J. Scott v. Zoning Board of Adjustment, Moyer Street Associates, LLC, and K. Baird
J. Scott v. Zoning Board of Adjustment, Moyer Street Associates, LLC, and K. Baird - 358 C.D. 2015
| Pa. Commw. Ct. | Apr 13, 2017Background
- Moyer Street Associates (Intervenors) sought use and dimensional variances to convert a former industrial/salvage-yard parcel at 412–424 Moyer St., Philadelphia (ICMX zone) into a multi-unit residential development; Zoning Department initially refused a permit.
- Moyer presented revised plans (ultimately 11 units) and testimony about demolition, preliminary environmental concerns (contamination remediation costs), and market evidence that industrial reuse was infeasible.
- Neighbors, including appellant John Scott, opposed on grounds of view loss, fire/safety, density, privacy, and claimed missing ownership/record documents.
- The Zoning Board of Adjustment (ZBA) granted the use and dimensional variances, finding: contamination and remediation/demolition costs made residential redevelopment the minimum necessary relief; industrial reuse was infeasible; and the project would not harm public health, safety, or the neighborhood.
- Scott appealed to the trial court, sought an evidentiary hearing to add documents he claimed were newly discovered, and argued the ZBA’s unnecessary-hardship findings lacked substantial evidence, the hardship was self-imposed, and his due process rights were violated. Trial court denied the evidentiary hearing and affirmed the ZBA; the Commonwealth Court affirmed.
Issues
| Issue | Plaintiff's Argument (Scott) | Defendant's Argument (Moyer/Intervenors) | Held |
|---|---|---|---|
| 1. Whether trial court erred in denying motion for evidentiary hearing to add documents claimed newly discovered | Documents (demolition permit, mortgages, agreement of sale, lawsuit) were unavailable at ZBA hearing and would contradict ZBA findings; thus a de novo evidentiary hearing was required | Record was complete; many documents were publicly available before the ZBA hearing; Scott had full opportunity to be heard; denial was proper | Denial affirmed — Scott did not show record was incomplete or that he was deprived of opportunity to be fully heard; some documents were reasonably discoverable pre-hearing |
| 2. Whether ZBA’s finding of "unnecessary hardship" (to justify a use variance) is supported by substantial evidence | ZBA relied on speculative/unverified testimony (e.g., contamination estimates, broker letter hearsay); insufficient market testing and missing evidence undermine finding | ZBA relied on testimony that soil likely required remediation with substantial cost, corroborated marketing testimony and broker letter; substantial evidence supports infeasibility of industrial use and economic necessity | Affirmed — ZBA’s hardship finding supported by substantial evidence viewed in the light most favorable to prevailing party |
| 3. Whether the hardship was self-imposed by Intervenors (bar to variance) | Intervenors created blight/conditions by demolitions and conduct; therefore hardship is self-imposed and variance should be denied | The blight, contamination, lot constraints, and residential context predated Intervenors’ redevelopment effort; gentrification and surrounding residential uses made industrial reuse infeasible | Affirmed — evidence supported ZBA conclusion that hardship was not self-created by Intervenors |
| 4. Whether Scott’s procedural or substantive due process rights were violated by ZBA process or review of revised plans | ZBA considered revised plans without full Department/CDRC/neighbor review; failed to make required findings; did not address certain Department refusals; thus Scott was prejudiced | Hearing was publicly noticed; Scott participated with counsel; alleged procedural defects did not cause demonstrable prejudice; substantive due process claim not pleaded with specificity | Affirmed — no procedural due process violation shown; substantive claim not meaningfully presented for review |
Key Cases Cited
- Poole v. Zoning Bd. of Adjustment of the City of Phila., 10 A.3d 381 (Pa. Cmwlth. 2010) (prior variance litigation involving the same parcel and background on earlier residential variance application)
- Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014) (appellate standard: defer to factfinder; applicant must show unique hardship, and the burden of proof rests on applicant)
- Wilson v. Plumstead Township Zoning Hearing Board, 936 A.2d 1061 (Pa. 2007) (economic hardship alone does not justify a variance)
- Singer v. Philadelphia Zoning Bd. of Adjustment, 29 A.3d 144 (Pa. Cmwlth. 2011) (variance criteria and Philadelphia Zoning Code factors)
- Earl Scheib Realty Corp. v. City of Philadelphia Zoning Board of Adjustment, 301 A.2d 423 (Pa. Cmwlth. 1973) (market-testing and alternative ways to show infeasibility)
- Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh, 672 A.2d 286 (Pa. 1996) (zoning board must consider each ordinance requirement before granting a variance)
- Arter v. Philadelphia Zoning Bd. of Adjustment, 916 A.2d 1222 (Pa. Cmwlth. 2007) (applicant may not create hardship and then seek a variance)
- Berryman v. Wyoming Borough Zoning Hearing Bd., 884 A.2d 386 (Pa. Cmwlth. 2005) (trial court must hear additional evidence only if record is incomplete or party was denied full opportunity to be heard)