Key Topic: Nonconformities/Variances

In determining whether a variance may be granted under the Philadelphia Zoning Code, all three factors must be considered: (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 Neighbors v. Zoning Board of Adjustment of the City of Philadelphia and Woodmere Art Museum,
928 A.2d 418 (Pa. Commw. Ct. 2007).

Woodmere is an art museum that has been used as an art museum prior to the enactment of the Philadelphia Zoning Code.  It is in a R-1 Residential district.  Woodmere submitted an application to the Department of Licenses and Inspections seeking a permit to build an addition, and its application was denied.  Woodmere then appealed, arguing that the expansion satisfies the criteria for the grant of a use variance. Based upon testimony by several witnesses, the Zoning Board of Adjustment granted the variance request.  Neighbors appealed the grant of the variance.

The Commonwealth Court previously set forth the criteria for granting a variance, namely, (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.

Here, the Commonwealth Court found that unnecessary hardship was proven because the museum, as is, lacks the space and facilities to continue its mission as a modern public art museum.  Also, the Woodmere currently suffers from storm water runoff problems that the new addition will alleviate.  Also, there was enough evidence that the variance would not be detrimental to the public interest because, among many things, Woodmere has long been a benefit to the public, and the addition would be set back from neighboring residences and would not create traffic problems.  However, the court noted that the board did not even address the third element of whether the variance would represent the minimum variance that would afford relief at the least modification possible.  For that reason, the court remanded.

A dissenting opinion was also filed, in which, Judge Pelligrini argued that the grant of a use variance for a use already in existence is unauthorized, and therefore, the application should have been one for the expansion of a non-conforming use.

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