, a court must not substitute its judgment for that
of the ZBA, and it may reverse only if the ZBA’s findings are totally without support
in the record. Id. (citing Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014);
Republic Steel Corporation v. Workmen’s Compensation Appeal Board, 421 A.2d 1060
8
(Pa. 1980)). The ZBA is the sole judge of the credibility of witnesses and the weight
afforded to evidence, and, assuming the existence of substantial evidence, a reviewing
court is bound by the ZBA’s findings that result from resolutions of credibility and
conflicting testimony. Id. (citing Macioce v. Zoning Hearing Board of the Borough of
Baldwin, 850 A.2d 882 (Pa. Cmwlth. 2004); Manayunk Neighborhood Council v.
Zoning Board of Adjustment of the City of Philadelphia, 815 A.2d 652 (Pa. Cmwlth.
2002)).
Although the trial court, like the ZBA, listed the criteria for a variance
within the Philadelphia Zoning Code, it noted that our Supreme Court has, in its words,
“boiled down” the criteria into three requirements: “(1) unique hardship to the
property; (2) no adverse effect on the public health, safety or general welfare; and (3)
. . . the minimum variance that will afford relief at the least modification possible.” Id.
at 8 (quoting East Torresdale Civic Association v. Zoning Board of Adjustment of
Philadelphia County, 639 A.2d 446, 447 (Pa. 1994)). After review of the record and
the parties’ briefs and oral argument, the trial court concluded that the ZBA did not err
in determining that the Property possessed a unique hardship; that the hardship was not
self-created; that the variance would not adversely affect public health, safety, or
welfare; and that the variances were the minimum necessary to afford relief.
Unnecessary hardship, the trial court noted, may be created by “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.” Id. at 9 (quoting Philadelphia Zoning Code §14-303(e)(.2)(.a)).
Moreover, the Supreme Court has made clear that, “[i]n establishing hardship, an
applicant for a variance is not required to show that the property at issue is valueless
9
without the variance or that the property cannot be used for any permitted purpose.”
Id. (quoting Marshall, 97 A.3d at 395).
The trial court agreed with the ZBA that “the physical shape, size and
character of the . . . Property qualifies as a unique hardship” under both [s]ection 14-
303 of the Philadelphia Zoning Code and governing precedent. Id. The Property “is a
45,664.6[-]square[-]foot vacant lot, with three (3) separate street frontages, in a
neighborhood that has a zoning classification that allows for single-family residential
use (RSA-5).” Id. at 10. The trial court reasoned that the “fact that the property has
sat unused and vacant for decades would seem to indicate that the [P]roperty possesses
a unique hardship that forestalls proper development.” Id. Evidence of the hardship
in developing the Property with single-family residences only, the court observed, was
presented in the form of testimony from Applicant’s architect, Rustin Ohler. Due to
the unique size and street frontage, Ohler testified, a by-right option would result in 16
single-family homes each 70 feet deep. Id. (citing December 12, 20183 Hearing
Transcript (12/12/2018 Hr’g Tr.) at 23). Moreover, Applicant provided uncontroverted
evidence that the Property “sits in an area that is a mix of industrial, commercial, multi-
family and single-family uses.” Id. (citing 12/12/2018 Hr’g Tr. at 31). Finally, the trial
court reiterated the ZBA’s observation that the Property had been vacant and blighted
the neighborhood for decades. Id. The trial court thus found adequate support in the
record for the ZBA’s determination that the Property suffered from a unique hardship
in the RSA-5 district due to its “unique size, shape, configuration and surroundings.”
Id. at 11. The hardship, moreover, was not self-created, because these features existed
at the time that Applicant purchased the Property.
3
For the referenced portion of Ohler’s testimony, the trial court incorrectly cited the transcript
from the February 6, 2019 hearing. The cited testimony appears in the transcript from the December
12, 2018 hearing.
10
The trial court further found sufficient support for the ZBA’s
determination that the variances granted were the minimum necessary to afford relief
to Applicant. The evidence of record demonstrated that the Revised Plan reflected a
substantial reduction in scope from the original proposal, reducing the proposed
development to half single-family residences and half duplexes. Id. at 12. Applicant,
further, revised the plans multiple times to comply with all applicable dimensional
requirements and to reduce the number and type of units, which allowed it to gain the
support of PCPC. Id.
