March 28, 2011
BAWA MUHAIYADDEEN FELLOWSHIP, APPELLANT
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 compelling. Valley View. Further, a use variance carries a greater risk of injury to the public interest than a dimensional variance. Id.
Appellant asserts that the denial of the use variance results in unnecessary hardship because the subject property is surrounded by properties used for religious purposes, including a Cardinal's home, the convent adjacent to the Cardinal's home, and the residence owned by Saint Joseph's University and, therefore, is valueless and unusable as a residential property.*fn3 In support of this assertion, Appellant cites Valley View, where our Supreme Court noted that the use of adjacent and surrounding land is unquestionably relevant in evaluating hardship. Id. at 556, 462 A.2d at 640. There, the court upheld the grant of a use variance by the Board because the "extensive commercial and industrial uses in the immediate vicinity rendered [the] property virtually unusable and of scant value for traditional residential purposes."*fn4 Id. at 559, 462 A.2d at 642. Appellant also asserts that the unique nature of the adjacent property as a place of worship results in unnecessary hardship because Appellant intends to use the subject property in connection with the adjacent property.
In order to establish unnecessary hardship, a party must demonstrate that the property cannot be used for a permitted purpose, that the cost of conforming the property for a permitted purpose is prohibitive, or that the property has no value for a permitted purpose. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225 (1997).*fn5 Here, Appellant provided evidence that several of the properties surrounding the subject property are owned by religious institutions, but Appellant did not demonstrate that these neighboring properties are nonconforming or render the subject property unfit for residential use. As Overbrook observes, Appellant did not present evidence that the Cardinal's home, the convent adjacent to the Cardinal's home, or the residence owned by Saint Joseph's University are utilized for something other than residential use.*fn6 Moreover, the record reflects that the subject property was used as a single family residence for one hundred years before it was purchased by Appellant and that in 1980, Overbrook Farms was placed on the National Register of Historic Places, in part because of the residential character of the neighborhood. Thus, Appellant did not meet its burden to demonstrate that the property is unfit or of scant value for residential use.
To the extent Appellant argues that the unique nature of the adjacent property results in unnecessary hardship, we note that the relevant inquiry is whether the hardship created by the application of the zoning provisions is unique to the subject property as distinguished from the hardship arising from the impact of the zoning regulations on the entire district, or the impact of the zoning regulations on the owner of the property. Somerton Civic Association v. Zoning Board of Adjustment, 471 A.2d 578 (Pa. Cmwlth. 1984); see also Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of City of Philadelphia, 771 A.2d 874, 878 (Pa. Cmwlth. 2001), appeal denied, 567 Pa. 733, 786 A.2d 992 (2001) (stating that "just because a person wants to do more with his or her land in addition to the use that it is presently being used for is not a sufficient unnecessary hardship unique to that piece of land."); Zappala Group, Inc. v. Zoning Hearing Board of Town of McCandless, 810 A.2d 708, 711 (Pa. Cmwlth. 2002) (providing that a use variance "is appropriate only where the property, not the person, is subject to hardship") (emphasis in original) (internal citation omitted). Here, the hardship alleged is unique to Appellant and its use of the adjacent property, not the subject property. Thus, Appellant did not meet its burden to demonstrate the hardship alleged is unique to the subject property.*fn7
With regard to considerations of the public interest, Appellant asserts that the Board erred in concluding that the proposed uses will create an overuse of the subject property. Appellant avers that granting the variance will merely result in a shift of uses from the adjacent property to the subject property. In support of these contentions, Appellant again relies on Valley View, which concluded that the Board's decision that the proposed use of the property as a sandwich shop was not contrary to the public interest was supported by substantial evidence that "the anticipated clientele of the proposed sandwich shop were motorists already on the Avenue, that there were an adequate number of legal parking spaces in front of the property and that [the] proposed plans included eleven off-street parking spaces in the rear of the property." Id. at 560, 462 A.2d at 642.
However, Appellant did not present evidence that granting the variance would merely shift the proposed uses from the adjacent property to the subject property or that an adequate number of parking spaces exist in front of or on the subject property. Rather, Pat Andrews, the General Secretary for Appellant, testified that eight volunteers will use the subject property daily and up to twelve additional people will visit the library and utilize the conference room each week.*fn8 (R.R. at 19- 20.) Moreover, several residents of Overbrook Community testified that the influx of nonresidential uses exacerbates existing traffic and parking problems, and Andrews acknowledged that fellowship members sometimes park on the subject property when parking is not available on the street.*fn9 (R.R. at 24, 45.) Residents of Overbrook
Community further testified that the decision to move to Overbrook is based on their desire to live in a stable, historic, residential community and that granting the variance will deter future investment in single family homes because residents will not be secure in the idea that the neighborhood will retain its residential character.*fn10 (R.R. at 40, 45-46, 53, 56, 61.) Thus, the evidence before the Board was sufficient to support the Board's determination that the proposed use of the property was contrary to the public interest.
