Failure To Establish Undue Hardship For Zoning Variances

Written by: Alan Nochumson

Not all properties are created equal, so to speak. Based upon the zoning code of the local jurisdiction, there are limitations as to how the property may be used and developed. If the property owner wishes to use or develop the property in a manner that differs from what is allowed by the applicable zoning code, the property owner may seek what is called a “variance” from the local zoning board.

In Jenkins v. City of Philadelphia, 2015 Pa. Commw. Unpub. LEXIS 578 (Aug. 3, 2015), the Commonwealth Court found that the city of Philadelphia’s Zoning Board of Adjustment improperly granted several variances for a property development project just north of the Chinatown section of Philadelphia.

In 2013, Greenway LLC filed an application with the city of Philadelphia’s Department of Licenses and Inspections (L&I) for a zoning/use registration permit to combine several properties it owned. As part of the proposed consolidation of the properties, Greenway sought to repurpose a building located on the properties for commercial and residential use. The zoning/use application was denied by L&I through the issuance of a notice of refusal because the combined property’s zoning classification only allowed for industrial use of the properties and the proposed property development did not contain a sufficient amount of parking and bicycle spaces under the Philadelphia Zoning Code.

Greenway then filed an application for appeal of the notice of refusal to the city of Philadelphia’s Zoning Board of Adjustment, seeking use and dimensional variances for the proposed property development.

Subsequently thereafter, a public hearing took place before the Zoning Board of Adjustment delving into the merits of the application for appeal. At the hearing, Greenway, through its attorney, argued that the proposed combined property’s current industrial zoning classification was no longer viable for the following reasons: (1) the building situated on the properties had been vacant for almost a decade; (2) adjacent to the properties was a mixed-use commercial district; (3) other residential projects in the surrounding neighborhood had recently been approved by the Zoning Board of Adjustment; and (4) there were currently no existing industrial uses in the neighborhood.

As for the variance requested by Greenway for the parking spaces, its attorney explained that Greenway could not accommodate the amount of parking spaces required by the Philadelphia Zoning Code due to the structural limitations of the building located on the combined property. In furtherance of that argument, Greenway’s attorney presented the testimony of Greenway’s architect who explained about the difficulty of accommodating the amount of parking spaces otherwise required under the Philadelphia Zoning Code.

During the hearing, Brian Jenkins, a pastor whose parish was located in close proximity to the combined property, objected to the requested zoning variances.

After the hearing, the zoning board concluded that Greenway had met its burden of establishing entitlement to the variances to proceed with its proposed property development based upon the reasons set forth by Greenway at the hearing.

Jenkins appealed the ruling to the Philadelphia Court of Common Pleas.

Without the introduction of any additional evidence, the ruling made by the Zoning Board of Adjustment was affirmed by the trial court.

Jenkins then appealed the zoning matter to the Commonwealth Court.

On appeal, Jenkins contended that the Zoning Board of Adjustment abused its discretion and otherwise committed an error of law in granting the variances to Greenway because there was no evidence in the record to support its ruling.

In a memorandum opinion written by Judge Bonnie Brigance Leadbetter, the Commonwealth Court agreed with Jenkins’ contention.

At the beginning of the memorandum opinion, Leadbetter pointed out that the Philadelphia Zoning Code sets forth the specific criteria that must be met before the zoning board may grant a variance, which, according to Leadbetter, “essentially boils down to three key requirements: (1) that there is a unique hardship to the property; (2) that there is no adverse effect on the public health, safety or welfare; and (3) that it is the minimum variance that will afford relief at the least modification possible.”

In Leadbetter’s own words, “The reasons for granting a variance must be substantial, serious and compelling, and the party seeking the variance bears the burden of proving that an unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to the public interest,” “the hardship must be unique or peculiar to the property at issue, and not one that arises from the impact of the zoning regulations on the entire district,” and “when evaluating whether a hardship exists, the use of adjacent and surrounding land is unquestionably relevant.”

Citing to the Supreme Court of Pennsylvania’s ruling in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), Leadbetter pointed out that “an unnecessary hardship is established by evidence that: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property has no value for any purpose permitted by the zoning ordinance.”

After reviewing the record in Jenkins, Leadbetter did not believe that Greenway established the existence of such an unnecessary hardship entitling it to the requested variances.

First of all, Leadbetter chastised Greenway for the limited and type of testimony presented at the hearing before the Zoning Board of Adjustment. Other than its architect who testified at the hearing about the structural limitations of the pre-existing building structure to allow for the requisite amount of parking spaces, the remaining support of the issue of hardship unique to the combined property was presented through factual assertions made by Greenway’s own attorney.

Quoting from Philadelphia Zoning Board of Adjustment v. Earl Scheib Realty, 301 A.2d 423 (Pa. Commw. Ct. 1973), Leadbetter pointed out that “‘assurances of the applicant’s attorney,’ offered as they were in support of establishing a hardship unique to the property at issue, ‘hardly can be considered a meeting of the burden placed upon the applicant/appellee.'”

Leadbetter was equally dismissive of the arguments made by Greenway’s attorney at the hearing in support of the requested variances, such as the duration of time the building located on the proposed combined property had been vacant and that the proposed combined property was located adjacent to a mixed-use commercial district.

As for the vacancy of the building, citing to a litany of cases, Leadbetter emphasized that Pennsylvania courts “have required more than just vacancy itself to supply the necessary finding of hardship.”

For example, Leadbetter stated that the Commonwealth Court held in South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115, 122 (Pa. Commw. Ct. 2012), that the Zoning Board of Adjustment “reasonably concluded that the applicant’s sustained but unsuccessful attempt to sell the property for five years for an industrial use and on which stood a vacant building established an unnecessary hardship.”

In contrast, in Jenkins, according to Leadbetter, Greenway made no attempt whatsoever to prove that there was no market for the other permitted uses under the Philadelphia Zoning Code other than its own attorney’s “conclusory” statement that the current zoning classification was no longer viable and there was no evidence presented that it would be more costly to develop the combined property for such uses than for the one proposed.

Unlike South of South Street where the property owner made five years of unsuccessful attempts to market the property for its permitted use, Leadbetter stated that Greenway presented no evidence in the record whether any such attempt to market the proposed combined property was made.

As for the changing nature of the neighborhood as a whole, Leadbetter warned about the limited powers of the Zoning Board of Adjustment. Relying upon the treatise of “Pennsylvania Zoning Law and Practice” written by Robert S. Ryan, Leadbetter reiterated that “most of the rules which limit variances are designed to keep the variance power from growing to a general legislative power. This is the central problem in variance law. It is reflected in the concept that the hardship which justifies a variance must not be merely that hardship which results of necessity from a valid zoning regulation; in the requirement that a property be ‘uniquely’ affected in order to justify a variance.”

If the neighborhood in Jenkins was, indeed, changing, as alleged by Greenway, Leadbetter held that “the more appropriate avenue for relief on these facts would be for Greenway to seek a change to the zoning, in which the specific criteria attendant to such a proposal could more properly be addressed.”

Reprinted with permission from the September 15, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit

Alan Nochumson