Finally, the trial court found no error in the ZBA’s determination that the
variances would not detrimentally impact public health, safety, or welfare. Applicant
presented ample evidence to that effect, and “worked extensively with community
groups, even cutting into the financial lucrativeness of the venture, so as to ensure that
the [project] would not negatively impact the surrounding community.” Id. In support,
the trial court cited Applicant’s modification of the plans to accommodate parking
concerns, its commission of a traffic study and pledge to improve existing traffic
conditions, and its reduction of the building size on Parcel A and reduction of the total
residential units by 25%. Id. at 12-13. Moreover, the trial court opined that the project
was more contextually appropriate for the neighborhood than the existing auto repair
and warehouse uses that were adjacent to it. As the sole arbiter of credibility, the trial
court reasoned, it was within the ZBA’s authority to conclude that Applicant’s “good[-
]faith negotiations, [and] expert traffic, and expert safety analysis constituted
substantial evidence that the [project] will not endanger the public health, safety, or
general welfare.” Id. at 13.
Thus, the trial court found that the ZBA’s decision to grant the requested
variance was supported by substantial evidence. The trial court did not address
11
Appellants’ argument concerning unpaid property taxes, which Appellants raised in
their Pa.R.A.P. 1925(b) statement, and have pursued on appeal to this Court.
Appellants present three issues to this Court.4 They contend (1) that
Applicant failed to present substantial evidence of hardship; (2) that the proposed
variance was not the minimum variance necessary to afford relief; and (3) that the
variance should not have been granted because over $50,000 in property taxes were
due on the Property.
Arguments
Appellants principally take issue with the ZBA’s assessment of
hardship—that the Property is “a large consolidate[d] lot with three street frontages,
surrounded almost exclusively by commercial and industrial uses” and that the
Property “has remained vacant and blighted the neighborhood for decades, but
Applicant now seeks to develop it as a mix of single-family and duplex
condominiums.” (Appellants’ Br. at 13 (quoting COL ¶10).) Appellants assert that the
evidence showed that over 16 residential units are adjacent to the Property, so it is not
“surrounded almost exclusively” by commercial and industrial uses. Id.
4
Under our standard of review:
[W]hen, as here, the trial court did not take any additional evidence, an appellate court
is limited to determining whether the zoning board committed an abuse of discretion
or an error of law in rendering its decision. Township of Exeter v. Zoning Hearing
Board, 962 A.2d 653, 659 (Pa. 2009); Noah’s Ark Christian Child Care Center, Inc.
v. Zoning Hearing Board of West Mifflin, 880 A.2d 596, 596 (Pa. 2005), per curiam
(citing Valley View, 462 A.2d at 639). We may conclude that the zoning board abused
its discretion only if its findings are not supported by substantial evidence, which we
have defined as “relevant evidence which a reasonable mind would accept as adequate
to support the conclusion reached.” Exeter, 962 A.2d at 659; see also Valley View,
462 A.2d at 640, 642 (same). An appellate court errs when it substitutes its judgment
on the merits for that of a zoning board. East Torresdale, 639 A.2d at 448.
Marshall, 97 A.3d at 331 (citations modified).
12
Appellants quote the Philadelphia Zoning Code’s requirement that
hardship be established by a finding that 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.” Id. at 14 (quoting Philadelphia Zoning Code §14-303(8)(e)(.2)(.b)).
Appellants assert that Applicant failed to present evidence demonstrating that
compliance with the RSA-5 zoning designation was impossible. Appellants
acknowledge that the Property is located near commercial corridors and industrial uses,
but they maintain that this does not justify the finding that building only single-family
homes would present a hardship. Appellants contend that Applicant offered no
substantial evidence regarding the marketability of single-family homes that would
face the nearby commercial and industrial buildings, aside from the statements of
Applicant’s counsel. Although Applicant asserted that an exclusively single-family
development would present a financial hardship, Appellants argue that Applicant failed
to provide a financial evaluation to that effect, and that Applicant did not consider the
financial viability of obtaining dimensional variances to build smaller single-family
homes, rather than duplexes.
