Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

North Chestnut Hill Neighbors v. Zoning Board of Adjustment of the City of Philadelphia

July 8, 2009

NORTH CHESTNUT HILL NEIGHBORS, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA AND WOODMERE ART MUSEUM



The opinion of the court was delivered by: Senior Judge Friedman

Argued: June 10, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

North Chestnut Hill Neighbors (Neighbors) appeal from the January 27, 2009, order of the Court of Common Pleas of Philadelphia County (trial court), which affirmed the December 24, 2007, remand decision of the Zoning Board of Adjustment of the City of Philadelphia (ZBA). In its remand decision, the ZBA made supplemental findings of fact and conclusions of law and reaffirmed its prior February 24, 2006, decision granting a variance to the Woodmere Art Museum (Woodmere or Museum) to permit construction of a proposed addition to the Museum. We affirm.

Woodmere is an art museum housed in a five-story Victorian mansion situated on approximately five and one-half acres in the Chestnut Hill area of Philadelphia. The property currently is zoned R-1 Residential, where, pursuant to section 14-205 of the Philadelphia Zoning Code (Zoning Code), only single-family detached residential use is permitted. Because Woodmere was used as an art museum prior to the enactment of the Zoning Code, it existed as a nonconforming use. However, over the years, Woodmere has applied for and received several variances related to its operation as an art museum and, therefore, has lost its status as a nonconforming use pursuant to Zoning Code §14-104(4)(b).*fn1

On February 26, 2004, Woodmere applied for a permit to build a two-story addition with a cellar for use as an art museum on the first and second floor, with art storage and maintenance in the cellar; a one-story addition for use as an accessory mechanical room for erection of an oil tank; reconfiguration of the private parking lot with a new total of eighty-two spaces; and a retail gift shop, all as part of the existing Museum, with an accessory office, instructional classes and an accessory storage shed. (ZBA's 2/24/06 Findings of Fact, No. 1.) The Department of Licenses and Inspections refused the permit, explaining that the requested uses are not permitted in the R-1 District but are extensions of uses previously approved by the ZBA that also require the ZBA's approval. (ZBA's 2/24/06 Findings of Fact, No. 2.)

Woodmere appealed, arguing that the proposed expansion satisfies the criteria for the grant of variance relief pursuant to section 14-1802 of the Zoning Code*fn2 and constitutes a reasonable modification of prior ZBA approvals. Neighbors opposed the grant of the variance,*fn3 and the ZBA held four public hearings on the matter. (ZBA's 2/24/06 Findings of Fact, Nos. 3-4.) In its Findings of Fact, the ZBA summarized the testimony of the various witnesses, but made no specific credibility determinations or findings based on the summarized testimony.*fn4 Thereafter, in a unanimous opinion, the ZBA granted Woodmere's variance request, subject to certain provisos, and the trial court affirmed on appeal.

Neighbors then appealed to this court. Alleging numerous failures on the part of the ZBA, Neighbors argued that the ZBA erred and/or abused its discretion by granting Woodmere the requested variance and, thereby, allowing Woodmere to construct the proposed Museum addition. Among Neighbors' issues on appeal was whether the ZBA failed to consider Woodmere's variance request under the appropriate standards.

In considering the issue, we first observed that the trial court correctly recognized, and the parties essentially agreed, that this case is governed by the variance criteria set forth in section 14-1802(1) of the Zoning Code. North Chestnut Hill Neighbors v. Zoning Board of Adjustment, 928 A.2d 418 (Pa. Cmwlth. 2007). Quoting our supreme court's decision in East Torresdale Civic Association v. Zoning Board of Adjustment, 536 Pa. 322, 324-25, 639 A.2d 446, 447 (1994), we recognized that, "the criteria [set forth in section 14-1802(1)] can be boiled down into three key requirements, that of: 1) unique hardship to the property; 2) no adverse effect on the public health, safety or general welfare; and 3) the variance will represent the minimum variance that will afford relief at the least modification possible." North Chestnut Hill, 928 A.2d at 425.

We then addressed Neighbors' further argument that the ZBA erred or abused its discretion in finding that Woodmere satisfied all three of these requirements. We concluded that the ZBA's findings on the first two criteria, unnecessary hardship and detriment to the public, were amply supported by substantial evidence in the record. North Chestnut Hill. However, we agreed with Neighbors' contention that the ZBA erred in failing to make any findings of fact with respect to the third element, i.e., whether the variance was the minimum that would afford relief. We also agreed with Neighbors that the ZBA's findings and conclusions were inadequate with regard to the dispute concerning whether the Museum's proposed expansion complies with, or needs to comply with, the parking and screening requirements set forth respectively in sections 14-1402(7) and 14-1402(9) of the Zoning Code. Therefore, we held that a remand was required so that the ZBA might address and make findings with respect to "whether the proposed construction is the minimum that would afford relief to Woodmere and to resolve disputes over alleged Zoning Code noncompliance with regard to parking and screening." North Chestnut Hill, 928 A.2d at 427.

On remand, the ZBA held no additional hearings; instead, in its December 24, 2007, remand decision, the ZBA incorporated its February 24, 2006, Findings of Fact and Conclusions of Law and issued eleven Supplemental Findings of Fact and eight Supplemental Conclusions of Law based on the existing record. In the supplemental findings, the ZBA summarized relevant portions of the record testimony, credited all the evidence and testimony presented by the Museum and rejected the testimony of Neighbors' expert, Larry S. Waetzman.*fn5 (ZBA's 12/24/07 Findings of Fact, Nos. 2-5, 7-11.)

Upon consideration of the credible evidence, the ZBA found that: the Museum needs the expansion to continue to function as a museum that meets current industry standards and the requirements of the Zoning Code; the size of the proposed expansion is the minimum necessary to enable the Museum to exhibit its permanent collection, meet current industry standards and comply with Zoning Code requirements; Zoning Code sections 14-1402(7) and 14-1402(9), relating to parking and screening, were not applicable because the Museum is not a permitted use in the R-1 Residential District;*fn6 and the Museum's proposed parking and landscaping plans, which were based on a study of the needs of the Museum and the surrounding neighborhood, were adequate. (ZBA's 12/24/07 Findings of Fact, Nos. 5, 6, 9-11; ZBA's 12/24/07 Conclusions of Law, Nos. 6-7.) Accordingly, the ZBA concluded that Woodmere met its burden of proving all three of the elements needed for the grant of a variance and, once again, granted Woodmere's variance request, subject to the same provisos as before. Neighbors appealed to the trial court, which affirmed the ZBA by order dated January 27, 2009. Neighbors now appeal to this court.*fn7

Neighbors argue that the ZBA did not adequately address, or issue findings sufficient to comply with, the Commonwealth Court's remand order that the ZBA determine "whether the proposed construction is the minimum that would afford relief to Woodmere and to resolve disputes over alleged Zoning Code noncompliance with regard to parking and screening."*fn8 North Chestnut Hill, 928 A.2d at 427.

First, Neighbors argue that the ZBA abused its discretion and committed an error of law in finding that the 25,000 square foot addition to the Museum was the minimum variance needed. According to Neighbors, this court set an exacting standard for measuring the minimum variance on remand in North Chestnut Hill when we stated, "[a]lthough the record contains testimony that Woodmere's present nineteenth-century building does not contain or allow for certain amenities and facilities found in 'modern' art museums, the ZBA did not indicate in its summaries of testimony that a thriving institution demands a certain amount of display space, requires storage and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.