No. 1217 C.D. 2008.Commonwealth Court of Pennsylvania.Argued: June 11, 2009.
Filed: July 29, 2009.
BEFORE: SIMPSON, Judge; LEAVITT, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Center City Residents’ Association (Association) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) granting a use variance to Philadelphia Tribune Company, Inc. (Tribune) for its property located at 515 South 16th Street in Philadelphia. In doing so, the trial court affirmed the decision of the Philadelphia Zoning Board of Adjustment (Board) that Tribune should be permitted to conduct limited commercial activities in an area zoned for residential use. In this case, we consider whether Tribune satisfied its burden for obtaining a use variance under the City of Philadelphia Zoning Code (Zoning Code). Concluding that Tribune did not satisfy this burden, we must reverse the trial court’s order.
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Tribune is the publisher of The Philadelphia Tribune, a newspaper of general circulation in the Philadelphia metropolitan area. Tribune’s main offices are located at 520-526 South 16th Street, near the intersection with South Street, in the City of Philadelphia. Tribune has operated from this location for more than 100 years. In February 2001, Tribune purchased the subject property at 515 South 16th Street (Property). The Property is a three-story residential building located across the street from Tribune’s offices, on the corner of South 16th and Naudain Streets, and it lies within the City’s R-10 residential district. With the exception of the Tribune’s headquarters at 520-526 South 16th Street, the entire neighborhood is residential.[1] When Tribune purchased the Property, it was comprised of two residential apartments, each three stories in height. The rear unit is smaller, with three floors each measuring approximately 10 feet by 15 feet. The units are structurally separated, and the rear unit has its own private entrance.
In October 2006, Tribune applied to the Department of Licenses and Inspection for a permit to allow it to convert the front unit of the Property into office space while keeping the rear unit as a residential apartment. The application was refused because Tribune’s proposed commercial use was not a permitted use in the R-10 residential district.[2] Tribune appealed to the Board for a use variance.
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The Board conducted a hearing on January 30, 2007. Tribune’s President, Robert Bogle, testified that the prior owner of the Property resided on the premises and operated a church on the first floor of the front unit. Notes of Testimony, January 30, 2007, at 7 (N.T. ___). The prior owner died in 1998, and the Property stood vacant until Tribune purchased it in 2001. Bogle testified that the offices Tribune proposes to place in the Property will be in operation from 9:00 a.m. to 5:00 p.m. but will not be open to the public. The offices will not require additional parking since they will be staffed by employees from Tribune’s existing operations across the street. Tribune has agreed not to place any signage on the Property. Tribune also intends to restore brick facing to the façade of the Property to improve its appearance and make it blend in with adjacent properties. In short, Tribune argued that its proposed commercial use for the Property posed no detriment to the health, safety or welfare of the neighborhood and would not adversely impact parking or the level of traffic congestion.
The Association and several neighboring residents opposed Tribune’s application for a variance. The objectors testified that the neighborhood is residential and that commercial space is readily available for lease on nearby South Street. Residents fear that, contrary to Tribune’s assurances, any expansion of the newspaper’s office space will eventually lead to the hiring of more employees and the need for additional parking. There was no dispute that parking on this block of South 16th
Street is already at a premium because most of the on-street parking is designated “press only” from 8:30 a.m. to 6:00 p.m. N.T. 18-20. The Association advocated strict enforcement of the Zoning Code and argued that Tribune could not show sufficient hardship to justify the grant of a variance.
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The Board issued its Findings of Fact and Conclusions of Law on February 11, 2008. The Board cited its authority under Section 14-1801 of the Zoning Code to grant a variance from the City’s zoning laws “where, owing to special conditions, a literal enforcement of the provisions of [the Zoning Code] would result in unnecessary hardship.” Board Opinion at 4 (citing Zoning Code § 14-1801(1)(c)). The Board continued:
Pursuant to the Zoning Code § 14-1802(1) and (2), the Zoning Board is required to consider 20 separate criteria prior to granting a variance including, but not limited to, whether a literal enforcement of the provisions of this Title would result in unnecessary hardship; that the conditions which the appeal for a variance is based are unique to the property; that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property; that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant; that the grant of the variance will not substantially increase congestion in the public streets; that the grant of the variance will not impair an adequate supply of light and air to adjacent property; and that the grant of the variance will not adversely affect the public health, safety or general welfare.
Board Opinion at 4-5 (citing Philadelphia Zoning Code § 14-1802(1), (2)). The Board did not specifically address the foregoing requirements. Nevertheless, in its final conclusion of law the Board stated:
[T]he Zoning Board finds that [Tribune] has met its burden in support of the requested proposal. Therefore, a variance is granted with the provisos that the office plus apartment use is accessory to the newspaper; that there are no signs; and that the office is not open to the public.
