J. Randazzo v. The Philadelphia Zoning Board of Adjustment ( 2016 )


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  •         IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph Randazzo,                          :
    Appellant       :
    :
    v.                            :   No. 490 C.D. 2016
    :   Submitted: July 22, 2016
    The Philadelphia Zoning Board             :
    of Adjustment                             :
    BEFORE:     HONORABLE ROBERT SIMPSON, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE SIMPSON                          FILED: October 12, 2016
    In this zoning appeal, Joseph Randazzo (Applicant) asks whether the
    Court of Common Pleas of Philadelphia County (trial court) erred in affirming a
    decision of the Philadelphia Zoning Board of Adjustment (ZBA) that denied his
    request for a variance from the maximum height requirement for his proposed
    multi-unit residential building.      The ZBA determined, among other things,
    Applicant did not prove the requisite unnecessary hardship to justify the grant of a
    variance or that the variance sought was the minimum that would afford relief.
    Upon review, we affirm.
    I. Background
    The ZBA made the following findings. In January 2015, Applicant
    applied to the Philadelphia Department of Licenses and Inspections (L&I) for a
    zoning/use registration permit for the consolidation of two lots, the demolition of
    an existing two-story structure and the construction of a six-story, ten unit
    apartment building with eight on-site parking spaces at 746-48 South 16th Street in
    Philadelphia (property). L&I determined, among other things, that the proposed
    structure, at a height of 67 feet 8 inches, exceeded the 38-foot maximum height
    requirement for the Residential Multi-Family-1 (RM-1) zoning district in which
    the property lies. As a result, it issued a notice of refusal. Applicant appealed to
    the ZBA.
    The ZBA held a hearing. At the hearing, Applicant’s counsel noted
    that Applicant operated a contracting business on the property for many years, and
    he now sought to develop the property into a multi-family residential building as
    the area changed and was no longer conducive to his business use.              After
    Applicant’s counsel pointed out that the area contained existing tall structures on
    large lots, the ZBA indicated Applicant also had to show unnecessary hardship.
    Applicant’s counsel responded that his proposed combined lot was unique in how
    it was structured and where it was situated, and, as a result, it deserved to have a
    larger building on it.
    When questioned as to why the proposed structure could not be built
    in compliance with Philadelphia Zoning Code (Code) requirements, Applicant’s
    counsel responded, “when you look at the size of the [combined] lot, how large it
    is, when you compare it with the remaining structures” erecting “a squat building
    next to a taller building, across from a taller building, in the context, it’s out of
    context.” ZBA Hr’g, Notes of Testimony (N.T.), 5/13/15, at 23-24; Reproduced
    Record (R.R.) at 27a-28a.
    2
    Several individuals testified in opposition to Applicant’s variance
    request.   Madeline Shikomba, representing the North of Washington Avenue
    Coalition, a registered community organization in the area, explained that her
    organization opposed Applicant’s project because it did not “want to begin having
    tall buildings in our neighborhood” and would “rather have [Applicant] build by
    right, what he wants to build there, and we [would] have no objection to it.” N.T.
    at 32; R.R. at 36a. Elena Biondi, a neighborhood resident, testified Applicant’s
    proposed building “would be directly behind [her],” would “totally disrupt [her]
    view,” and “[would change] the nature of the neighborhood [she] purchased into.”
    N.T. at 32-33; R.R. at 36a-37a.
    In addition, Ashley Scott, another neighborhood resident, testified she
    did not “agree that there’s a hardship here,” and she believed Applicant “could
    build within the [C]ode and he’s choosing not to ….” N.T. at 34; R.R. at 38a.
    Adrian Popscu, a neighbor who resides at 757 Chadwick Street, the street located
    behind the property, stated he opposed “the height of the building” which had
    “absolutely no consideration for people who have their kitchens and bedrooms and
    living rooms on Chadwick Street.” N.T. at 35; R.R. at 39a. Additionally, Matthew
    Ostrow, another neighborhood resident, testified he and his wife opposed
    Applicant’s building based on the proposed height.
    On the other hand, Linda Whitfield, a neighborhood resident and
    block captain, expressed her support for Applicant’s request. Antionette Davis
    Fisher, a neighborhood resident, testified she did not oppose Applicant’s request.
