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PENNSYLVANIA PARKING v. ZONING BOARD ADJUSTMENT (08/07/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 7, 1986.

PENNSYLVANIA PARKING, INC., APPELLANT
v.
ZONING BOARD OF ADJUSTMENT, CITY OF PHILADELPHIA, APPELLEE. PENNSYLVANIA PARKING, INC. V. ZONING BOARD OF ADJUSTMENT, CITY OF PHILADELPHIA ET AL. QUEEN VILLAGE NEIGHBORS ASSOCIATION, INC., APPELLANT. QUEEN VILLAGE NEIGHBORS ASSOCIATION, INC. ET AL. V. ZONING BOARD OF ADJUSTMENT, CITY OF PHILADELPHIA AND PENNSYLVANIA PARKING, INC. PENNSYLVANIA PARKING, INC., APPELLANT. QUEEN VILLAGE NEIGHBORS ASSOCIATION, INC., APPELLANT V. ZONING BOARD OF ADJUSTMENT, CITY OF PHILADELPHIA, APPELLEE

Appeals from the Order of the Court of Common Pleas of Philadelphia County, in case of Queen Village Neighbors Association, Inc. v. Zoning Board of Adjustment, No. 5577 January Term, 1984; Pennsylvania Parking Authority v. Zoning Board of Adjustment, No. 6152 January Term, 1984, and David & Roberta Gutman et al. v. Zoning Board of Adjustment, No. 6394 January Term, 1984.

COUNSEL

Donald W. Kramer, with him, Frances A. McElhill, Montgomery, McCracken, Walker & Rhoads, for appellant/appellee, Pennsylvania Parking, Inc.

Kathleen M. Lynch, with her, J. Philip Kirchner, Drinker, Biddle & Reath, for appellant/appellee, Queen Village Neighbors Association, Inc. et al.

Joy J. Bernstein, Assistant City Solicitor, for appellant/appellee, Zoning Board of Adjustment of the City of Philadelphia.

President Judge Crumlish, Jr., Judge Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Crumlish, Jr. Judge Colins did not participate in the decision in this case.

Author: Crumlish

[ 99 Pa. Commw. Page 514]

Pennsylvania Parking, Inc. (PPI) and the Queen Village Neighbors Association (Association) separately appeal a Philadelphia County Common Pleas Court order affirming a Philadelphia Zoning Board of Adjustment (Board) decision which granted a one-year variance to PPI for the operation of a parking lot. PPI appeals the limitation of the variance to a one-year period; the Association, joined by individual neighbors,*fn1 appeals the grant of the variance.*fn2 We reverse as to the grant of a variance.

The subject property is situated at 706-712 South Third Street in the Queen Village section of the City of Philadelphia (City). It is zoned R-10 Residential and located within the Southwark National Historic District. When PPI first sought permission to operate a parking lot, the property contained a row of three vacant one-story garages which had been most recently used as warehouses.

PPI applied to the City's Department of Licenses and Inspection for two use permits to (1) demolish the existing buildings and establish a public parking lot

[ 99 Pa. Commw. Page 515]

    with an attendant's booth and (2) erect a free-standing, illuminated sign. This application was denied because public parking lots are prohibited in an R-10 district*fn3 and free-standing signs are prohibited in the Southwark National Historic District.*fn4 PPI then applied to the Board for a variance authorizing these uses. A public hearing was held, at which testimony was heard from the owner of the land, PPI's president, neighbors supporting and opposing the variance request, and a representative of the City Planning Commission. The Board granted a variance by a vote of three to one. Despite the pendency of appeals from the Board's decision, PPI proceeded to demolish the garages and construct a public parking lot.

Because the common pleas court took no additional evidence, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. Heilman v. Zoning Board of Adjustment of Philadelphia County, 69 Pa. Commonwealth Ct. 157, 450 A.2d 318 (1982).

In its appeal, the Association contends that the Board erred as a matter of law in granting a variance because PPI's evidence failed to demonstrate an unnecessary hardship from the existing residential zoning. We agree.

Section 14-1802 of the Philadelphia Code lists twelve criteria which the Board shall consider in granting a variance.*fn5 Essentially, an applicant must prove

[ 99 Pa. Commw. Page 516]

    that (1) there is an unnecessary hardship unique to his property and (2) a variance would not be contrary to the public health, safety, or general welfare. Bamash v. Zoning Board of Adjustment, 11 Pa. Commonwealth Ct. 420, 313 A.2d 370 (1974). To establish an unnecessary hardship, it must be shown that (1) the physical characteristics of the property prevent or render prohibitively expensive the uses permitted under the zoning ordinance or (2) the characteristics of the surrounding area are such that the property has either no value or a distress value if used for one of the permitted purposes.

[ 99 Pa. Commw. Page 517]

    from a myriad of factors related to an overall surplus of housing, for instance, poor marketing techniques or undesirability of development or the specific location. No record evidence cures these ambiguities. At best, PPI has shown difficulty in selling the property for residential development. This is not a sufficient ground for granting a variance. Appeal of Walter C. Czop, Inc., 43 Pa. Commonwealth Ct. 499, 403 A.2d 1006 (1979).*fn6

An unnecessary hardship may also be found where a residentially zoned property is surrounded by numerous incompatible commercial uses, rendering it of little value for residential purposes. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). PPI's evidence failed to demonstrate an unnecessary hardship of this nature. The owner testified that there was commercial use in the 700 block of South Third Street. However, unlike Valley View, nothing in the record details the number of commercial uses on this block, their nature, or their proximity to the subject property. Thus, PPI did not meet the Valley View standard.*fn7

Finally, PPI's evidence regarding a shortage of parking spaces in the Society Hill-Queen Village area is not

[ 99 Pa. Commw. Page 519]

    pertinent to the question of whether its property is burdened by an unnecessary hardship justifying a variance. The test for determining the appropriateness of a variance is not whether the use of property sought by the owner is more desirable or even the best use but, rather, whether the property may be used in a reasonable manner within the applicable zoning provisions. Alfano v. Zoning Hearing Board of Marple Township, 14 Pa. Commonwealth Ct. 334, 324 A.2d 851 (1974). Because PPI has not demonstrated that the R-10 zoning of the property precludes a reasonable use, an asserted need for off-street parking in the area is nothing more than a policy issue that should be addressed to City Council's zoning amendment power. See Somerton Civic Association v. Zoning Board of Adjustment, 80 Pa. Commonwealth Ct. 173, 471 A.2d 578 (1984).

We hold that the Board erred in issuing a variance because PPI did not produce evidence demonstrating that the R-10 zoning of the property creates an unnecessary hardship justifying a variance.*fn8 Accordingly, we reverse the common pleas court order upholding the Board's decision.

Order

The Philadelphia County Common Pleas Court order, No. 5577 January 1984 dated September 11, 1984, is reversed as to the appeal at No. 138 Misc. Dkt. No. 4 and No. 3333 C.D. 1984. The appeal docketed at No. 3171 C.D. 1984 and No. 3331 C.D. 1984 is dismissed as moot.

Judge Colins did not participate in the decision in this case.

Disposition

Decision regarding Appeals, Nos. 138 Misc. Dkt. No. 4 and 3333 C.D. 1984 is reversed. Appeals, Nos. 3171 C.D. 1984 and 3331 C.D. 1984 dismissed as moot.


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