In zoning and land use cases, matters involving a request for a use variance are often viewed as being the most difficult cases in which to obtain an approval. However, the Supreme Court of Pennsylvania has recently rendered a decision which may provide a new opportunity for properties undergoing redevelopment and requesting a use variance.
In the case of Gloria Marshall v. City of Philadelphia and Zoning Board of Adjustment, the Archdiocese of Philadelphia proposed to convert a former elementary school building into a 63-unit, one-bedroom apartment complex for low income senior citizens. The elementary school was operated by the Archdiocese at the subject property as a legal non-conforming use until the school was closed in 2008 due to declining enrollment and insufficient revenue. In 2009, the Archdiocese received a federal grant of approximately $11 million from the United States Department of Housing and Urban Development to convert the former school to the proposed senior housing.
In an attempt to proceed with its proposed development, the Archdiocese filed an appeal to the City of Philadelphia Zoning Board of Adjustment for a use variance and for dimensional variances. Before the Zoning Board of Adjustment, the Archdiocese presented testimony establishing that the project constituted an adaptable re-use of the property, that the project had wide community support, and that there was a need for low income senior housing in the area.
At the time of the hearing, there was only one objector, Gloria Marshall. Marshall argued that the Archdiocese failed to show any hardship as required for the grant of a variance and that the Archdiocese was itself creating any hardship by closing down the subject building. Marshall also argued that parking was a problem in the area and that "people" were opposed to Section 8 housing on the block.
Prior to the vote by the Zoning Board of Adjustment, the co-chairperson of the Board, reviewed some of the other uses permitted within the applicable zoning district and concluded that the other permitted uses would provide more parking and traffic congestion in the neighborhood than the proposed apartment building use. The Zoning Board of Adjustment unanimously voted to approve of the use variance and concluded that the Archdiocese proved the "unique nature" of the property and that the community overwhelmingly supported the project.
Following the decision of the Zoning Board of Adjustment, Marshall filed an appeal to the Court of Common Pleas. Based upon the record before it, the Court of Common Pleas affirmed the decision the Zoning Board of Adjustment. Thereafter, Marshall appealed to the Commonwealth Court arguing that the Archdiocese failed to prove any hardship required for the grant of a variance and failed to prove that parking was sufficient for the development.
Upon its review of the record before it, the Commonwealth Court reversed the decision of the Court of Common Pleas. The Commonwealth Court concluded that the Archdiocese failed to address how the physical characteristics of the subject property prevented the owner from using the property for any one of the other permitted uses in the zoning district. The Court held that the Zoning Board of Adjustment improperly found that a unique hardship existed for the grant of a variance, and the Court held that the grant of a variance was not based upon substantial evidence.
Thereafter, the Archdiocese filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, and the Petition was granted. The issue before the Supreme Court was whether the Commonwealth Court misapplied the applicable standard of review.
In reviewing the record before it and the relevant case law, the Supreme Court stated that an applicant for a use variance is not required to show that a property is valueless without a variance or that a property cannot be used for any permitted purpose. The Court indicated that multiple factors must be taken into account when assessing whether the unnecessary hardship has been established. In the present case, the unnecessary hardship was grounded upon the assertion that the property was non-conforming and could be converted to a conforming use only at prohibitive expense. The Supreme Court held that the Zoning Board of Adjustment acted well within its discretion when concluding that the Archdiocese had established an unnecessary hardship and in granting the use variance to convert the property to low-income senior housing. The Supreme Court concluded that the Commonwealth Court did not rely upon the proper standard for hardship and concluded that the Commonwealth Court erred in substituting its judgment for that of the Zoning Board of Adjustment. The order of the Commonwealth Court was reversed and the order of the Court of Common Pleas affirming the grant of the variance by the Zoning Board of Adjustment was reinstated.
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