    3
    Peter Elliott, representing Councilman Kenyatta Johnson’s office,
    indicated “the Councilman’s position is one of [non-opposition].” N.T. at 40; R.R.
    at 44a. Additionally, Paula Burns, representing the City Planning Commission,
    stated her agency had “no objection to the granting of the variance.” N.T. at 45;
    R.R. at 49a.        The ZBA also received a letter from the South of South
    Neighborhood Association (SOSNA), which described Applicant’s “meetings with
    the community,” and stated SOSNA “respectfully defer[red] to the ZBA on this
    application since the [zoning] committee was mostly in favor of the project while
    the community votes were nearly evenly split.” See SOSNA Letter to ZBA,
    5/8/15, at 1, 3; R.R. at 113a, 115a (emphasis deleted) (footnote omitted).
    Based on these findings, the ZBA made the following conclusions of
    law. The maximum building height permitted in the RM-1 district is 38 feet, while
    Applicant proposed to construct a building that would be 67 feet, 8 inches tall.1
    Thus, Applicant’s proposal required a dimensional variance.                         To establish
    entitlement to a variance, an applicant must show: unnecessary hardship resulting
    from the property’s unique physical conditions; such hardship is not self-imposed;
    granting the variance would not adversely affect the public health, safety or
    welfare; and, the variance sought is the minimum necessary to afford relief.
    Alpine, Inc. v. Abington Twp. Zoning Hearing Bd., 
    654 A.2d 186
     (Pa. Cmwlth.
    1995).     Mere economic hardship will not satisfy the “unnecessary hardship”
    1
    At the hearing, Applicant indicated that, after his meeting with SOSNA, he agreed to
    modify his original proposal to decrease the height of the proposed building from 67 feet, 8
    inches to 56 feet, reduce the building size to five stories and construct 7 units, instead of 10, as
    originally proposed. Applicant also agreed to reduce the front façade of the building to 35 feet at
    16th Street.
    4
    requirement; a variance should not be granted merely because it would enable a
    more profitable use of the property. See, e.g., Teazers, Inc. v. Zoning Bd. of
    Adjustment of City of Phila., 
    682 A.2d 856
     (Pa. Cmwlth. 1996).
    The ZBA determined Applicant did not satisfy the criteria for the
    grant of a variance. More particularly, the ZBA determined Applicant did not
    show that denial of the requested variance would result in unnecessary hardship, as
    defined by relevant Code provision and applicable case law. The ZBA further
    determined Applicant did not identify any unique physical characteristic of the
    property that would prevent its development in compliance with the RM-1
    district’s dimensional requirements.
    In addition, the ZBA stated, Applicant’s argument that a taller
    building would be contextual and should be permitted based on the size of the lot
    did not amount to a showing of hardship. The ZBA stated this is particularly true
    given that the lot’s large size was caused, at least in part, by Applicant’s proposed
    consolidation of two smaller lots. While the absence of evidence establishing
    hardship was, by itself, sufficient to warrant denial of the variance, the record
    lacked evidence that the proposed use met all remaining variance criteria. To that
    end, Applicant did not present evidence establishing the variance requested was the
    minimum necessary to afford relief or the proposed use would not have a
    detrimental impact on public health, safety or welfare. For these reasons, the ZBA
    denied Applicant’s variance request. Applicant appealed to the trial court.
    5
    Without taking additional evidence, the trial court affirmed.                 It
    determined the ZBA properly denied Applicant’s variance request where Applicant
    did not satisfy the necessary criteria to obtain a variance. The trial court stated,
    among other things, the ZBA properly determined Applicant did not prove the
    requisite hardship or that the variance sought was the minimum that would afford
    relief. Applicant sought reconsideration of the trial court’s order, which was
    denied. This appeal by Applicant followed.
    II. Issues
    On appeal,2 Applicant states two issues. First, Applicant argues the
    ZBA committed legal and factual errors where it applied use variance standards
    despite acknowledging Applicant sought a dimensional variance, and it refused to
    apply the multi-factor dimensional variance standard established by the
    Pennsylvania Supreme Court and the Code. Additionally, Applicant asserts, the
    ZBA erred in failing to apply the dimensional variance standard to Applicant’s
    modified proposal, which, among other things, eliminated a sixth floor, reduced the
    maximum building height to 56 feet, and reduced the height of the 16th Street front
    façade to 35 feet.       Applicant further contends the ZBA ignored undisputed
    evidence concerning the context of the surrounding area, which includes two 130-
    2
    Because the parties presented no additional evidence after the ZBA’s decision, our
    review is limited to determining whether the ZBA committed an abuse of discretion or an error
    of law. Society Hill Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 
    42 A.3d 1178
     (Pa. Cmwlth.
