# North Chestnut Hill Neighbors v. Zoning Board of Adjustment > Commonwealth Court of Pennsylvania · July 5, 2007 · 928 A.2d 418 URL: https://www.frixlaw.com/law-library/cases/9649542 ## Case - **Full name:** NORTH CHESTNUT HILL NEIGHBORS, Appellant v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA and Woodmere Art Museum - **Court:** Commonwealth Court of Pennsylvania - **Decided:** July 5, 2007 - **Citations:** 928 A.2d 418; 2007 Pa. Commw. LEXIS 368 - **Precedential status:** Published - **Opinion:** Dissent by Pellegrini - **Judges:** McGinley, Pellegrini, Friedman - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649542 ## Opinion text DISSENTING OPINION BY Judge PELLEGRINI. Because a grant of a use variance for a use already in existence is an unknown and unauthorized zoning remedy, I respectfully dissent. Woodmere Art Museum (Museum) is an art museum in a five-story Victorian mansion on five-and-one-half acres in the Chestnut Hill area of Philadelphia. The area is zoned R-l Residential under the Philadelphia Zoning Code (Zoning Code) in which institutional uses are not allowed. However, because the Museum existed before the Zoning Code’s enactment and opened to the public in 1940, normally, it would be considered as a non-conforming use. Over the years, the Museum has received several variances. In 1976, a use variance was sought for the construction of a parking lot. Other “use” variances were granted in 1980, 1982 and 2000 for expansions of the art gallery and the expansions of the Museum’s administrative offices with attendant parking. No explanation was given why variances were sought rath *428 er than special exceptions to expand a legal non-conforming use. The Museum applied for a permit to build a two-story addition with a cellar for use as an art museum on the first and second floor with art storage and maintenance in the cellar; a one-story addition for use as an accessory mechanical room for erection of an oil tank; reconfiguration of the private parking lot with a new total of 82 spaces; and a retail gift shop, all as part of the existing Museum, with an accessory office, instructional classes and an accessory storage shed. The Department of Licenses and Inspection denied the permit because the requested uses were not permitted in the R-l District as they were extensions of uses previously approved by the zoning board and had to also be approved. The Museum appealed, contending that the proposed expansion met the requirements for a use variance and was a reasonable modification of its earlier use variances. Even though it was a legal nonconforming use, the use variance was sought because Section 14 — 104(4)(b) of the Zoning Code provides that a “nonconforming structure or use shall cease to be considered as such whenever it becomes the subject of a variance, granted by the [Board] or ordered by a Court, and its non-conforming status shall not be reinstated thereafter.” The North Chestnut Hill Neighbors (Neighbors) opposed the grant of a variance. Following hearings, the zoning board granted the Museum’s request for a use variance subject to conditions, and the trial court affirmed on appeal. The Neighbors then appealed to this Court contending that the Museum did not meet the standard for the grant of a use variance. Holding that the unnecessary hardship requirement was met because of the zoning board’s finding that the current Museum suffers from water run-off, lacks “back of the house facilities, and would be not be detrimental to the health welfare and safety of the community as there was not a showing of an adverse impact on the neighboring community,” the majority remands to the Board to make findings that the use variance sought was the minimum use variance needed to afford relief. I disagree with the majority because I do not believe use variance standards are applicable, but instead, the expansion of a non-conforming use should apply. A use variance involves a request to use property for a purpose that is wholly outside zoning regulations because otherwise it would be practically valueless. To show that an unnecessary hardship is needed for the grant of a use variance, one must prove that: (1) the physical features of the property are such that it cannot be used for a permitted purpose; (2) the property can be conformed for a permitted use only at a prohibitive expense; or (8) the property is valueless for any purpose permitted by the zoning ordinance. SPC Company, Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 773 A.2d 209 (Pa.Cmwlth.2001). The applicant must show the hardship is unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district. Laurento v. Zoning Hearing Board of the Borough of West Chester, 162 Pa.Cmwlth. 226 , 638 A.2d 437 (1994). Where a condition renders a property almost valueless without the grant of a use variance, unnecessary hardship is established. Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of the City of Philadelphia, 787 A.2d 1123 (Pa.Cmwlth.2001). While there may be some inconvenience resulting if the variance is not granted, there is no showing that the property is almost valueless if the requirements for *429 the zone are followed because it still could be used for the same purpose that it has been used for before, that is, as a museum. There is also no unique hardship caused by any condition of the land placement that forecloses the property being used as zoned because there is nothing to show that it could not be developed for single-family homes. In recounting these use variance principles, I realize that there is a disconnect with what is being sought because the Museum is not contending that it cannot develop the property as zoned or that it is valueless when it is occupied by a world-class museum. The reason for that disconnect is because what is being sought is not a use variance, but an expansion of a legal non-conforming use, and I believe that is the proper standard to employ in evaluating this application. Despite Section 14-104(4)(b) of the Zoning Code’s provision that a use ceases if a variance has ever been granted, we have continued to apply the expansion of a nonconforming use standard, 1 even though what was requested was a use variance. In Civera v. Zoning Board of Adjustment, 39 Pa.Cmwlth. 499 , 395 A.2d 700 (1979), involving the 1976 variance for the Museum’s parking lot, we stated: We affirm on the basis of Judge Gel-fand’s thorough opinion of June 22,1977, at No. 4366 July Term, 1976, Court of Common Pleas of Philadelphia County (as yet unreported), which correctly applied the principles enunciated in Peirce Appeal, 384 Pa. 100 , 119 A.2d 506 (1956) and Mack Zoning Appeal, 384 Pa. 586 , 122 A.2d 48 (1958) to the special circumstances of the off-street parking needs involved in a natural expansion of applicant’s nonconforming use. (Emphasis added.) Because what is sought here is an expansion of a legal non-conforming use, I would remand for the zoning board to make a finding on the status of the Museum as a non-conforming use, and, if so, to address whether the Museum was entitled to expand its art museum under the natural expansion doctrine. Accordingly, I respectfully dissent. . See Arter v. Philadelphia Zoning Board of Adjustment, 916 A.2d 1222 , Pa.Cmwlth.2007. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649542. Public record. Not legal advice.