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Carl N. German v. Zoning Board of Adjustment

April 9, 2012


The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: February 14, 2012



Appellant Carl N. German (Objector) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), affirming an order of the Philadelphia Zoning Board of Adjustment (Board). The Board‟s order granted, in part, a petition filed by Mixto, Inc. (Mixto), a restaurant and bar, seeking permission to extend its business hours to 2:00 a.m. every day. We reverse the trial court.

Mixto is located at 1141-43 Pine Street in Philadelphia. In April 2001, the Board granted a variance, enabling the owner of the property, Jorgi Mosquera (Owner), to construct a two-story addition on the property and to use the property as a restaurant. The Board included as a condition in granting the variance that Owner limit the hours he operates Mixto to 8:00 a.m. to 11:00 p.m. Monday through Thursday and 8:00 a.m. to 12:30 a.m. on Friday, Saturday, and Sunday.

In April 2008, Mixto submitted to the City‟s Department of Licenses and Inspections (Department) an application for Zoning/Use Registration Permit, to allow Mixto and its bar to operate until 2:00 a.m. daily. The Department denied the application, and Mixto appealed that decision to the Board. Before the Board, Mixto indicated that it was not seeking a variance, but rather modification of the Board‟s original limitations on Mixto‟s operational hours. (Reproduced Record (R.R.) at 34a.)

The Board determined that Mixto was entitled to a modification of the original 2001 conditions attached to its grant of the variance. The Board found that "the increasing number of restaurants that are open until 2 a.m. in the neighborhood East of Broad Street, as well as Center City as a whole, is a changed circumstance which makes an extension of hours appropriate on Thursday, Friday and Saturday nights only." (Finding of Fact No. 32.) The Board also determined that "[Mixto did not show] that the adverse effects of the national and local economic difficulties are such as to require that it be granted relief from the limits imposed on its hours of operation on Sunday through Wednesday nights." (Finding of Fact No. 33.) Based upon its factual determinations, the Board concluded that "[Mixto] has sustained [its] burden of proving a proliferation of restaurants open until 2 a.m. and the national and local economic contraction, which are changed circumstances that make the previously imposed limitation of hours inappropriate." (Conclusion of Law No. 3.) The Board also concluded that, based on the record as a whole, permitting Mixto to extend its hours to 2:00 a.m. on Thursday through Saturday evenings "will not injure the public because, although some individuals may suffer inconvenience, there will be at least an equal amount of benefit to them and other members of the public." (Conclusion of Law No. 5.)

Objector appealed the Board‟s decision to the trial court. The trial court conducted a hearing on the appeal, during which no party sought to submit additional evidence. The trial court considered: (1) whether Objector had standing to appeal the Board‟s decision; (2) whether the record created before the Board lacked sufficient evidence to support the Board‟s necessary factual determinations; and (3) whether the Board misapplied the pertinent legal standard in considering Mixto‟s application to modify the conditions of the variance.

The trial court issued an order affirming the Board‟s decision, and Objector appealed to this Court. Objector filed a statement of matters complained of on appeal, and the trial court issued an opinion indicating that economic downturn and competition constituted sufficient changed circumstances to support the requested modification. The trial court also accepted the Board‟s rationale regarding the balance of public benefits falling in favor of permitting Mixto‟s request for extended hours or operation.

In his appeal,*fn1 Objector raises the following issues: (1) whether the Board erred in concluding that increased competition and a downturn in the economic climate are sufficient to establish a change in circumstances necessary for modification of conditions imposed in granting an earlier variance; (2) whether the record contains sufficient evidence to support the factual findings concerning the economic downturn and increased competition that Mixto relied upon as a basis for the modification; and (3) whether the Board erred in concluding that the record contained sufficient evidence to support its conclusion that the grant of the requested modification would not injure the public.

In Ford v. Zoning Hearing Board of Caernarvon Township, 616 A.2d 1089 (Pa. Cmwlth. 1992), this Court considered a property owner‟s request to remove conditions that a zoning hearing board had attached to its grant of a variance. The conditions associated with the original zoning approval in Ford were deed restrictions preventing further subdivision of a tract of land as a condition for the grant of a variance. The change in circumstances involved in Ford was a proposal by the property owner to re-subdivide its land in such a manner that the newly subdivided lots would satisfy all of the dimensional criteria of the zoning ordinance.

In analyzing the issue, we referred to and quoted from Robert Ryan‟s treatise on zoning and land:

An owner which wishes to obtain a modification of a condition which has become final can obtain relief if he establishes:

(1) Either grounds for traditional variance (Saber) or changed circumstances which render the ...

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