Opinion
No. 1164 C.D. 2011
03-21-2012
Anne Donovan and Paul Donovan v. Philadelphia Zoning Board of Adjustment and City of Philadelphia and Frank Paiva, Jr. Appeal of: Frank Paiva, Jr.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Frank Paiva, Jr. appeals from the May 17, 2011 Court of Common Pleas of Philadelphia County's (trial court) order reversing the City of Philadelphia's Zoning Board of Adjustment (Board) decision denying Anne and Paul Donovans' (the Donovans) variance request. There are essentially two issues for this Court's review: (1) whether the Zoning Board properly denied the Donovans' variance; and (2) whether the trial court erred by granting the variance as a de minimis deviation from the Philadelphia Zoning Code (Zoning Code). We reverse.
Anne Donovan owns a property located at 841 North 24th Street in Philadelphia, which consists of a multi-unit, three-story row house and a small yard located at the corner of 24th and Parrish Streets, in an R-10A Residential District (Property). Mr. Paiva owns the property located at 843 North 24th Street, which is immediately adjacent and to the left of the Property. On December 24, 2009, on his sister's behalf, Paul Donovan filed an application with Philadelphia's Department of Licenses and Inspections (Department) for a Zoning/Use Registration Permit (Zoning Permit) to build a fence 10 feet high, and create an off-street parking space measuring 10 feet by 18 feet and 11 inches, behind the house on the Property. On December 26, 2009, the Department refused the Zoning Permit because the Zoning Code prohibits fences higher than 6 feet, and parking spaces larger than 8½ by 18 feet. On December 31, 2009, the Donovans appealed the Department's decision to the Board.
The Department initially refused the permit on December 26, 2009; however, because the Department examined the wrong address, a corrected refusal was issued January 10, 2010.
On February 23, 2010, the Board held a hearing at which Ms. Donovan, Richard Riggs and Mr. Paiva testified. According to the record, the Donovan and Paiva yards are separated by a cement abutment with a wooden fence on top. Mr. Riggs and Ms. Donovan live together, and plan to renovate the Property from a 4-family residence to a 3-family residence by combining the two first floor apartments into one. According to Mr. Riggs, they intend to move into the first floor apartment if they are permitted to create the requested parking space. Mr. Riggs testified that he and Ms. Donovan travel, and want the space to park their car for long periods of time. The proposed parking space will be created by the removal of a small addition at the rear of the Property, leaving a space with an area of 17 feet and 7 inches by 16 feet and 11 inches, adjacent to Parrish Street. Access to the parking space from Parrish Street requires a 12 foot curb cut. The proposed wrought iron fence to protect the car would be flush with the side of the house and extend rearward adjacent to Parrish Street. Ms. Donovan and Mr. Riggs obtained signatures of residents in support of their application.
Mr. Paiva testified that denying the variances would create no hardship for the Property because it has been continuously rented for at least the 22 years he lived next door. He further testified that the proposed parking space detracts from the neighborhood, in which there is no off-street parking. He specifically said:
in a community like ours, where we are all sardined together in very close proximity, . . . you get to know your neighbors - and when you have - a parking [space] in the back of the house, the neighbors tend to enter and exit from there. So you don't get to see them.Reproduced Record (R.R.) at 50a-51a. Mr. Paiva testified, however, that his greatest concern about the variances being granted is the safety risk. First, he testified there is a risk of fire by having the car so close to his house. Some of the homes have stood at least 120 years, and they are 35 feet high without fire escapes. He further maintained that Ms. Donovan and Mr. Riggs are contractors who may park trucks in the space, which would increase the potential fire hazard. Second, Mr. Paiva alleged that because children walk and ride bicycles on the sidewalk, creating a curb cut in the Parrish Street sidewalk will place them at risk. Mr. Paiva also testified that a tree and the rear-neighbor's stairs obstruct the view to and from the proposed parking space, thereby making it difficult to see when pulling out of the parking space. Moreover, Mr. Paiva obtained signatures of nearby residents who oppose the variances.
According to the record, a Philadelphia Planning Commission (Commission) representative testified that the Commission recommended denying the variances because the curb cut would detract from much-needed on-street parking, and the proposed fence would be excessively high. After the Board's hearing, the Fairmount Civic Association notified the Board of its opposition to the variances, however, resident David C. Thomsen wrote the Board that he supports the application. By notice issued March 9, 2010, the Board denied the Zoning Permit. On March 16, 2010, the Donovans requested the Board to reconsider, arguing that the standard for proving unnecessary hardship is less strict for dimensional variances, and asking the Board to apply the de minimis doctrine. On March 30, 2010, the Board denied the Donovans' request for reconsideration.
On April 13, 2010, the Donovans filed an appeal to the trial court, and Mr. Paiva intervened. The Board issued Findings of Fact and Conclusions of Law in support of its decision, concluding that the Donovans failed to establish an unnecessary hardship, and that granting the requested variance for an undersized parking space would likely endanger the public safety by creating hazards on the sidewalk and in the Paiva's back yard. The Board declined to apply the de minimis doctrine.
