29 A.3d 144
Pa. Commw. Ct.2011Background
- Objectors sought review of a Board decision granting variances and certificates to Walnut Associates Realty for a 1213-1219 Walnut Street project in Philadelphia.
- Property lies in the C-5 Center City district and was assembled from four lots into one site wrapping around Fergie’s Pub, mid-block between Sansom and Walnut.
- Applicant proposed a 30-story mixed-use building with 152 hotel rooms, 299 apartments, multiple restaurants, retail space, and a drive-through/throughway to access guests and residents; loading docks off Sansom Street were planned.
- May 29, 2009 Department refusal/referral cited parking shortfall, excessive Floor Area Ratio (FAR), insufficient open area, inadequate setbacks, width constraints, height concerns, and unauthorised take-out restaurant; referral put to Board.
- July 1 and September 22, 2009 Board hearings led to an amended proposal removing upper floors to reduce variances; September 29, 2009 Board granted dimensional variances and a use variance for take-out, which the trial court affirmed on August 5, 2010; this Court reversed.
- Objectors challenged the Board’s error in proving unnecessary hardship, arguing the property is not unique and that the project can be developed as of right or rezoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred in granting dimensional variances without showing unnecessary hardship. | Singers argue no unique hardship; site shape alone is insufficient. | Board found unique physical surroundings and a legitimate minimal variance. | Yes; variances failed hardship standard; Board abused discretion. |
| Whether the use variance for a take-out restaurant was supported by hardship. | Property currently parking and could be used without take-out; hardship not shown. | Take-out restaurant aids project viability and may be allowed under Ordinance with variances. | Yes; use variance not supported by hardship; reversed. |
| Whether the Board properly treated the property’s uniqueness and proposed variances as minimal or require rezoning. | Variances amount to more than a superficial deviation; rezoning is appropriate. | Variance relief should be permitted to realize development. | Board erred; rezoning was the appropriate remedy. |
| Whether failure to provide on-site parking was justified by off-site commitments. | Objectors contend off-site parking commitments are insufficient to satisfy requirements. | Off-site parking commitments satisfy the Ordinance considerations. | Not dispositive; overall hardship analysis failed. |
| Whether the Board erred in granting certificates for two eat-in restaurants beyond permitted uses. | Other restaurant uses were impermissible; hardship not shown for additional eat-in restaurants. | Zoning permits two eat-in restaurants with variances; hardship established for balancing. | Not necessary to resolve due to other variance findings; court reversed on hardship grounds. |
Key Cases Cited
- Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550 (Pa. 1983) (unnecessary hardship and public-interest balance for variances; heavy burden on applicant)
- Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249 (Pa. 1998) (relaxed standard for dimensional variances but still requires hardship)
- Yeager v. Zoning Hearing Board of City of Allentown, 779 A.2d 595 (Pa.Cmwlth.2001) (hardship must be more than mere desire to develop property; must show true unique hardship)
- Lamar Advantage GP Company v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 997 A.2d 423 (Pa.Cmwlth.2010) (profit-driven variance without hardship not permitted)
- O’Neill v. Zoning Board of Adjustment of Philadelphia, 434 Pa. 331 (Pa. 1969) (example where two and a half times FAR was not a mere technical deviation; rezoning preferred)
- One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa.Cmwlth.2005) (extremely large variances may warrant rezoning rather than variance)
- Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of City of Philadelphia, 771 A.2d 874 (Pa.Cmwlth.2001) (mere desire to increase profitability is not hardship)