Opinion
No. 82 C.D. 2012
02-11-2013
South Broad Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment and James Colosimo Appeal of: James Colosimo
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
James Colosimo (Appellant) appeals from the December 28, 2011 order of the Philadelphia Court of Common Pleas (trial court) which vacated an order of the Philadelphia Zoning Board of Adjustment (Board) granting Appellant a variance to legalize a completed addition he built onto a three-family dwelling located at 1523 South Broad Street (Property).
Appellant's Property is a 2214-square-foot lot improved with a three-story attached building in an R-10A Residential Zoning District. The Philadelphia Code (Code) and applicable regulations do not permit three-family dwellings in an R- 10A district. However, the building on the Property has been used as a multi-family dwelling since at least 1954. Prior zoning approvals for the Property's use include:
Section 14-205 of the Philadelphia Code provides that R-10A districts allow for single family dwellings and places of worship which are detached, semi-detached, or attached. On August 22, 2012, Philadelphia revised Title 14 of the Philadelphia Code, The Zoning and Planning Code, and the R-10A Residential Zoning District is now called the RSA-5 Residential Zoning District.
1. A variance granted by the Board on December 29, 1954 for a three-family dwelling;(Board's Findings of Fact (F.F.) No. 6.)
2. A variance granted by the Board on April 16, 1964 for a four-family dwelling;
3. A certification issued by the Department on September 22, 1967 providing that no permit was required for interior renovations to an existing three-family dwelling.
After he constructed the expansion to the Property, Appellant originally requested that the Property be used as a four-family dwelling, but Appellant abandoned that request during negotiations with the Association.
Numerous multi-family dwellings are located in the area, including dwellings adjacent to the Property and on the same block. When Appellant acquired the Property in 2001, it was used as a three-family dwelling with a variance permitting such use. Appellant testified that he relied on this variance when he purchased the Property.
Sometime in 2008, Appellant began constructing a two-story addition at the rear of the existing dwelling and a deck over an existing detached garage at the rear of the Property. The work was completed without the required building permits. (F.F. No. 9.) The Philadelphia Department of Licenses and Inspections (Department) issued a stop-work order on April 1, 2008, based on Appellant's failure to obtain permits for the additions, but it was dismissed for lack of service. (F.F. No. 10a.) After the order was dismissed, Appellant continued construction.
On July 11, 2008, Appellant filed an "Application for a Zoning/Use Registration Permit" (Application) with the Department, essentially requesting a permit for the completed two-story addition to the building on the Property and proposing use of the building as a four-family dwelling. The application was denied because the proposed use was not permitted in the district and because applicable rear yard depth and open area requirements were not met. (F.F. No. 11.) Appellant appealed the Department's denial to the Board, which also denied the requested use and dimensional variances. (F.F. No. 12.)
On April 28, 2009, the South Broad Street Neighborhood Association (Association) wrote a letter to the Board stating that it had no objection to Appellant's proposed use of the Property provided that: the number of residential units was limited to three, with one per floor; the deck over the garage was trimmed back; lighting with motion detection was installed over the garage door; and a door to the Property adjacent to the garage was constructed to swing outward and be used as an exit. (F.F. No. 18.)
The Department issued Appellant a second stop-work order on June 9, 2009, because the addition was being constructed without required zoning and building permits. (F.F. No. 10b.) Appellant then stopped construction. Later in 2009, the Association withdrew its endorsement of Appellant's proposal after discovering that he had continued construction after the first, invalid, stop-work order was issued, and mistakenly believing that he had continued construction after the second stop-work order was issued. (F.F. No. 19.)
Appellant testified that he stopped construction after receiving the second stop-work order, which was validly issued. (Reproduced Record (R.R.) at 38.) A city inspector also found that construction stopped after the second order. (R.R. at 83-84.) The Association and neighbors testified that they believed Appellant continued construction after receiving the second stop-work order. (R.R. at 44-47.) However, Appellant's contractor testified that Appellant evicted all tenants from the Property pending the resolution of this dispute, and an evicted tenant did construction to the building late at night in order to have his security deposit refunded, which was the construction noise that the neighbors heard after Appellant ceased construction. (R.R. at 47.)
Appellant filed a second Application with the Department on January 22, 2010, which proposed three residential units instead of four, partial demolition of the existing detached garage, and addition of garage doors at the rear property line. (F.F. Nos. 13-15.) The proposed changes met or exceeded the Association's provisos. Furthermore, the proposals and changes would render the building in compliance with dimensional requirements of the zoning district. The Department refused the application on February 5, 2010, on the single ground that the proposed use, a three-family dwelling, was not permitted in the Property's R-10A Residential Zoning District.