On May 17, 2010, after argument and submission of briefs, the trial court issued an order reversing the Zoning Board's decision, thereby granting the Donovans' variance requests. The trial court held that since rear parking is a permitted use under the Zoning Code, the proposed dimensional deviations from the zoning requirements are minimal (13 inches short, or a deviation of only 6.0185%), thus rigid compliance is not necessary to protect the public, and the Board abused its discretion in denying what the trial court deemed a de minimis variance. On June 13, 2011, Mr. Paiva appealed to this Court.
In matters such as this, where the trial court took no additional evidence in reviewing the decision of a zoning hearing board, this Court reviews the zoning hearing board's decision for errors of law or an abuse of discretion. Hamilton Hills Grp., LLC v. Hamilton Twp. Zoning Hearing Bd., 4 A.3d 788 (Pa. Cmwlth. 2010).
On November 28, 2011, the Zoning Board filed a notice of nonparticipation. By Order of this Court issued December 22, 2011, the Donovans were directed to file a brief within 30 days. Due to their failure to timely file a brief, this Court precluded the Donovans from doing so by Order issued February 6, 2012.
Mr. Paiva first argues that the Board properly denied the Donovans' variance requests. We agree. "The party seeking the variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest." Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 640 (1983). "The reasons for granting a variance must be substantial, serious and compelling." Id., 501 Pa. at 555, 462 A.2d at 640.
"When an applicant seeks a variance for a property located in Philadelphia, the Board must also consider the factors set forth in [Section 14-1802(1) of the Zoning Code]." Bawa Muhaiyaddeen Fellowship v. Phila. Zoning Bd. of Adjustment, 19 A.3d 36, 39 (Pa. Cmwlth. 2011). Section 14-1801(1)(c) of the Zoning Code authorizes the Board to grant variances from the Zoning Code "as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of [the Code] would result in unnecessary hardship . . . ." Section 14-1802(1) of the Zoning Code specifies what the Board must consider when deciding whether to grant a variance.
Section 14-1802(1) of the Zoning Code mandates the Board to consider the following criteria when deciding whether to grant a variance:
(a) that because of the particular physical surrounding, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of this Title would result in unnecessary hardship;
(b) that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought;
(c) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property;
(d) that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant;
. . .
(f) that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety;
. . .
(j) that the grant of the variance will not adversely affect the public health, safety or general welfare;
(k) that the grant of the variance will be in harmony with the spirit and purpose of this Title; and
. . . .
Here, the Donovans wish to have an off-street parking space at the rear of their property measuring 10 feet by 16 feet and 11 inches, and a fence 10 feet high to protect the car parked there. Off-street parking spaces are permitted under the Zoning Code, however, Section 14-1402(4)(a) of the Zoning Code requires that "the minimum dimensions of each individual parking space shall not be less than eight and one-half (8 1/2) feet by eighteen (18) feet . . . ." Fences are also permitted, however, Section 14-231(4)(a)(.2) of the Zoning Code prohibits rear yard fences from exceeding 6 feet in height. Because the Donovans' proposed parking space and fence would exceed the permitted dimensions, dimensional variances are necessary.
The Board's Conclusions of Law refer to Section 14-1403(3)(a) of the Zoning Code, which applies to parking in commercial districts. Section 14-1402 of the Zoning Code applies to parking in residential districts. --------
In Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998), the Pennsylvania Supreme Court declared:
When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.Id., 554 Pa. at 257, 721 A.2d at 47. Therefore, "the quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought." Id., 554 Pa. at 258-59, 721 A.2d at 48. However, this Court has since "consistently held that an applicant is not entitled to a dimensional variance under the relaxed standard set forth in Hertzberg where no hardship is shown or where the hardship alleged amounts to an applicant's mere desire to increase profitability." Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011). Moreover, Hertzberg "did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses." Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001). Accordingly, "[a] variance . . . is appropriate 'only where the property, not the person, is subject to hardship.'" Id. (quoting Szmigiel v. Kranker, 298 A.2d 629 (Pa. Cmwlth. 1972)). Finally, this Court has held that a dimensional variance is not appropriate unless it would result in only a mere technical and superficial deviation from the ordinance's requirements. One Meridian Partners, LLP v. Zoning Bd. of Adjustment of City of Phila., 867 A.2d 706 (Pa. Cmwlth. 2005).
In this case, the Board denied the variances because it found "no evidence that would support a finding that literal enforcement of the Zoning Code's minimum size for a parking space and its maximum height for a fence results in unnecessary hardship." R.R. at 19a. The Donovans had the opportunity to prove that a denial of the variances would create unnecessary hardship. Relative to the parking space, the only evidence they presented in support of their application for the parking variance was that Ms. Donovan and Mr. Riggs needed to have a place to park their vehicle when they travel. The Donovans wish to install a 10-foot fence so that it would be in scale with an existing fence between the Donovan and Paiva properties. There was no evidence that the Board's denial of the variances would result in hardship to the Property. Accordingly, we agree that the Donovans failed to establish unnecessary hardship. The Board, therefore, properly denied the Donovans' variance requests.
