48 Pa. D. & C.5th 36
Pennsylvania Court of Common P...2015Background
- Property at 412-424 Moyer Street (vacant former salvage yard in ICMX zoning) — owner sought a zoning/use registration permit to build about 11–14 residential units with on-site parking; L&I issued a refusal because residential use is not permitted in ICMX and plans failed certain dimensional/accessibility requirements.
- Intervenor (Moyer Street Associates) appealed to the Zoning Board of Adjustment (ZBA). ZBA previously granted related variances in 2008; intervenor revised plans (reduced units, increased rear yard and aisle widths) and obtained ZBA approval conditioned on the revised stamped plans.
- Neighbors objected mainly on density, privacy, safety, and view grounds; intervenor produced testimony about site blight, costly environmental remediation (> $100,000), failed industrial-marketability, and a broker’s opinion that industrial reuse was infeasible.
- Appellant (neighbor) filed a statutory appeal to the trial court, challenged the ZBA findings and asked for an evidentiary hearing to supplement the record; trial court denied the evidentiary hearing, upheld the ZBA rulings, and dismissed the appeal.
- Trial court reviewed whether the ZBA abused its discretion or committed an error of law, found the record contained substantial evidence to support (1) a use variance (residential permitted by variance based on unique site conditions and marketability), (2) a rear-yard dimensional variance, and (3) an aisle-width variance as de minimis. Appellant appealed to the Commonwealth Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by denying an evidentiary hearing | Scott: record was incomplete and contained contradictions (missing permits, ownership proof, contamination evidence), so a de novo hearing was required | Intervenor/ZBA: certified record (transcript, plans, findings) was adequate; issues Scott raised were not presented to ZBA and are waived | Court: denied hearing properly; record was sufficient and most contested items were waived for not being raised before ZBA |
| Whether ZBA erred in granting a use variance (unnecessary hardship) | Scott: no unnecessary hardship; property could be used for permitted ICMX uses; hardship is self-imposed or insufficient | Intervenor/ZBA: unique physical/site constraints, failed industrial marketability, remediation/demolition costs make residential use necessary for viable development | Court: ZBA did not abuse discretion; substantial evidence supported a use variance (marketability, remediation costs, neighborhood residential character) |
| Whether rear-yard dimensional variance was justified | Scott: literal enforcement of rear-yard requirement would not be unwarranted hardship; plans miscalculate yard depth | Intervenor/ZBA: strict enforcement would unduly constrain feasible development; revised plan increased rear yards to 12 ft and was minimum viable | Court: affirmed dimensional variance — ZBA reasonably found strict compliance would unreasonably constrain development |
| Whether drive-aisle width variance was improper given safety concerns | Scott: two-foot shortfall could impede emergency access and affect safety | Intervenor/ZBA: revised aisle is 22 ft (8.33% variance), approved by Streets Department; no record evidence fire access is impossible | Court: treated variance as de minimis (under 10%); ZBA properly exercised discretion and did not err |
Key Cases Cited
- Township of Exeter v. Zoning Hearing Board, 962 A.2d 653 (Pa. 2009) (standard of review: appellate court reviews ZBA for abuse of discretion/substantial evidence)
- Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 462 A.2d 637 (Pa. 1983) (use-variance unnecessary-hardship standard and burden on applicant)
- South of South St. Neighborhood Ass'n v. Philadelphia Zoning Bd. of Adjustment, 54 A.3d 115 (Pa. Cmwlth. 2012) (consideration of changed neighborhood conditions and hardship tests)
- Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 13 A.3d 576 (Pa. Cmwlth. 2011) (de minimis dimensional variance concept and lighter burden)
- Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 801 A.2d 492 (Pa. 2002) (contextual treatment of de minimis variances and board discretion)
- Wilson v. Plumstead Tp. Zoning Hearing Bd., 936 A.2d 1061 (Pa. 2007) (when pre-purchase knowledge constitutes a self-imposed hardship)
- Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014) (zoning board as factfinder — credibility determinations entitled to deference)