Appellant appealed the Department's refusal to the Board, which held a public hearing on September 21, 2010. In support of his request, Appellant presented testimony and evidence establishing the facts summarized above. In opposition, the adjacent property owners testified that they objected to the size, not the use, of the addition because it blocked light to their property, and because Appellant's garage deck, which he proposed to demolish and did later demolish, encroached onto their property. (F.F. No. 23.)
The Board granted Appellant's requested use variance on January 18, 2011. In doing so, the Board reasoned that the Property is adjacent to a three-family dwelling and is located in an area in which multi-family dwellings are common. The Board further noted that the building on the Property is designed for multi-family use and has been approved for such use for more than fifty years, and concluded that these circumstances are sufficient to establish the hardship required to support a variance. (Board's Conclusions of Law (C.L.) No. 11.) The Board concluded that Appellant did not inflict the hardship upon himself because the Property's use as a multi-family dwelling is longstanding and predates his acquisition of the Property. The Board also stated that the Property's use as a whole must be considered, not merely the addition to the Property. (C.L. No. 12.) Furthermore, the Board determined that the variance would not have a negative impact on the public health, safety, or welfare of the community.
The Board's grant was subject to the following conditions: Appellant must obtain a permit from the Department within one year; all construction must be in accordance with plans approved by the Board; and a new application and public hearing would be required if Appellant failed to comply with the first two conditions. (R.R. at 17.)
The Board also noted that Appellant completed his proposals to bring the building into compliance with dimensional regulations and that his addition to the building on the Property satisfies the dimensional requirements of the Code. The Board found that the parties opposing Appellant's request did so based on the structure's increased size and Appellant's failure to obtain permits, not on the use itself. Reasoning that the building's size and dimensions comply with applicable Code requirements and the Property will be used as a three-family dwelling with expanded units, the Board granted the use variance. The Board noted that the use variance was the only issue before it and that Appellant must still obtain a building permit.
The Association appealed the Board's decision to the trial court, and Appellant intervened in the matter. The trial court vacated the Board's order in a December 28, 2011 decision, holding that the Board abused its discretion and clearly erred in its analysis of the law. The trial court mischaracterized the issue before it as a request for a dimensional variance, rather than a use variance, and conducted its analysis of the case under that misconception, ultimately concluding that Appellant did not establish that the relevant Code provisions imposed an unnecessary hardship on the Property.
The trial court incorrectly stated, "[t]he variance requested is dimensional." The trial court also stated that the Board found that the Property was unique because it was extremely narrow, but this is nowhere in the Board's findings. (R.R. at 14.)
On January 5, 2012, Appellant appealed to this Court, arguing that the trial court did not grant the Board proper deference.
The Court's scope of review is limited to determining whether the zoning board committed an abuse of discretion or an error of law. Board of Supervisors of Upper Southampton Township v. Zoning Hearing Board of Upper Southampton Township, 555 A.2d 256 (Pa. Cmwlth. 1989).
"It is well settled that a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court. This principle is also codified in section 1921(c)(8) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(8). The basis for the judicial deference is the knowledge and expertise that a zoning hearing board possesses to interpret the ordinance that it is charged with administering." Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57-58 (Pa. Cmwlth. 1999). Questions of credibility and evidentiary weight are within the sole province of the Board. Lancaster Township v. Zoning Hearing Board of Lancaster Township, 6 A.3d 1032 (Pa. Cmwlth. 2010).
An abuse of discretion occurs when material findings are not supported by substantial evidence. Valley View Civil Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Substantial evidence is defined as relevant evidence that a reasonable mind would accept as adequate to support the conclusion reached. Id. A reviewing court does not alter the Board's conclusion unless it is not supported by substantial evidence. If there are no facts to support the variance, then an error of law has been made, and the court may reverse the decision. The failure of a zoning board to consider each requirement of a zoning ordinance prior to granting a variance is an error of law. Larsen v. Zoning Board of Adjustment of City of Pittsburgh, 543 Pa. 415, 672 A.2d 286 (1996).
Section 14-1801(1)(c) of the Code provides that the Board may, after public notice and public hearing, authorize variances from the terms of the Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the Code provisions would result in unnecessary hardship. In deciding whether to grant a use variance, the Board considers:
The burden of proving the need for a variance is on the landowner. Yeager v. Zoning Hearing Board, 779 A.2d 595 (Pa. Cmwlth. 2001).
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 the Code 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; [and]
d) That the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant.Code at §14-1801(a)-(d).
