Soc’y Hill Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Commw. Ct. 2012).

Variance properly denied where developer could have complied strictly with the ordinance by reducing the intensity of its proposed development.
Case Details:

Applicants applied to the Philadelphia Department of Licenses and Inspections for a zoning/use-registration permit to construct a structure for twelve dwelling units and a library together with thirteen accessory parking spaces.  The Department denied the application, in part, because the plan lacked a loading space.  Applicants appealed to the Zoning Board of Adjustment which reversed and granted the application.

On appeal to the Commonwealth Court, the Court noted the Zoning Code required one loading space because the project exceeded 50,000 square feet and Applicant’s variance was to eliminate that requirement.  The Zoning Board of Adjustment permitted the variance because it believed a hardship existed since a truck could not access a loading area in the rear of the subject property due to the narrowness of the streets and that the Applicant did not create the hardship.  The Commonwealth Court rejected Applicant’s argument because Applicant’s own expert testified that the proposal triggered the loading requirement because development would exceed 50,000 square feet.  If the proposal were less than 50,000 square feet, no loading area would be required under the Zoning Code.  Moreover, the property could be used in compliance with the Zoning Code in its current state as a single-family residence.  Because Applicants’ plan to construct a building that exceeds 50,000 square feet is the cause of the hardship, and because the property can be used in compliance with the Zoning Code, the variance was properly denied even under the relaxed Hertzbergstandard.

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