Appellants further note that the hardship requirements demand a showing
that the variance will “not alter the essential character of the neighborhood . . . nor be
detrimental to public welfare.” Id. at 16 (quoting Philadelphia Zoning Code §14-
303(8)(e)(.2)(.c)). Appellants argue that the project will negatively impact public
safety because it includes a driveway for off-street parking accessible from Almond
Street, which is a narrow, two-way street with no traffic controls and fast-moving
traffic. Appellants acknowledge that Applicant commissioned a traffic study that
found that no problems were likely, but Appellants note that the traffic study did not
13
consider pedestrian safety. Moreover, Appellants argue, the project would be
detrimental to the single-family character of the neighborhood, because nowhere else
in the neighborhood is there a block of duplex-style residences. Id. at 17.
With regard to their second issue on appeal, Appellants argue that the
ZBA erred in concluding that the requested variance did not reflect the minimum
necessary variance to afford Applicant relief. Appellants note that the Philadelphia
Zoning Code contains an exception to the minimum lot size requirement that would
allow Applicant to divide the Property into 31 single-family parcels. Id. at 18. Thus,
Appellants argue, the minimum variance necessary to afford relief to Applicant was
dimensional—building smaller single-family residences than otherwise would be
permissible. This would allow Applicant to build the same number of units as
Applicant’s proposal, but without including any duplexes.
Finally, Appellants contend that the Philadelphia Zoning Code did not
permit the ZBA to grant a variance to Applicant in light of the substantial amount of
unpaid property taxes due on the Property. Appellants rely upon Philadelphia Zoning
Code §14-303(15)(a)(.9), which states: “No special exception or variance shall be
granted unless the person who owns the property for which the application is made has
provided documentation satisfactory to the [ZBA] verifying that all of the person’s
taxes due on the subject property . . . are current or are subject to a payment agreement.”
(Appellants’ Br. at 19.) Appellants acknowledge the relevant exception from that
requirement:
If the applicant attaches a purchase and sale agreement
providing that the sale of the subject property . . . is
contingent upon approval of the application . . . the [ZBA]
may conditionally approve the application if it otherwise
meets the criteria for approval, with a condition that the
special exception or variance will be finally approved when
L&I is provided with a copy of the [ZBA’s] decision and
14
documentation verifying that all the taxes due on the subject
property are paid in full.
Id. (quoting Philadelphia Zoning Code §14-303(15)(a)(.9)(.d)). Appellants emphasize
that the ZBA may grant a conditional approval in such circumstances. Contrary to this
provision, Appellants assert, the ZBA granted Applicant an unconditional approval
despite the unpaid taxes on the Property. In any event, Appellants assert that Applicant
failed to provide the ZBA with the correct documentation to show that it obtained the
necessary tax clearances.
Applicant contends that there was no error in the ZBA’s decision, or in
the trial court’s affirmance of it. As to Appellants’ challenge to the finding of hardship,
Applicant asserts that Appellants merely dispute the ZBA’s credibility
determinations—a matter over which the ZBA is the sole judge. (Applicant’s Br. at
17.) That is, Applicant asserts that it presented ample evidence of the hardship faced
by the Property, and the ZBA credited that evidence. The hardship, Applicant argues,
is derived from the Property’s unique size, shape, and character. Id. at 18. Applicant
contends that the Property is extremely large for a single-family zoned lot. The fact
that it has three street frontages, as well, poses unique difficulties. Applicant notes that
evidence of the hardship was presented in the form of Ohler’s testimony, explaining
that a by-right option would result in 16 single-family homes each 70 feet deep and
over 20 feet wide, with a large amount of open space that would be out of context with
the surrounding area, where residences are less than 20 feet wide and have an average
of 25% open area. Id. at 19 (citing 12/12/2018 Hr’g Tr. at 23). Thus, Applicant
contends, the size of the lot creates a unique situation where a subdivision into single-
family homes would be extremely challenging. The fact that the Property has been
vacant and blighted for decades, in Applicant’s view, provides additional evidence that
it is not developable under its existing zoning designation. Id. at 19-20.