Board Opinion at 5. The Association appealed the Board’s decision to the trial court.
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The trial court reviewed the Board’s proceedings and heard argument from the parties on the issue of whether Tribune demonstrated the requisite hardship for a use variance. The trial court did not receive additional evidence. At argument, Tribune asserted, for the first time, that the prior owner’s use of the Property had been legally non-conforming because the Property does not meet the minimum lot size and open space requirements for lots in the R-10 district. In support of this argument, Tribune cited a plot plan of the Property it had offered into evidence before the Board but which the Board did not specifically consider in its decision. The plot plan shows that the Property measures 57 feet, 2 inches by 16 feet, for a total lot area of approximately 912 square feet. Supplemental Reproduced Record at 8b (S.R.R. ___).[3]
Tribune argued, as an alternative ground for affirming the Board’s decision, that a variance was necessary because the non-conforming use had been abandoned during the time that elapsed following the prior owner’s death, and because the Property cannot be used as a two-unit residence given its current configuration.
The trial court conducted an appellate review of the Board’s decision and concluded that Tribune met the criteria for a use variance. The trial court noted that the Property is physically unique and that its shape and surroundings would create an unnecessary hardship for Tribune should the variance be denied. The trial court further noted that the Association’s objections to the variance concerned parking issues, which the trial court considered irrelevant to the grant or denial of a variance. The trial court affirmed the Board’s grant of a variance with
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provisos. The trial court did not address Tribune’s argument regarding abandonment of the Property’s non-conforming use status. The Association now appeals to this Court.
On appeal, [4] the Association argues, inter alia, that the Board erred in granting the use variance because Tribune failed to demonstrate that denying the variance would create an unnecessary hardship unique to the Property. We agree.
A party seeking a variance bears the burden of proving, inter alia, that an unnecessary hardship will result if the variance is not granted Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment, 831 A.2d 1255, 1262 (Pa.Cmwlth. 2003).
In general, unnecessary hardship may be shown by demonstrating either that physical characteristics of the property are such that the property could not be used for the permitted purpose or could only be conformed to such purpose at a prohibitive expense, or that the characteristics of the area are such that the lot has either no value or only a distress value for any permitted purpose.
Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of City of Philadelphia, 862 A.2d 745, 748 (Pa.Cmwlth. 2004). Under the Zoning Code, the applicant must also present evidence that the conditions on which the appeal for a variance is based are unique to the property and that the special
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conditions or circumstances forming the basis for the variance did not result from the actions of the applicant. Zoning Code, § 14-1802(1)(b) and (d).
Here, the Board concluded that Tribune met its burden for a variance under Section 1802 of the Zoning Code. The Board did not, however, cite any evidence of record to support that conclusion of law. Indeed, the record is devoid of evidence of a unique hardship. Tribune purchased the Property, which its own attorney described as a “plain, garden variety, three-story residential structure,” N.T. 3, knowing that it had been used as a residence. Nothing prevented Tribune from continuing that use, and Tribune offered no evidence that the Property could not presently be used as a residence. Tribune also offered no evidence that its perceived hardship is unique to the Property, as distinguished from the hardship arising from the impact of zoning regulations on the other properties on South 16th Street or the entire R-10 district. Tribune’s evidence consisted of the improvements it will make to the appearance of the Property and the steps it will take to leave the day-to-day life of the neighborhood unchanged. This evidence did not satisfy Tribune’s legal burden for a variance from zoning regulations. Because Tribune failed to offer substantial evidence in support of its request for a variance, the Board erred by granting the variance.[5]
Finally, we consider Tribune’s argument that we should affirm the Board’s grant of a variance on other grounds. Tribune contends, as it did before the trial court, that the non-conforming use of the Property was abandoned by operation of Section 14-104 of the Zoning Code because “the premises were not in use for any purpose for several years” following the death of the previous owner in
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1998. Tribune’s Brief at 4.[6] Tribune argues that because the Property does not satisfy the minimum lot size and open space requirements of Section 14-205 of the Zoning Code, a variance is necessary to prevent the unnecessary hardship of owning property for which there is no permitted use under current zoning. The problem with Tribune’s argument is that a record is necessary on the factual issues involved in determining whether and when the non-conforming use was abandoned. Tribune did not raise this theory before the Board, and the trial court did not take additional evidence. If Tribune wishes to obtain a variance on this ground, it should reapply to the Board and make a record.
For all of the foregoing reasons, we reverse the trial court’s order.
Judge Butler did not participate in the decision of this case.
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ORDER
AND NOW, this 29th day of July, 2009, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter, dated May 29, 2008, is REVERSED.
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