    2012).
    6
    foot residential towers, an adjacent 50-foot church and other tall and large
    buildings.3
    III. Discussion
    As fact-finder, the ZBA is the sole judge of the credibility and weight
    of the evidence presented. Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing
    Bd., 
    83 A.3d 488
     (Pa. Cmwlth.), appeal denied, 
    101 A.3d 788
     (Pa. 2014). As a
    result, the ZBA is free to reject even uncontradicted evidence that it finds lacking
    in credibility.    
    Id.
       Our review of the ZBA’s factual findings is limited to
    determining whether the ZBA’s findings are supported by substantial evidence. 
    Id.
    Substantial evidence is such relevant evidence as a reasonable person
    might accept as adequate to support a conclusion. Oasis v. Zoning Hearing Bd. of
    S. Annville Twp., 
    94 A.3d 457
     (Pa. Cmwlth. 2014).                    When performing a
    substantial evidence analysis, courts must view the evidence in the light most
    favorable to the party who prevailed before the fact-finder. In re McGlynn, 
    974 A.2d 525
     (Pa. Cmwlth. 2009). It is irrelevant whether the record contains evidence
    to support findings other than those made by the fact finder; the critical inquiry is
    whether there is evidence to support the findings actually made. Keslosky v. Old
    Forge Civil Serv. Comm’n, 
    73 A.3d 665
     (Pa. Cmwlth. 2013). If there is, an
    appellate court may not disturb the findings. 
    Id.
    3
    No party filed a brief in opposition to Applicant’s appeal. Further, the City of
    Philadelphia indicated it took no position on Applicant’s appeal, and, therefore, it would not
    participate in this appeal.
    7
    A. Contentions
    Applicant first asserts the ZBA erred in acknowledging that the appeal
    involved only a limited height dimensional variance, but thereafter purported to
    apply use variance standards, and also applied standards that were not applicable to
    any variance requests. In so doing, Applicant contends, the ZBA violated its
    obligations under Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh,
    
    721 A.2d 43
     (Pa. 1998), and the Code provision that applies to dimensional
    variances.
    Applicant further argues the ZBA based its decision on serious factual
    errors, including failing to apply the dimensional standard to the modified building
    height of 56 feet, assuming the original 67-foot, 8 inch, six-floor abandoned plan
    was at issue. Applicant maintains the ZBA also refused to consider the context of
    the neighborhood with its many tall and large buildings, including the 50-foot
    adjacent church, the tall three-story adjacent buildings, the two 130-foot tall multi-
    unit residential buildings and other large buildings, as well as the benefit of
    bringing the property into compliance with RM-1 district use regulations, and
    avoidance of burdening the community by reducing parking issues and not pushing
    development to the allowable limit.
    B. Analysis
    A dimensional variance involves a request to adjust zoning
    regulations to use the property in a manner consistent with regulations, whereas a
    use variance involves a request to use property in a manner that is wholly outside
    zoning regulations. Hertzberg. The same criteria apply to use and dimensional
    variances. 
    Id.
     However, in Hertzberg, our Supreme Court set forth a more relaxed
    8
    standard for establishing unnecessary hardship for a dimensional variance, as
    opposed to a use variance.
    Under Hertzberg, courts may consider multiple factors in determining
    whether an applicant established unnecessary hardship for a dimensional variance.
    These factors include: “the economic detriment to the applicant if the variance was
    denied, the financial hardship created by any work necessary to bring the building
    into strict compliance with the zoning requirements and the characteristics of the
    surrounding neighborhood.” Id. at 50.
    Although Hertzberg eased the requirements, it did not remove them.
    Tri-County. An applicant must still present evidence as to each of the conditions
    set forth in the zoning ordinance, including unnecessary hardship. Id.
    Where no hardship is shown, or where the asserted hardship amounts
    to a landowner’s desire to increase profitability or maximize development
    potential, the unnecessary hardship criterion required to obtain a variance is not
    satisfied even under the relaxed standard set forth in Hertzberg. Id. To that end, as
    we explained in Society Created to Reduce Urban Blight v. Zoning Board of
    Adjustment, 
    771 A.2d 874
    , 878 (Pa. Cmwlth. 2001):
    [W]hile Hertzberg eased the requirements for granting a
    variance for dimensional requirements, it did not make
    dimensional requirements … ‘free-fire zones’ for which
    variances could be granted when the party seeking the variance
    merely articulated a reason that it would be financially ‘hurt’ if
    it could not do what it wanted to do with the property, even if
    the property was already being occupied by another use. If that
    were the case, dimensional requirements would be meaningless-
    9
    at best, rules of thumb-and the planning efforts that local
    governments go through in setting them to have light, area (side
    yards) and density (area) buffers would be a waste of time. …
    See also Singer v. Phila. Zoning Bd. of Adjustment, 
    29 A.3d 144
    , 150 (Pa.
