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In re Appeal of Chestnut Hill Community Association

Commonwealth Court of Pennsylvania

March 3, 2017

In Re: Appeal of Chestnut Hill Community Association Appeal of: Chestnut Hill Community Association, Lawrence D. McEwen, Eileen M. Reynolds, Tom Hemphill and Susan Hemphill

          Argued: February 7, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JULIA K. HEARTHWAY, Judge.

          OPINION

          ANNE E. COVEY, Judge.

         Chestnut Hill Community Association (Association), Lawrence D. McEwen, Eileen M. Reynolds (Reynolds), Tom Hemphill and Susan Hemphill (Hemphill) (collectively, Appellants) appeal from the Philadelphia County Common Pleas Court's (trial court) June 8, 2016 order denying their appeal from the City of Philadelphia (City) Zoning Board of Adjustment's (ZBA) decision granting a variance to Jonathan Bernadino (Applicant) and Lindsay Bernadino (collectively, Owners) for an open-air parking space at their property located at 210 Evergreen Avenue, Philadelphia (Property). The issue presented for this Court's review, essentially, is whether the ZBA and the trial court erred by finding that denial of the variance would result in an unnecessary hardship.[1]

         The Property consists of a 126' by 25' lot improved with a semidetached, single-family home, located in a Residential Single-Family Attached-3 Zoning District (RSA-3 Zoning District). The house is set back 19'4", and its front porch is set 13'2" back from the Property's front lot line. On December 8, 2014, Applicant applied to the Philadelphia Department of Licenses and Inspections (Department) for a zoning/use registration permit (variance) to construct a single-car, open-air parking space in the Property's front yard. See Reproduced Record (R.R.) at 15a. Applicant specifically proposed to create a 12' by 19'4" driveway that would be accessed by a 12' curb cut at the front of the Property. On April 6, 2015, the Department refused the request because the proposed space would not meet the required setback requirements and, with the exception of certain circumstances not applicable here, Section 14-803(1)(b)(.1)(.a)(.ii) of the Philadelphia Zoning Code (Zoning Code)[2] expressly prohibited accessory surface parking spaces in front, side and rear yards. Zoning Code § 14-803(1)(b)(.1)(.a)(.ii); R.R. at 314a.

         On May 5, 2015, Applicant appealed to the ZBA, which held a hearing on July 14, 2015, at which the City's Planning Commission, Appellants and others opposed the variance. On August 4, 2015, the ZBA granted Applicant's variance request. Appellants appealed to the trial court, which, without taking additional evidence, heard oral argument on April 20, 2016. On June 8, 2016, the trial court affirmed the ZBA's decision. On July 6, 2016, Appellants appealed to this Court.[3]

         Initially, Section 14-803(1)(b)(.1)(.a) of the Zoning Code states, in relevant part:

Except as specified in [Section] 14-803(1)(b)(.1)(.b) [of the Zoning Code] (Exceptions) below, accessory parking in Residential . . . Districts must comply with the requirements in this [Section] 14-803(1)(b)(.1)(.a) [of the Zoning Code]
(.ii) Surface parking spaces and detached garages and carports are prohibited in required front, side, and rear yards.
(.iii) Driveways that provide vehicular access to accessory parking spaces may be located in required front, side, or rear yards.

         Zoning Code § 14-803(1)(b)(.1)(.a); R.R. at 314a (emphasis added). Because a parking space like the one Applicant proposed is expressly prohibited everywhere on the Property, a variance is necessary.

         Section 14-103(4)(a) of Zoning Code provides that the ZBA "may, after public notice and public hearing . . . [a]uthorize variances from the terms of this Zoning Code[.]" Zoning Code § 14-103(4)(a).

An applicant seeking a 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 [Ass'n] v. Zoning [Bd.] of Adjustment, . . . 462 A.2d 637 ([Pa.] 1983). When an applicant seeks a variance for a property located in Philadelphia, the [ZBA] must also consider the factors set forth in the [Zoning Code]. Wilson v. Plumstead [Twp.] Zoning Hearing [Bd.], . . . 936 A.2d 1061 ([Pa.] 2007).

Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 (Pa. Cmwlth. 2011).

         Section 14-303(8)(e) of the Zoning Code sets forth the ZBA's variance approval criteria:

The [ZBA] shall grant a variance only if it determines that the applicant has demonstrated that the criteria of [Section] 14-303(8)(e) [of the Zoning Code] (Criteria for Approval) have been met and that any applicable criteria in [Section] 14-303(8)(f) [of the Zoning Code] (Additional Criteria for Floodplain Variances) through [Section] 14-303(8)(h) [of the Zoning Code] (Additional Criteria for Height Variances Near the Airport) have been met. Otherwise, the [ZBA] shall deny the variance.
(.1) General Criteria.
The [ZBA] may grant a lesser variance than requested, and may attach such reasonable conditions and safeguards as it may deem necessary to implement this Zoning Code, including without limitation a limitation on the size or duration of the variance, consistent with [Section] 14-303(9) [of the Zoning Code] (Conditions on Approvals). The [ZBA] shall, in writing, set forth each required finding for each variance that is granted, set forth each finding that is not satisfied for each variance that is denied, and to the extent that a specific finding is not relevant to the decision, shall so state. Each finding shall be supported by substantial evidence. If the [ZBA] chooses to view the subject property as part of the hearing, the [ZBA] must provide due process. Reports of other City agencies made as a result of inquiry by the [ZBA] shall not be considered hearsay. Upon request of any party, the [ZBA] may compel the attendance of the City agency. The [ZBA] shall grant a variance only if it finds each of the following criteria are satisfied:
(.a) The denial of the variance would result in an unnecessary hardship. The applicant shall demonstrate that the unnecessary hardship was not created by the applicant and that the criteria set forth in [Section] 14-303(8)(e)(.2) [of the Zoning Code] (Use Variances) below, in the case of use variances, or the criteria set forth in [Section] 14-303(8)(e)(.3) [of the Zoning Code] (Dimensional Variances) below, in the case of dimensional variances, have been satisfied;
(.b) The variance, whether use or dimensional, if authorized will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue;
(.c) The grant of the variance will be in harmony with the purpose and spirit of this Zoning Code;
(.d) The grant of the variance will not substantially increase congestion in the public streets, increase the danger of fire, or otherwise endanger the public health, safety, or general welfare;
(.e) The variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property;
(.f) The grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park, or other public facilities;
(.g) The grant of the variance will not adversely and substantially affect the implementation of any adopted plan for the area where the property is located; and
(.h) The grant of the variance will not create any significant environmental damage, pollution, erosion, or siltation, and will not significantly increase the danger of flooding either during or after construction, and the applicant will take measures to minimize environmental damage during any construction.

         Zoning Code § 14-303(8)(e) (text emphasis added); R.R. at 301a-302a.[4]

         This Court has summarized:

In essence, an applicant seeking a variance pursuant to the [Zoning Code] must demonstrate that: (1) the denial of the variance will result in unnecessary hardship unique to the property; (2) the variance will not adversely impact the public interest; and (3) the variance is the minimum variance necessary to afford relief. Hertzberg [v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998)]. The burden on an applicant seeking a variance ...

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