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Bawa Muhaiyaddeen Fellowship v. Philadelphia Zoning Board of

March 28, 2011

BAWA MUHAIYADDEEN FELLOWSHIP, APPELLANT
v.
PHILADELPHIA ZONING BOARD OF ADJUSTMENT AND CITY OF PHILADELPHIA



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: October 12, 2010

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE McCULLOUGH

Bawa Muhaiyaddeen Fellowship (Appellant), appeals from the April 14, 2009, order of the Court of Common Pleas of Philadelphia County (trial court), affirming the March 28, 2008, decision of the Philadelphia Zoning Board of Adjustment (Board), which denied Appellant's application for a use variance. We affirm.

Facts and Procedural History

Appellant was founded in 1971 in honor of Mohammed Raheem Bawa Muhaiyaddeen, a Sufi saint from Sri Lanka. Appellant owns two adjoining parcels of property, which are located at 5820 Overbrook Avenue and 5830 Overbrook Avenue, in a neighborhood known as Overbrook Farms in Philadelphia, Pennsylvania. Both properties are located in an R-2 zoning district pursuant to the Philadelphia Zoning Ordinance (Ordinance). Intervenor, Overbrook Farms Club (Overbrook), is an

association that represents property owners in Overbrook Farms with the express intent of preserving the residential character of the neighborhood. Appellant purchased the property at 5830 Overbrook Avenue in 1973 as a place of worship for its members. In 1984, Appellant constructed a mosque on that property pursuant to a legal nonconforming use. Bawa Muhaiyaddeen resided on the property from the early 1970's until his death in 1986. When Bawa Muhaiyaddeen passed away, he left his followers 15,000 hours of audio recordings and 1,500 hours of video recordings, which remain on the property. The mosque and Mr. Bawa's room are considered holy places where followers come to meditate and consider Mr. Bawa's teachings.

In 2001, Appellant purchased the adjacent property, at 5820 Overbrook Avenue (subject property), which includes a single family home, in order to accommodate the growing needs of its fellowship. Appellant began renovating the subject property immediately. On August 9, 2007, Appellant applied to the

Department of Licenses and Inspection for permission to change the use of the subject property from a single family residence to the following: a mechanical room in the basement; an office with a conference room on the first floor; additional offices on the second floor; and a caretaker's apartment on the third floor. (Findings of Fact, Nos. 1, 12.) The Department of Licenses and Inspection denied Appellant's application, concluding that the proposed use of the subject property for religious offices and a religious conference room is not permitted in an R-2 Residential District. (Finding of Fact No. 6.)

Appellant appealed to the Board, asserting that the denial of the use variance would result in unnecessary hardship and that the proposed use of the property is not contrary to the health, safety and welfare of the surrounding community. (Finding of Fact No. 8.) Following a public hearing, the Board denied Appellant's application for a use variance on March 19, 2008, concluding that

Appellant did not satisfy its burden to demonstrate undue hardship and that granting the variance would create an overuse of the subject property. (Conclusion of Law No. 10.) Appellant appealed the Board's decision to the trial court. By order dated April 14, 2009, the trial court denied the appeal and affirmed the decision of the Board. Appellant now appeals to this Court.*fn1

Landowner's Burden for Variance

A party seeking a use variance must prove that unnecessary hardship will result if the variance is denied and that the proposed use is not contrary to the public interest. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). When a party seeks a variance for a property located in Philadelphia, the Board must also consider the factors set forth in the Ordinance.*fn2 Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 936 A.2d 1061 (2007). In essence, a landowner seeking a variance pursuant to the

Ordinance must demonstrate that: (1) the denial of the use variance will result in unnecessary hardship unique to the property; (2) the proposed use will not adversely impact the public interest; and (3) the variance is the minimum variance necessary to afford relief. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). The burden on a landowner seeking a variance is a heavy one, and the reasons for granting the variance must be substantial, serious and ...


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