    Cmwlth. 2011) (“[I]n order to establish unnecessary hardship for a dimensional
    variance an applicant must demonstrate something more than a mere desire to
    develop a property as it wishes or that it will be financially burdened if the
    variance is not granted.”) (emphasis added).
    Here, the Code establishes the following standards to obtain a
    variance (with emphasis added):
    (e) Criteria for Approval.
    The [ZBA] shall grant a variance only if it determines that the
    applicant has demonstrated that the criteria of this § 14-
    303(8)(e) (Criteria for Approval) have been met …. Otherwise,
    the [ZBA] shall deny the variance.
    (.1) General Criteria.
    … The [ZBA] shall grant a variance only if it finds each
    of the following criteria are satisfied:
    (.a) The denial of the variance would result in an
    unnecessary hardship. The applicant shall demonstrate
    that the unnecessary hardship was not created by the
    applicant and that the criteria set forth in § 14-
    303(8)(e)(.2) (Use Variances) below, in the case of use
    variances, or the criteria set forth in § 14-303(8)(e)(.3)
    (Dimensional Variances) below, in the case of
    dimensional variances, have been satisfied;
    (.b) The variance, whether use or dimensional, if
    authorized will represent the minimum variance that will
    10
    afford relief and will represent the least modification
    possible of the use or dimensional regulation in issue;
    (.c) The grant of the variance will be in harmony with
    the purpose and spirit of this [Code];
    (.d) The grant of the variance will not substantially
    increase congestion in the public streets, increase the
    danger of fire, or otherwise endanger the public health,
    safety, or general welfare;
    (.e) The variance will not substantially or permanently
    injure the appropriate use of adjacent conforming
    property or impair an adequate supply of light and air to
    adjacent conforming property;
    (.f) The grant of the variance will not adversely affect
    transportation or unduly burden water, sewer, school,
    park, or other public facilities;
    (.g) The grant of the variance will not adversely and
    substantially affect the implementation of any adopted
    plan for the area where the property is located; and
    (.h) The grant of the variance will not create any
    significant environmental damage, pollution, erosion, or
    siltation, and will not significantly increase the danger of
    flooding either during or after construction, and the
    applicant will take measures to minimize environmental
    damage during any construction.
    ****
    (.3) Dimensional Variances.
    To find an unnecessary hardship in the case of a dimensional
    variance, the [ZBA] may consider the economic detriment to
    the applicant if the variance is denied, the financial burden
    created by any work necessary to bring the building into strict
    11
    compliance with the zoning requirements and the characteristics
    of the surrounding neighborhood.
    Section 14-303(8)(e)(.1), (.3).
    With regard to the criteria necessary to obtain the requested variance,
    the ZBA here made the following relevant determinations (with emphasis added):
    6.     To establish entitlement to a variance, an applicant must
    show an unnecessary hardship resulting from the
    property’s unique physical conditions or circumstances
    ….
    7.     Mere economic hardship will not satisfy the ‘unnecessary
    hardship’ requirement and a variance should not be
    granted merely because it would permit a more profitable
    use of the property. See, e.g., [Teazers].
    8.     On this record, Applicant has not demonstrated that the
    criteria for grant of a variance are met.
    9.     Applicant has not shown that denial of the requested
    [variance] will result in unnecessary hardship, as defined
    by the relevant Code provisions and applicable case law.
    Code Sections 14-303(8)(e)(.1).
    10.    Applicant has not identified any unique physical
    characteristic or circumstance of the [p]roperty that
    would prevent its development in compliance with RM-1
    dimensional requirements.
    11.    Applicant’s argument that a taller building would be
    contextual and should be permitted due to the size of the
    lot does not amount to a showing of hardship. This is
    particularly so given that the [property’s] large size is
    due, at least in part, from the proposed consolidation of
    two smaller lots.
    12.    While the absence of evidence establishing hardship is, in
    itself, sufficient to require denial of a variance, the record
    12
    is also devoid of evidence establishing that the proposed
    use meets all remaining criteria for grant of a variance.
    13.    Applicant has not presented evidence establishing that
    the variance requested is the least necessary to afford
    relief or that the proposed use will not have a detrimental
    impact upon the public health, safety or welfare.
    ZBA Op., 5/15/15, Concls. of Law Nos. 6-13.
    As Applicant correctly notes, the ZBA did not expressly reference the
    hardship standard that applies to dimensional variances and did not mention
    Applicant’s modifications to its proposal which would, among other things,
    decrease the height of the proposed building to 56 feet, decrease the number of
    residential units in the building and lower the building by one story. However, in
    its decision, the ZBA expressly acknowledged that Applicant sought a dimensional
    variance. Concl. of Law No. 1. Moreover, we discern no error in the ZBA’s
    ultimate determination that Applicant did not satisfy the criteria necessary to obtain
    the requested variance here, which would permit a deviation from the Code’s 38-
    foot maximum height requirement for the RM-1 district (a deviation of 18 feet
    based on Applicant’s modified proposal of 56 feet).4
    In particular, as to the unnecessary hardship criterion, before the ZBA,
    Applicant’s counsel focused on the fact that several large lots near the property are
    4
    Because no party filed a brief in opposition to Applicant’s appeal here, there is no
    argument regarding Applicant’s ability to modify its proposal before the ZBA after filing an
    appeal from a refusal by L&I. However, in light of the fact that Applicant’s modified proposal
    seeks to deviate from the RM-1 district’s maximum height requirement by 18 feet (as opposed to
    the originally proposed 29-foot deviation), we need not address the issue of whether Applicant
    may modify its proposal under these circumstances because, as discussed below, the ZBA
    properly determined Applicant did not satisfy the requisite criteria to obtain a variance here.
    13
    improved with tall structures, including an adjacent, 50-foot tall church.
    Applicant’s    counsel     also   asserted    the   property    was    irregularly-shaped.
    Additionally, Applicant’s counsel noted, although the Code allowed a maximum of
    12 units, Applicant only proposed 7 units.
    Further, the following exchange occurred between Applicant and a
    ZBA Board Member (with emphasis added):
    [ZBA Board Member]:            Can you lower [the height of the
    proposed building]?
    [Applicant]: It’s really feasibility. If we lower another floor,
    then you’re going to have three apartment units and a single
    family, which to spend the amount of money there --
    [ZBA Board Member]: I’m not asking about money.
    [Applicant]: Well, I mean, it’s the feasibility. That’s the only
    hardship. I don’t want to do 12 units there. I’m trying to do a
    limited amount of units but also to make the project work. And
    we reduced the amount of units from ten originally down to
    seven, and I don’t see it working any other way.
    N.T. at 29-30; R.R. at 33a-34a.
    Contrary to Applicant’s assertions, we do not believe the scant
    evidence he presented before the ZBA5 is sufficient to satisfy the unnecessary
    hardship criterion, even under the relaxed Hertzberg standard.               To that end,
    5
    “Statements by a person’s attorney on his or her behalf shall not be considered as
    testimony, except where agreed upon by the parties.” Section 14-303(14)(f) of the Code. Our
    review of the transcript of the hearing before the ZBA here reveals no agreement that
    Applicant’s counsel’s statements could be considered testimony. Therefore, we do not consider
    those statements testimony.
    14
    Applicant’s testimony amounts to little more than his desire to construct a multi-
    unit residential building at a height he believes is necessary to make the project
    feasible. However, the ZBA did not credit Applicant’s testimony regarding what
    he deemed necessary for the project to be feasible. As a result, Applicant did not
    persuade the ZBA that he could not construct a multi-family residential building in
    compliance with the Code’s maximum height requirement of 38 feet in the RM-1
    district. This is not surprising given Applicant’s meager proof on this issue. In
    essence, Applicant proved little more than that adherence to the maximum height
    requirement imposes a burden on his personal desire to construct a multi-family
    residential building at his chosen height. This is not sufficient to establish hardship
    even under the relaxed Hertzberg standard.
    Indeed, as this Court previously stated:
    Ever since our Supreme Court decided Hertzberg, we
    have seen a pattern of cases arguing that a variance must be
    granted from a dimensional requirement that prevents or
    financially burdens a property owner’s ability to employ his
    property exactly as he wishes, so long as the use itself is
    permitted. Hertzberg stands for nothing of the kind. Hertzberg
    articulated the principle that unreasonable economic burden
    may be considered in determining the presence of unnecessary
    hardship. … A variance, whether labeled dimensional or use, is
    appropriate “only where the property, not the person, is subject
    to hardship.” Szmigiel v. Kranker, 
    298 A.2d 629
    , 631 (Pa.