Mr. Paiva next argues that the trial court erred as a matter of law and improperly substituted its judgment for the Board when it concluded that the Board was required to grant the variances as de minimis deviations from the Zoning Code. We agree. The Pennsylvania Supreme Court has stated that in the absence of a showing of the unnecessary hardship traditionally required to support a dimensional variance, the de minimis zoning doctrine authorizes a variance "where the deviation is relatively minor and strict compliance is not necessary to protect the public interest." Nettleton v. Zoning Bd. of Adjustment of City of Pittsburgh, 574 Pa. 45, 53 n.6, 828 A.2d 1033, 1038 n.6 (2003). Thus, we recognize that "[t]he de minimis doctrine is a narrow exception to the heavy burden of proof generally placed on a party seeking a variance . . . ." Leonard v. Zoning Hearing Bd. of City of Bethlehem, 583 A.2d 11, 12 (Pa. Cmwlth. 1990).
Here, the trial court held that the Board should have granted the Donovans' de minimis variances because: "the proposed parking space is only 13 inches short, and deviates from the Zoning Code by only 6.0185%[;]" the Board's concerns about the Donovans' yard and the safety of the children would exist even if the parking space complied with the Zoning Code's dimensional requirements; and the Board provided no reason for denying the fence variance. Donovan v. Zoning Bd. of Adjustment and City of Phila. (No. 1781 April Term 2010, filed May 17, 2011), slip op. at 6. We conclude that the trial court erred.
This Court has held that "[t]here are no set criteria for determining what constitutes a de minimis variance; this determination depends upon the circumstances of each case." Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 13 A.3d 576, 582 (Pa. Cmwlth. 2011). "[A]s the party charged with administering a zoning ordinance, a zoning hearing board possesses unique knowledge and expertise; therefore, a zoning hearing board's interpretation of its own ordinance is afforded great weight and deference." Morrell v. Zoning Hearing Bd. of Borough of Shrewsbury, 17 A.3d 972, 977 (Pa. Cmwlth. 2011). This Court has specifically held that "[t]he grant of a de minimis variance is a matter of discretion with the local zoning board." Lench, 13 A.3d at 581-82. Moreover, "[a]lthough a board should consider the size of the proposed deviation in determining whether a variance is de minimis . . . it is equally important for a board to consider whether rigid compliance is necessary to preserve the public interests sought to be protected by the ordinance." Twp. of Middletown v. Zoning Hearing Bd. of Middletown Twp., 682 A.2d 900, 902 (Pa. Cmwlth. 1996) (emphasis added).
In this case, the Board cited Leonard, wherein this Court held that a deviation of 6.25% from a lot size specified by the ordinance was not de minimis. The Board also made the following findings which make it evident that the Board considered the public interest and the spirit of the Zoning Code in reaching its decision:
61. The Board finds that a grant of the requested variance would be likely to injure permanently the appropriate use of M[r]. Paiva's adjacent conforming property by allowing a vehicle to drive across the 12'-wide sidewalk in and out of a parking space which is smaller than the required dimensions and immediately adjacent to his back yard.
62. The Board finds that granting a variance for creation of an off-street parking space which is shorter than required by the Zoning Code would be likely to injure permanently the appropriate use of Mr. Paiva's adjacent conforming property by creating unacceptable risks that the vehicle would damage his fence and drive into his back yard.
63. The Board finds that granting the requested variance would be likely to endanger the public safety and substantially or permanently injure the appropriate use of the adjacent conforming property, especially by creating a hazard to children using the sidewalk and a risk of a car driving into Mr. Paiva's yard.
64. The Board finds that allowing a curb cut and driveway access to a parking space which would be shoehorned into
the middle of a block with no other driveways would adversely affect the public health, safety and general welfare by creating a hazardous condition on the sidewalk, along with automobile fumes in the narrowly[-]confined parking area, and it would not be in harmony with the spirit and purpose of the Zoning Code.R.R. at 20a. Once the Board denied the Donovans' parking space variance, it was unnecessary for the Board to address the fence variance, which was only needed if the parking space was approved.
"The role of the zoning hearing board is that of fact-finder. A reviewing court may not substitute its judgment for that of the zoning hearing board; rather, the court is bound by the zoning hearing board's determinations of witness credibility and evidentiary weight." In re Rural Route Neighbors, 960 A.2d 856, 860 (Pa. Cmwlth. 2008) (citation omitted). There is substantial evidence to support the Board's determinations that the Donovans' requested deviations are not relatively minor under the circumstances, and strict compliance is necessary to protect the public interest. Given the facts of this record and the deference to which the Board is entitled, we hold that the trial court erred as a matter of law and improperly substituted its judgment for the Board's when it concluded that the Board was required to grant the variances as de minimis deviations from the Zoning Code.
For the foregoing reasons, the trial court's order is reversed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 21st day of March, 2012, the May 17, 2011 order of the Court of Common Pleas of Philadelphia County is reversed.
/s/_________
ANNE E. COVEY, Judge