15
Further, Applicant notes that under Valley View, 462 A.2d at 640, the use
of adjacent and surrounding land is relevant to the determination of hardship.
(Applicant’s Br. at 20.) Here, Ohler’s testimony established that the Property is
immediately adjacent to a gym, which is on the Aramingo commercial corridor, that
the Property is immediately adjacent to industrial uses on the Boston Street side, multi-
family and commercial/light industrial uses on the Hagert Street side, and industrial
and commercial buildings catty-corner from the Property. Id. (citing 12/12/2018 Hr’g
Tr. at 9). An auto repair and body shop is nearby on Hagert Street, and many of the
properties zoned for single-family residences are in fact used as multi-family
residences. Id. at 21 (citing 12/12/2018 Hr’g Tr. at 11; ZBA FOF ¶31). Contrary to
Appellants’ suggestion, then, Applicant asserts that the surrounding area amply
supports a project that includes multi-family residences. Stressing the substantial
evidence standard, Applicant asserts that the ZBA’s finding of hardship was supported
by testimony from architects, the representative of the developer, and a real estate
appraiser, as well as evidence in the form of site plans, photos, and financial analysis.
The ZBA found Applicant’s evidence credible, and Applicant argues that this
determination should not be disturbed on appeal.
With regard to the minimum-necessary requirement, Applicant stresses
the ZBA’s conclusions of law recognizing that Applicant had revised the plans to
comply with all applicable dimensional requirements, to reduce the number of units
such that half of the project consisted of single-family residences, and that Applicant
had made good faith efforts to engage with the community about the project. Id. at 24-
25 (citing COL ¶¶13-14). These efforts, Applicant notes, were amply documented in
the record. The evidence also established, through Keith Casey’s testimony, that any
further reduction in the number of units would make the project financially unviable.
16
Specifically, Casey testified that Applicant’s proposal could be expected to result in a
return on investment of approximately 3.1%, and any unit count below 31 would result
in a loss. Id. at 26 (citing 2/6/2019 Hr’g Tr.; R.R. at 672a). This, in Applicant’s view,
demonstrates that not only did the Property present a hardship, but the variance
allowing Applicant to build a certain number of residences as duplexes was the
minimum variance necessary to afford relief from that hardship. Moreover, Applicant
stresses that off-street parking is not required in the RSA-5 district, so if it was to build
only single-family homes as Appellants suggest, it could do so without providing any
parking spaces—magnifying the community’s parking concerns. Id. at 27-28. Thus,
Applicant’s proposal, although necessitating a use variance, was even less disruptive
than Appellants’ alternative suggestion.
Applicant further contends that its proposal presented no concerns with
public health, safety, and welfare. Applicant again emphasizes the other uses in the
neighborhood, including auto repair and warehouse space, and contends that its
proposal was more contextually appropriate than those uses. Id. at 28. The community
had a specific concern with parking and traffic, and Applicant contends that it amply
addressed these issues. Applicant again stresses that single-family residences are not
required to have off-street parking at all, but Applicant sought to provide off-street
parking for nearly all of the proposed units. Id. Applicant also presented a traffic study
from Dynamic Traffic, which concluded that adding a driveway for the development
on Almond Street would provide safe and efficient access to the roadway system. Id.
at 29. Applicant notes that Appellants provided no evidence to the contrary. The ZBA,
Applicant stresses, was entitled to credit its evidence regarding public health, safety,
and welfare, including “considerations of traffic, light and air, public facilities, or the
environment.” Id. at 30 (quoting COL ¶15).
17
Finally, Applicant contends that any unpaid property taxes posed no
obstacle to its ability to obtain a variance. With regard to the Philadelphia Zoning
Code’s property tax requirement, and the exception thereto, Applicant acknowledges
that the exception allows that the ZBA “may conditionally approve the application if it
otherwise meets the criteria for approval.” Id. at 31-32. Applicant argues that this does
not indicate that the ZBA must include a conditional proviso to any approval. Id. at 32.
Instead, Applicant suggests, “the attachment of a conditional approval is only
applicable where the ZBA believes it is appropriate.” Id. Here, the ZBA declined to
make its approval conditional. Applicant pledges that any taxes will be paid before
closing.