In East Torresdale Civic Association v. Zoning Board of Adjustment, 536 Pa. 322, 639 A.2d 446 (1994), our Supreme Court distilled the relevant Code provisions into three requirements: the ordinance must pose a hardship to the property; the proposed development must not pose a detriment to the public health, safety, and welfare; and the relief requested must be the minimum necessary to afford relief, resulting in the least modification possible of the regulation at issue. When deciding whether to grant a variance, all evidentiary factors must be taken into consideration, including "relationship to adjacent structures, as well as the surrounding neighborhood." West Central Germantown Neighbors v. Zoning Board of Adjustment of Philadelphia, 827 A.2d 1283, 1288 (Pa. Cmwlth. 2003).
Hardship is proven by showing that: the physical features of the property are such that it cannot be used for the permitted purpose; or the property can be conformed for a permitted use only at a prohibitive expense; or the property has no value for any purpose permitted by the zoning ordinance. Hertzberg. v. Zoning Board of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). A variance cannot be granted where the hardship is due to the fault of the applicant. Doris Terry Revocable Trust v. Zoning Board of Adjustment, 873 A.2d 57 (Pa. Cmwlth. 2005).
The Association argues that Appellant presented no testimony or evidence to establish an unnecessary hardship on the Property, and thus failed to meet his burden of proof in requesting a use variance. (Appellee's brief at 6.)
The Association also argues that Appellant created the hardship, and, thus, the variance must be denied. The trial court agreed, holding that the Board committed an error of law in concluding that Appellant did not create the hardship. We disagree and note that Appellant did not create a hardship by constructing an addition to the Property within the dimensional regulations. The Association argues that the three-family use was previously legal only at the size and dimensions existing before Appellant constructed the addition and that Appellant should have produced testimony and evidence demonstrating why the expansion was necessary or why there would have been a hardship without it. This argument is unpersuasive; the size and dimension of the dwelling are not at issue in this case, only the use is. Indeed, if the building at its current size with the addition were used as a single-family dwelling, the Association would have no basis to object.
We agree. Appellant presented no evidence that the Property could not be used for the permitted purpose, that it could be conformed for a permitted use only at a prohibitive expense, or that the property was valueless without the variance. Accordingly, Appellant's testimony was insufficient to prove an unnecessary hardship.
The trial court mistakenly analyzed whether the Board committed an abuse of discretion or an error of law based upon the incorrect premise that the variance requested is dimensional and that Appellant appealed the Department's order to obtain a variance for the rear yard depth and open space requirements. The variance requested was a use variance for a three-family dwelling in a residential district that does not permit such usage. Nevertheless, the trial court correctly concluded that Appellant did not present the requisite evidence to establish that the Code inflicted an unnecessary hardship on the Property, and, therefore, properly denied the requested use variance.
The trial court also held that the Board abused its discretion in finding that the parties who objected to the variance only did so because Appellant had completed the addition before he applied for the necessary permits. We disagree.
The Board's conclusions were based on testimony given at two hearings and documents submitted by both Appellant and the Association. A witness for the Association testified that the Association rescinded its earlier approval of Appellant's proposal "due to the anger in the neighborhood and just the flagrant disregard for city codes . . . that it was our feeling to . . . ask that the Board deny the operation." (R.R. at 47.) Appellant also tried to work with the Association for months, if not years, to reach an amicable agreement regarding the addition to Property. Such an agreement was reached, but the Association withdrew support when it believed Appellant had continued construction after the valid stopwork order. Appellant complied with dimensional requirements and the Association's provisos, and vacated his tenants from the premises pending the disposition of this case. Furthermore, there was ample testimony that the Association and neighbors objected to the size of the addition to the building on the Property, not the use of the property as a threefamily dwelling. Because the size is not at issue in this case, the Board was well within its discretion in holding that the parties' objections were not founded on the use of the Property as a threefamily dwelling.
Accordingly, based upon our limited scope of review, we affirm.
We note that it is not clear from the record whether Appellant needed a use variance permitting a three-family dwelling on the Property where one already had been granted. It is well-established law that variances run with the land. See Scalise v. Zoning Hearing Board of Borough of West Mifflin, 756 A.2d 163, 167 (Pa. Cmwlth. 2000) (stating that the right to use a property in conformance with variances runs with the land); see also Aquaro v. Zoning Hearing Board of Adjustment of City of Philadelphia, 673 A.2d 1055, 1060 (Pa. Cmwlth. 1996) ("variances run with the land"). The record indicates that Appellant was not attempting to expand the use, but only continue a use of the Property that was lawful prior to the addition. In any event, our decision affirming the trial court is limited to a determination that Appellant did not prove sufficient hardship to support a use variance. We express no opinion as to whether the variance at issue here is needed in order for Appellant to go forward with his proposed project. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of February, 2013, the December 28, 2011 order of the Philadelphia Court of Common Pleas is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge