A recent opinion issued by the Pennsylvania Commonwealth Court in In re Schell, 2026 Pa. Commw. LEXIS 35 (Pa. Commw. March 19, 2026), clarifies the application of the use variance doctrine under the Philadelphia Zoning Code.
In Schell, the Commonwealth Court ultimately reversed a ruling handed down by the city of Philadelphia’s Zoning Board of Adjustments (ZBA) that granted both use and dimensional variances for a multi-family real estate development project in a RSA-5 zoning district zoned for single-family use.
The property at issue in Schell consisted of three separately assessed lots located at 2409R, 2411R, and 2413‑15R Tulip St. in Philadelphia, all of which are situated within a RSA‑5 zoning district which permits single‑family residential use, the opinion said.
2409R and 2411R Tulip St. are landlocked parcels with smaller dimensions, while 2413‑15R Tulip St. is a larger parcel with street frontage.
The property owner filed a zoning permit application with the city of Philadelphia’s Department of Licenses and Inspections (L&I), seeking to first, consolidate the three lots into one large lot and, second, to erect upon the lot a triplex with three residential dwelling units for multifamily household living, the opinion said.
L&I denied the zoning permit application, explaining that the use did not comply with single-family zoning classification and that the dimensional requirements for rear yard depth and side yard width did not comply with the zoning requirements.
Thereafter, the property owner filed a timely appealed to the ZBA seeking a use variance for multi-family living and multiple dimensional variances under the Philadelphia Zoning Code.
On appeal, the ZBA unanimously voted to grant the requested use and dimensional variances requested by the property owner, the opinion said.
Alyssa Schell and Old Richmond Civic Association, the community organization associated with the properties appealed the ZBA’s ruling to the Philadelphia County Common Pleas Court.
The trial court ultimately affirmed the ZBA’s ruling.
In doing, the trial court noted that it was not its role to substitute the judgment of the ZBA and the ZBA engaged in extensive fact-finding in deciding to grant the requested zoning variances.
This all led to objectors to appeal the trial court’s ruling to the Commonwealth
Before addressing the variance merits, the Commonwealth Court first addressed whether the objectors even had the right to appeal the ZBA’s ruling.
The property owner attempted to thwart the appeal on the grounds that the objectors did not have standing to appeal the ZBA’s ruling. While conceding that Schell lived in close proximity to the properties, as she lived within 500 feet from them, it argued that proximity alone was insufficient for standing and Schell was required to allege particularized harm to establish standing.
The Commonwealth Court disagreed with this argument and relied on Spahn v. Zoning Board of Adjustment, 977 A.2d 1132 (Pa. 2009), which states proximity of the properties may be sufficient to establish an adverse impact sufficient for standing. Therefore, according to the Commonwealth Court, Schell had standing as a matter of law to bring the appeal.
The property owner also argued that the community organization lacked standing on the ground that it neither appeared nor objected before the ZBA. The Commonwealth Court rejected that argument, finding that the community organization’s submission of a written letter in opposition to the requested zoning variances, its participation in pre‑hearing meetings with the property owner and the community at large, and the sworn testimony of one of its members in opposition at the hearing before the ZBA collectively demonstrated sufficient participation to confer standing.
Relying on the holding in Newtown Heights Civic Association v. Zoning Hearing Board, 454 A,2d 1199 (Pa. Commw. 1983), which explained that a community organization gains party status by making an appearance in some manner, the Commonwealth Court found that the community organization in Schell met that standard here.
After finding that the objectors had the required standing to challenge the ZBA’s ruling, the Commonwealth Court moved on to the substantive merits of whether the property owner met the standards for a use variance.
As highlighted by the Commonwealth Court, under Pennsylvania law, use variances are typically subject to a more demanding standard than dimensional variances. To obtain a use variance, an applicant must demonstrate a hardship that is unique to the property itself, establish that granting the requested relief will not adversely affect the public health, safety, or general welfare, and show that the relief sought represents the minimum necessary to address the hardship.
Under Section 14-303(8)(b) of the Philadelphia Zoning Code, “the variance, whether use or dimensional, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue.”
In Schell, although the ZBA concluded that these standards were met, the Commonwealth Court disagreed.
On appeal, the property owner advanced several theories in support of granting a use variance that would permit construction of a triplex on the consolidated parcels. First, the property owner emphasized that the lots had remained vacant for approximately 30 years and argued that the ability to develop the proposed consolidated property would be preferable to continued vacancy. The property owner further noted that a prior effort to develop the parcels as two, three‑story buildings accommodating four families had been unsuccessful and contended that the proposed triplex represented a more suitable alternative use of the site.
The property owner’s second theory was that developing the parcels individually with single‑family homes would require numerous dimensional variances and easements for each lot. On that basis, the property owner argued that granting a single use variance for development of the consolidated parcel would reduce the overall need for additional zoning relief and represent a more efficient regulatory outcome.
The property owner’s final theory was that development of the consolidated lot with a by‑right single‑family residence would be out of character with the surrounding neighborhood. The property owner emphasized that a single‑family structure permitted by right could encompass approximately 7,500 square feet, five to six times larger than nearby homes, resulting in what was described as a “white elephant” that would visually dominate the block.
In support of this position, the property owner’s architect testified that, although a single‑family home could be constructed on the site under the Philadelphia Zoning Code, the requested use variance would allow the property owner to avoid building an overly large residence that would be inconsistent with the scale and character of the surrounding community.
The City of Philadelphia’s Planning Commission agreed that the shape of the then existing lots created a hardship requiring dimensional variances but argued that the property owner had not shown that the size and shape of these lots prevented them from constructing a compliant single-family home.
Ultimately, the ZBA found that a hardship existed due to the lot size and shape. Additionally, the ZBA found that the requested variance was the minimum necessary relief based on the identified hardship. The Commonwealth Court found these conclusions were made in error.
In its testimony, the property owner conceded that a single-family home could be built, by-right, after consolidating the lots. The Commonwealth Court concluded that the desire to use the property differently than what is allowed does not create a hardship. Additionally, the Commonwealth Court noted that a use variance is improper where the zoning classification allows for a reasonable permitted use, as here, a single-family home was possible and reasonable.
The Commonwealth Court also emphasized that the neighborhood character cannot justify avoiding a by-right use. The character of the neighborhood is only relevant when you are considering variances, not permitted use. Here, there was a permitted use so the Commonwealth Court did not find the argument that a single-family home on the consolidated lot would be out of character as a compelling argument. Therefore, the “white element” argument was deemed irrelevant, according to the Commonwealth Court.
As a result of the use variance failing, the Commonwealth Court stated that the dimensional variance could not survive. The court acknowledged that the dimensional variances requested were dependent on multifamily use. Without an entitlement to the use variance, the Commonwealth Court reasoned the need to determine that dimensional variances dissipated.
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This article was prepared by a licensed Pennsylvania attorney at Nochumson P.C., a Philadelphia-based law firm with extensive experience in all thing's real estate, litigation, land use and zoning, and business counseling.
Michael Howard, a second-year law student at the Drexel University Thomas R. Kline School of Law, contributed to the writing of this article
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