Discussion
A. Unnecessary Hardship
As noted above, the Philadelphia Zoning Code provides that unnecessary
hardship in the case of a use variance requires the following findings:
(.a) That there are unique physical circumstances or
conditions (such as irregularity, narrowness, or shallowness
of the 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 . . . ;
(.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 . . . 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.
18
Philadelphia Zoning Code §14-303(8)(e)(.2)(.a)-(.d).
Our Supreme Court has summarized that, in the context of use variances,
“unnecessary hardship is established by evidence that: (1) the physical features of the
property are such that it cannot be used for a permitted purpose; or (2) the property can
be conformed for a permitted use only at a prohibitive expense; or (3) the property has
no value for any purpose permitted by the zoning ordinance.” Marshall, 97 A.3d at
329 (emphasis in original) (quoting Hertzberg v. Zoning Board of Adjustment of the
City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998)). However, the Supreme Court has
“repeatedly made clear that in establishing hardship, an applicant for a variance is not
required to show that the property at issue is valueless without the variance or that the
property cannot be used for any permitted purpose.” Id. at 330 (emphasis in original).
Indeed, the Supreme Court has repeatedly reversed decisions of this Court for requiring
a showing of impossibility of compliance or valuelessness to demonstrate hardship. Id.
(citing, inter alia, Hertzberg; Valley View). A showing of valuelessness, for instance,
“is but one way to reach a finding of unnecessary hardship; it is not the only factor nor
the conclusive factor in resolving a variance request.” Id. (quoting Hertzberg, 721
A.2d at 48). Rather, “multiple factors are to be taken into account” in assessing the
presence of unnecessary hardship. Id.
On the other hand, although valuelessness is not a required showing,
“[m]ere economic hardship will not of itself justify a grant of a variance.” Id. (quoting
Wilson v. Plumstead Township Zoning Hearing Board, 936 A.2d 1061, 1069 (Pa.
2007)). “[E]conomic factors are relevant,” the Supreme Court has held, “albeit not
determinative, in a variance assessment.” Id. at 331. Moreover, as Applicant
emphasizes, the Supreme Court has stated that, “[i]n evaluating hardship the use of
19
adjacent and surrounding land is unquestionably relevant.” Valley View, 462 A.2d at
640.
Applicant presented evidence that satisfies the criteria for a finding of
unnecessary hardship. In assessing that evidence, we must bear in mind that our review
is limited to a determination of whether Applicant provided substantial evidence—
relevant evidence which a reasonable mind would accept as adequate to support the
conclusion reached—and that the ZBA was the sole judge of the credibility of that
evidence and the weight to be afforded thereto.
With regard to the “unique physical circumstances or
conditions . . . peculiar to the property,” Philadelphia Zoning Code §14-
303(8)(e)(.2)(.a), Applicant presented the testimony of its architect, Rustin Ohler:
Q: And with the – given the dimensions of the lot, is it not
correct that we would basically – you would have two
options if you were to create a by[-]right plan with no parking
and that would be to either subdivide the lot basically down
the middle from Almond Street away and have lots facing on
Hagert and lots facing on Boston. They would be
approximately, what, 70-something feet deep?
A: Correct.
Q: And they would then be approximately 20 feet wide?
A: Correct.
Q: And how many of those would we have? How many of
those parcels would we have?
A: I don’t know.
Q: If I told you it was 16, would that sound reasonable?
A: From memory, I thought it was 17.
Q: And that would be what the minimum lot size
requirement? 1,440?
A: Of 1,140, yes.
Q: The other option would obviously be single lots that
would run street to street, but they would be very large lots.
They would have a minimum lot width of 16 feet, is that
correct?
A: Correct.
20
(12/12/2018 Hr’g Tr. at 22-23; R.R. at 31a-32a.) In his closing argument, Attorney
Orphanides explained that these dimensional issues created an unnecessary hardship:
The lot, it may be square or a rectangle but it’s an odd size in
its dimensions. It’s too long to run a lot street to street. And
then if you cut it in half down the middle, then you end up
with very wide lots, 20 feet – it’s 140-something feet from
Almond to Boston. So you end up with 70-something feet
by 20-something feet, very odd shaped lots compared to
everything around it. If you look at the zoning maps which
have the parcel map overlaid on it, it becomes a very odd
animal for that area if we’re going to do it buy [sic] right.
