Singer v. PHILA. ZONING BD. OF ADJUSTMENT
29 A.3d 144
| Pa. Commw. Ct. | 2011Background
- Appellants Michael Singer and William R. Piper, Jr. appeal the Board’s September 29, 2009 decision granting variances and certificates to Walnut Associates Realty, L.P. for a 1213-1219 Walnut St. project.
- Property lies in Philadelphia’s C-5 Center City zone with Special Controls; site assembled from four lots, comprising a parking lot and a vacant building, mid-block around Fergie’s Pub.
- Applicant proposed a 30-story mixed-use building with 152 hotel rooms, 299 apartments, restaurants, retail, and a drive-through/throughput passage; two 40-foot loading docks.
- Application initially denied by the Department for parking, open area, setbacks, width, floor-area ratio, height, and take-out restaurant issues; Board referred to determine two eat-in restaurants under §14-1607(7)(b).
- Board hearings on July 1 and September 22, 2009 led to approvals of dimensional variances and a use variance for a take-out restaurant after finding property unique and compliance with variance criteria.
- Trial court affirmed, and the Commonwealth Court reversed, holding the variances and take-out use variance failed to show unnecessary hardship under Hertzberg and related authorities; remanded with instruction to reverse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dimensional variances—unnecessary hardship shown? | Appellants contend property not unique; hardship not proven. | Walnut asserts property is unique and hardship present. | Board erred; no sufficient hardship. |
| Take-out restaurant use variance—hardship shown? | Appellants argue no value for permitted use; take-out not necessary. | Applicant argues take-out required to maximize use. | Board erred; use variance not proven. |
| Remedy for overreach—proper course? | Rezoning appropriate given variances exceed limits. | Not addressed beyond variance review. | Court: rezoning is the appropriate remedy. |
Key Cases Cited
- Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249 (Pa. 1998) (sets high burden for unnecessary hardship; jury-like standard for dimensional variances remains)
- Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001) (hardship must be more than mere economic impact; confirms stringent standard)
- O’Neill v. Zoning Board of Adjustment of Philadelphia, 434 Pa. 331 (Pa. 1969) (not merely profit motive; extreme deviation may require rezoning)
- One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa. Cmwlth. 2005) (large floor-space deviation not a mere technical deviation; rezoning may be remedy)
- Lamar Advantage GP Company v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (relaxed Hertzberg standard not applicable where hardship is absent)
- Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (Pa. 1983) (establishes the basic hardship-and-public-interest framework for variances)