Finally, Appellant avers that the Board's refusal to grant the variance violates the equal protection clause of the Fourteenth Amendment, which provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws."*fn11 U.S. Const. amend. XIV. A land use ordinance that does not classify by race, alienage, or national origin, will survive an attack based on the equal protection clause if the ordinance is reasonable, not arbitrary and bears a rational relationship to a legitimate state objective. Congregation Kol Ami v. Abington Township, 309 F.3d 120 (3d Cir. 2002). The court in Congregation Kol Ami provided the following standard for determining if a zoning ordinance violates the equal protection clause:
The first inquiry a court must make in an equal protection challenge to a zoning ordinance is to examine whether the complaining party is similarly situated to other uses that are either permitted as of right, or by special permit, in a certain zone.
Id. at 137 (emphasis provided). If a landowner meets its burden to demonstrate that the proposed use of a property is similarly situated to other uses permitted as of right or by special permit, the burden then shifts to the municipality to demonstrate that the use regulations are rationally related to a legitimate interest in promoting the public health, safety, morals, and general welfare of its citizens. Id. at 133. Zoning is discriminatory by design, and municipalities are permitted to create exclusive residential districts so long as they have a rational basis for distinguishing between uses. Id. at 136.
Thus, Appellant's burden is to demonstrate that the proposed nonconforming uses are similarly situated to uses permitted by right or by special permit. Appellant observes that sections 14-203(3)(b) and (c) of the Ordinance permit the following uses in a R-2 zoning district: single family detached dwelling; accessory uses; signs; and family day care centers for up to six children.*fn12 Appellant avers that its proposed use of the third floor of the subject property as a caretaker's residence is similar to the permitted use as a single family detached dwelling.*fn13 Appellant also contends that the proposed nonconforming uses of the subject property for offices, a library, and conference rooms for the Bawa Fellowship are similar to use as a family day care center, in that the proposed uses are low intensity and will benefit the residents in the community.*fn14 Lastly, Appellant asserts that the proposed uses for the subject property are similarly situated to surrounding non-conforming religious uses, including properties owned by Saint Joseph's University and the Pentecostal Christian Church.
We recognize that the use of the entire subject property as a caretaker's residence may be a use "similarly situated" to a use as a single family detached dwelling. In fact, nothing in the record suggests that the use of the subject property as a caretaker's residence was a significant factor in the Board's denial of the use variance, and Overbrook acknowledges that the use of the subject property as a caretaker's residence is permitted in the R-2 zoning district. Thus, the use of the subject property as a caretaker's residence is irrelevant to the determination of whether Appellant was denied equal protection of the law.
To the extent that Appellant argues that the proposed nonconforming uses of the property for a conference room, library, and offices for volunteers and visitors of the Bawa Fellowship are similarly situated to use as a family day care center, we note that a family day care center must be conducted in a manner that is incidental to the primary use of a property as a residence, which is a use as of right, while the proposed nonconforming use of the subject property as a visiting center for volunteers and scholars is not incidental to the primary use of the property as a residence and does not involve a use as of right. Further, use as a family day care center is limited to six children and is closely regulated while the proposed nonconforming use of the subject property does not limit the number of volunteers or visiting scholars and is not subject to regulatory oversight. Accordingly, not only is Appellant's argument that the proposed non-conforming use is similarly situated because it is low intensity and beneficial to the community not supported by the record, it misconstrues the applicable standard of review for an equal protection claim. Thus, we conclude that the proposed use of the property is not similarly situated to a family day care center as defined by the Ordinance.
With respect to the use of adjacent properties for religious purposes, Appellant did not present any evidence necessary to establish how the Cardinal's residence or the property owned by Saint Joseph's University are used or if they are in fact nonconforming; nothing in the record suggests that the properties are used for anything other than residential use, which is permitted in the R-2 zoning district.*fn15 Further, unlike the Pentecostal Church, Appellant does not intend to use the subject property as a place of worship.*fn16 Thus, Appellant did not meet its burden to demonstrate that the proposed use of the property is similarly situated to the use of surrounding properties.
Because Appellant did not meet its burden to first demonstrate that the proposed nonconforming use of the subject property as a library, conference room, and offices for volunteers and visitors of the Bawa fellowship is similarly situated to other permitted uses or uses as of right in the R-2 zoning district, Appellant's equal protection argument fails and we do not have to reach the issue of whether the Ordinance is supported by a rational basis for distinguishing between uses.*fn17
Accordingly, for the foregoing reasons, we affirm.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bawa Muhaiyaddeen Fellowship, Appellant v. Philadelphia Zoning Board of Adjustment and City of Philadelphia
No. 1078 C.D. 2009
AND NOW, this 28th day of March, 2011, the April 14, 2009, order of the Court of Common Pleas of Philadelphia County is hereby affirmed.
PATRICIA A. McCULLOUGH, Judge