(2/6/2019 Hr’g Tr.;5 R.R. at 705a-06a.)
Applicant thus provided testimony via Ohler from which the ZBA could
conclude that “the size of [the lot] and the dimensions of it do not allow it to be broken
up necessarily in a way that would promote also providing off street parking and still
making it viable.” (FOF ¶35 (quoting 12/12/2018 Hr’g Tr. at 128); see also COL ¶10
(finding sufficient hardship because “[t]he Property is a large consolidated lot with
three street frontages”); Trial Ct. Op. at 9 (agreeing that “the physical shape, size and
character of the . . . Property qualifies as a unique hardship”).) Moreover, to the extent
that the size and dimensions of the lot gave rise to an unnecessary hardship, the
hardship was not self-created, because those features existed prior to Applicant’s plan
to acquire and develop the Property.
Applicant, moreover, presented ample, uncontradicted evidence
concerning the use of adjacent and surrounding properties, which included commercial,
industrial, single-family residential, and multi-family residential uses. (12/12/2018
Hr’g Tr. at 8-12, 32-34; R.R. at 17a-21a, 41a-43a.) Such evidence of “adjacent and
5
The transcript of the February 6, 2019 hearing is unpaginated.
21
surrounding land is unquestionably relevant” to a determination of hardship, Valley
View, 462 A.2d at 640, and it is evidence from which the ZBA reasonably could
conclude that Applicant’s proposed project would “not alter the essential character of
the neighborhood or district in which the property is located.” Philadelphia Zoning
Code §14-303(8)(e)(.2)(.c). Applicant presented evidence, through Casey’s testimony,
that it already had substantially reduced the size and scope of the proposed project, to
the point where it expected a return on investment of approximately 3.1%, and that
further reduction would make the project economically unviable. (2/6/2019 Hr’g Tr.;
R.R. at 668a-73a.) Such “economic factors are relevant, albeit not determinative” of
hardship, Marshall, 97 A.3d at 331, and this served as evidence from which the ZBA
could conclude that the Property could not “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.” Philadelphia Zoning
Code §14-303(8)(e)(.2)(.b) (emphasis added). Applicant’s reduction of the size and
scope of the project also allowed it to avoid any violation of dimensional requirements,
and, thus, “the hardship [could not] be cured by the grant of a dimensional variance.”
Id. §14-303(8)(e)(.2)(.d).
Applicant accordingly presented evidence that a reasonable mind could
accept as adequate to support the conclusion—substantial evidence—that strict
compliance with the Property’s RSA-5 zoning designation presented an unnecessary
hardship for purposes of the Philadelphia Zoning Code. The ZBA clearly credited
Applicant’s evidence, as was its prerogative, and Appellants have presented no basis
upon which to disturb the ZBA’s fact-finding and credibility determinations. Although
it is something of a lesser focus of Appellants’ argument, the same goes for the ZBA’s
determinations that the project would not be detrimental to the public welfare.
22
Appellants primarily express concern with traffic, however, the ZBA was entitled to
credit Applicant’s Traffic Assessment Report which indicated no safety problems, as
well as Ohler’s testimony that the project “opened ingress and egress and visibility at
the Property driveway, allowing adequate space for the current traffic patterns nearby.”
(FOF ¶20.) It is worth noting, moreover, that Appellants now suggest that Applicant
could have proposed the erection of 31 small single-family residences on the Property,
which would not allow for any off-street parking—a proposal that, common sense
dictates, would seem likely to increase Appellants’ concern with traffic and congestion.
In sum, given the ample evidence presented, we find no error or abuse of
discretion in the ZBA’s finding of unnecessary hardship, nor in the trial court’s
affirmance thereof.
