Broad St. Neighborhood Ass’n v. Zoning Bd. Of Adjustment, 2019 Pa. Commw. LEXIS 430 (May 7, 2019)

An application for a use variance that alleges marketability concerns alone will not satisfy the unnecessary hardship threshold unless that hardship is due to unique physical conditions peculiar to the property.
Case Details:

Applicant purchased a three-story building (Property) in an RSA-5 zoning district. The Philadelphia Zoning Code (Zoning Code) prohibited multi-family uses in RSA-5 zoning districts. The Zoning Board of Adjustment (ZBA) previously granted a variance to Applicant’s predecessor in interest that allowed use of the Property as a three-unit multi-family dwelling. Applicant applied to the ZBA for a use variance to convert the Property from three residential units into five. At a hearing, Applicant testified that the current use was unfeasible because the three units were larger than typical unit sizes in the area and would consequently be more expensive for renters than other units in the area. However, two of the three units were occupied at the time of the hearing. The ZBA granted Applicant’s use variance because it determined an unnecessary hardship was shown through the marketability concerns of the first and second floor units and because the variance would not adversely affect the public health, safety, or welfare. The Court of Common Pleas reversed the ZHA’s decision.

On further appeal, the Commonwealth Court discussed the two relief avenues Applicant could have taken regarding the existing variance. Applicant could either seek relief from the three-unit condition attached to the existing variance or could meet the traditional standard for granting new variances. In either scenario, Applicant must show a hardship. Applicant could not seek relief from the conditions attached to the existing variance because there was no change in circumstances regarding the existing variance. Therefore, Applicant had to meet the standard for obtaining a new variance.

To meet the unnecessary hardship standard under the Zoning Code, Applicant was required to show that the hardship was due to unique physical circumstances or conditions peculiar to the Property. The court stated that Applicant’s marketability concerns were insufficient to establish an unnecessary hardship because they only spoke to which uses were appropriate, convenient, or reasonable for the Property. Applicant’s concerns did not address how unique aspects of the Property imposed an unnecessary hardship, as there was no comparison of square footage, rental rates, or rental prospects with similar properties in the area. Further, Applicant made reasonable use of the Property under the three-unit variance without undue financial burden, as two of the units were rented out. Ultimately, the application was denied because Applicant failed to show an unnecessary hardship due to the unique physical conditions of the three-unit apartment and relied solely on marketability concerns.



Date of Decision: 5/7/19

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