    Cmwlth. 1972) (emphasis in original).
    Yeager v. Zoning Hearing Bd. of City of Allentown, 
    779 A.2d 595
    , 598 (Pa.
    Cmwlth. 2001) (rejecting applicant’s request for dimensional variances from
    ordinance’s setback and clear sight triangle requirements where only hardship
    15
    amounted to applicant’s desire to construct a building for its new car dealership
    that complied with specifications required by vehicle manufacturer).
    Further, contrary to Applicant’s assertions, our analysis of the
    Hertzberg factors does not yield a different result. Specifically, while Applicant
    focuses on the characteristics of the surrounding neighborhood, which is one factor
    that may be considered in evaluating a dimensional variance request, he does not
    persuasively address the remaining Hertzberg factors. To that end, we must also
    consider the economic detriment to the applicant if the variance is denied and the
    financial hardship created by any work necessary to bring the building into strict
    compliance with the zoning requirements. Section 14-303(8)(e)(3) of the Code;
    Hertzberg.
    Here, Applicant asserted the context of the surrounding community,
    i.e., the height of some nearby buildings, made the grant of a dimensional variance
    to exceed the height requirement appropriate. However, he presented no credible
    evidence as to the economic detriment that would result from denial of the
    requested variance, nor did he present any evidence of the financial hardship
    created by the work necessary to bring the building into compliance with the
    Code’s 38-foot maximum height requirement.           Indeed, Applicant’s existing
    building is 28 feet in height. R.R. at 1a. Thus, Applicant did not satisfy the
    unnecessary hardship criterion even under the relaxed Hertzberg standard.
    In addition, based on our review of the record, we agree with the ZBA
    that Applicant did not prove the variance, if authorized, would represent the
    16
    minimum variance that would afford relief and the least modification possible of
    the dimensional regulation at issue. See Concl. of Law No. 13. Indeed, in his brief
    to this Court, Applicant does not assert otherwise.6 Further, Applicant offers no
    response to the ZBA’s determination that he did not prove that his proposed use
    would not have a detrimental impact on public health, safety or welfare. 
    Id.
    IV. Conclusion
    For these reasons, we affirm the order of the trial court, which
    affirmed the ZBA’s decision denying Applicant’s request for a variance from the
    38-foot maximum height requirement in the RM-1 zoning district.
    ROBERT SIMPSON, Judge
    6
    As Applicant correctly points out, at the ZBA hearing, one ZBA Board Member stated:
    “You have to also show a hardship. You have to show why you’re surrounded by such giant
    buildings that your land is useless if [the building is not] extra tall. …” N.T. at 15; R.R. at 19a
    (emphasis added). This was an inaccurate statement of the law. See Marshall v. City of Phila.,
    
    97 A.3d 323
    , 330 (Pa. 2014) (“This Court has repeatedly made clear that in establishing
    hardship, an applicant for a variance is not required to show that the property at issue is valueless
    without the variance or that the property cannot be used for any permitted purpose.”).
    Nevertheless, the ZBA did not reference or apply this erroneous standard in its written decision.
    As such, this inaccurate statement, made only at the hearing, does not constitute a basis for
    reversal of the ZBA’s decision.
    In addition, citing Marshall and O’Neill v. Philadelphia Zoning Board of Adjustment,
    
    120 A.2d 901
     (Pa. 1956), Applicant asserts the ZBA overlooked the fact that his proposed
    change in use would result in a change from a non-conforming business use to a conforming
    residential use, a factor that weighs in favor of granting a variance. While Applicant is correct
    that the ZBA did not mention this point in its decision, he offers no assertion that this would
    somehow alleviate his burden of proving the requisite criteria to obtain the variance, including
    unnecessary hardship and that the variance sought is the minimum that would afford relief.
    17
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph Randazzo,                     :
    Appellant     :
    :
    v.                        :   No. 490 C.D. 2016
    :
    The Philadelphia Zoning Board        :
    of Adjustment                        :
    ORDER
    AND NOW, this 12th day of October, 2016, the order of the Court of
    Common Pleas of Philadelphia County is AFFIRMED.
    ROBERT SIMPSON, Judge