B. Minimum Necessary Variance
Many of the same factors discussed above also demonstrate that there was
substantial evidence supporting the ZBA’s determination that the variance requested
was the minimum necessary to afford relief. The ZBA made several conclusions of
law concerning this factor—that “roughly half of the project will be single-family
dwelling use as permitted in the RSA-5 zoning district, that Applicant revised plans
multiple times to comply with all applicable dimensional requirement[s] and to reduce
density in number and type of units,” and that Applicant “undertook extensive and
lengthy project planning and good faith community engagement efforts to resolve
neighbors’ current and future concerns with the proposal, despite ORCA’s ultimate
opposition.” (COL ¶¶13-14.)
This Court has recently discussed the application of the minimum-
necessary requirement as it concerns use variances. See In re Ridge Park Civic
Association, 240 A.3d 1029, 1033-38 (Pa. Cmwlth. 2020). This minimum-necessary
23
requirement “applies to use variances despite the fact that, generally, ‘a use variance
marks a qualitative rather than a quantitative departure from an existing ordinance’ and
‘a minimum variance is [more] difficult to assess in use variance cases [than in]
dimensional variance cases[.]’” Id. at 1033 (quoting Paganico v. Zoning Hearing
Board of the Municipality of Penn Hills, 227 A.3d 949, 954-55 (Pa. Cmwlth. 2020)).
That is, the “minimum variance criterion is more readily and practically applicable to
quantifiable restrictions, such as dimensional requirements (i.e., distance or size),
rather than those that are not quantifiable, as are most use restrictions (i.e., types of
development).” Id. at 1033-34. As it concerns use variances, we noted that, once it is
established that use of the property in strict conformance with the governing ordinance
is unachievable, the minimum-necessary variance requirement can be satisfied “by
showing that of all the viable alternatives, the proposed use is the least departure from
the terms of the ordinance, or the most similar to the uses in the surrounding
neighborhood.” Id. Ridge Park Civic Association, moreover, further entailed a
determination as to the number of residential units necessary to build given the cost of
development in an area that presented technical challenges. “In other words,” we
noted, “the inquiry required resolution of the factual issue of a reasonable profit and
the minimum number of units necessary for it to be economically feasible to proceed.”
Id. at 1035.
As discussed above, the evidence produced before the ZBA thoroughly
addressed the inability to develop the Property in strict conformance with the Zoning
Ordinance, and Applicant provided evidence demonstrating both that its proposal
reflected the least possible departure from the Zoning Ordinance and that the
development would be in conformity with the surrounding neighborhood. As noted
above, uncontradicted evidence established that the use of adjacent and surrounding
24
properties included commercial, industrial, single-family residential, and multi-family
residential uses. (12/12/2018 Hr’g Tr. at 8-12, 32-34; R.R. at 17a-21a, 41a-43a.) The
fact that Applicant already had significantly reduced the size and scope of the project
lends support to the ZBA’s determination that the variance sought was the minimum
necessary. Casey’s above-referenced testimony regarding economic viability provides
significant further support, inasmuch as he specifically testified that additional
reduction in the project and the number of units sought to be built would make the
project economically unviable. (2/6/2019 Hr’g Tr.; R.R. at 668a (Casey describing the
reduction in the scale of the project and testifying that “anything under that
really . . . just does not financially work”).) Thus, Applicant provided evidence
addressed to the “factual issue of a reasonable profit and the minimum number of units
necessary for it to be economically feasible to proceed.” Ridge Park Civic Association,
240 A.3d at 1035. This evidence, which the ZBA was free to accept, supports the
ZBA’s determination that it provided the minimum variance necessary to afford
Applicant relief from the hardship presented by the Property’s zoning designation.
Accordingly, we find no error in the ZBA’s determination as to the
minimum-necessary variance requirement, nor in the trial court’s affirmance thereof.
C. Unpaid Property Taxes
Appellants’ third issue, however, is problematic for Applicant. Applicant
does not dispute that there were property taxes due on the Property at the time of the
hearings; rather, the parties differ over the interpretation of the relevant provision of
the Zoning Code. For clarity, it is worth setting forth this language in its entirety:
(.9) No special exception or variance shall be granted unless
the person who owns the property for which the application
is made has provided documentation satisfactory to the
[ZBA] verifying that all of the person’s taxes due on the
subject property pursuant to Title 19 of The Philadelphia
25
Code are current or are subject to a payment agreement; or
produces evidence that denial of the application will result in
an unconstitutional taking of the property for which it is
sought. The following exceptions shall apply:
* * *
(.d) If the applicant attaches a purchase and sale agreement
providing that the sale of the subject property to the applicant
is contingent upon approval of the application, together with
an authorization for the application by the current owner of
the subject property, the [ZBA] may conditionally approve
the application if it otherwise meets the criteria for approval,
with a condition that the special exception or variance will
be finally approved when L&I is provided with a copy of the
[ZBA’s] decision and documentation verifying that all of the
taxes due on the subject property are paid in full.
Philadelphia Zoning Code §14-303(15)(a)(.9)(.d) (emphasis added).
The parties do not dispute that the acquisition of the Property was
contingent upon approval of the requested variance, or that Applicant attached the
agreement as required. The dispute, rather, is over the use of the word “may” in the
relevant exception. Appellants argue that, if property taxes are unpaid, the ZBA’s
approval must be conditioned upon payment of the taxes. Applicant argues that the
word “may” means that the application of the exception is discretionary, and the ZBA
is authorized to choose whether to provide a conditional or a final approval.
Applicant’s interpretation of this language is unreasonable. It would be
absurd for the Zoning Code to specifically articulate the circumstances under which
the ZBA may approve a variance with respect to property with unpaid taxes, yet
provide the ZBA with unbridled discretion to ignore the Zoning Code. The language
at issue is an exception from a general rule that no variance “shall be granted” unless
the taxes due on the property are current or subject to a payment agreement. That
exception states that, if the requirements are met, the ZBA “may conditionally
26
approve” the application. The exception then goes on to address the circumstances
under which the “variance will be finally approved,” i.e., when L&I receives
documentation that the taxes have been paid. Despite the clarity of this language,
Applicant curiously suggests that the use of “may” in this section means that the ZBA
simply may skip the conditional-approval step and proceed directly to a final approval,
if it so chooses. This is simply an untenable reading of the language of the Zoning
Code.
Appellants’ counsel made her objections based on the tax status of the
Property amply clear at both hearings, and the parties and the ZBA thoroughly
discussed the relevant language of the Zoning Code. (12/12/2018 Hr’g Tr. at 50-58;
R.R. at 59a-67a; 2/6/2019 Hr’g Tr.; R.R. at 700a-02a.) Yet, the ZBA did not address
this concern in its Findings of Fact or Conclusions of Law. Furthermore, even though
Appellants raised the matter in their Pa.R.A.P. 1925(b) statement, which the trial court
quoted in its Rule 1925(a) opinion, the trial court did not address the issue either.
Given that it is undisputed that there are outstanding property taxes due
on the subject Property, that section 14-303(15)(a)(.9) of the Zoning Code plainly states
that a variance shall not be granted in such a circumstance, and that Applicant’s
contention regarding the exemption to that provision is untenable, it is clear that
Appellants have advanced a meritorious challenge to the ZBA’s decision in this regard.
Moreover, because Appellants clearly raised this issue at each step of the proceedings,
we find that the ZBA and the trial court erred in failing to address Appellants’
argument.
As such, although we have found no error in the ZBA’s determinations
with regard to Applicant’s demonstration of unnecessary hardship and that it requested
the minimum necessary variance to afford it relief, we must vacate the trial court’s
27
order to the extent that Applicant failed to establish that it was entitled to a variance
absent payment of the taxes due on the subject Property.
The order of the trial court is affirmed in part and vacated in part, and the
matter is remanded to the trial court to remand to the ZBA to address the issue relating
to unpaid taxes.
________________________________
PATRICIA A. McCULLOUGH, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Frank Garcia :
: No. 134 C.D. 2020
:
:
Appeal of: Frank Garcia and :
Kenneth Woods :
ORDER
AND NOW, this 10th day of May 2022, the December 11, 2019, order
of the Court of Common Pleas of Philadelphia County (trial court) is AFFIRMED
IN PART and VACATED IN PART, and the matter is REMANDED to the trial
court to remand to the Philadelphia Zoning Board of Adjustment to address the issue
relating to unpaid taxes in accord with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge