A. and E. Plaxton v. Zoning Board of Adjustment and 1903 Spring Garden Associates, LP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Arthur and Elke Plaxton, :
Appellants :
:
v. :
:
Zoning Board of Adjustment, and : No. 727 C.D. 2015
1903 Spring Garden Associates, LP : Submitted: December 11, 2015
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: June 13, 2016
Arthur Plaxton (Mr. Plaxton) and Elke Plaxton (Mrs. Plaxton), husband
and wife (collectively, Objectors), pro se, appeal from the Philadelphia County
Common Pleas Court’s (trial court) March 30, 2015 order affirming the Philadelphia
Zoning Board of Adjustment’s (ZBA) order granting variances for 1903 Spring
Garden Associates, L.P.’s (Applicant) proposed multi-family dwelling with
accessory, open-air parking. Objectors raise three1 issues for this Court’s review: (1)
whether the trial court erred when it affirmed the ZBA’s determination that the
proposed parking was permitted as of right; (2) whether the trial court’s decision
which affirmed the ZBA’s grant of a variance was in violation of the Philadelphia
Zoning Code’s (Code)2 curb cut, landscaping and rear yard parking requirements
because Applicant did not demonstrate unnecessary hardship or meet its burden of
proof; and, (3) whether the trial court committed an error of law when it affirmed the
1
In their brief, Objectors list four statements of questions involved. The issues raised in the
four questions are encompassed in the Court’s restatement of the issues.
2
This Court’s references to the Code pertain to the version of the Code in effect at the time
the ZBA rendered its decision in this matter.
ZBA’s grant of a variance because the approved plan would result in violations of
law.3 After review, we reverse and remand.
Applicant purchased the property at 1903 Spring Garden Street,
Philadelphia (the Property) in August 2013 from the Archdiocese of Philadelphia.
The Property is a mid-block lot, located in a Residential Multi-Family-1 (RM-1)
District, and consists of a 3,225 square foot attached structure formerly used as a
church. The Property is bounded by Spring Garden Street in the front, and Monterey
Street, a small street identified in Applicant’s site plan as approximately 6 feet, 8
inches wide, in the rear. On November 21, 2013, Applicant applied to the
Philadelphia Department of Licenses and Inspections (Department) for a zoning/use
registration permit for the proposed conversion of a 3-story chapel and rectory into 7
new apartments with 4 rear parking spaces. Applicant’s proposed alterations include
demolishing a previously-constructed rear addition which would reduce the
3
Our review in a zoning case, where the trial court has taken no
additional evidence, ‘is limited to determining whether the [ZBA]
committed a manifest abuse of discretion or an error of law.’ Valley
View Civic Ass[’n] v. Zoning B[d.] of Adjustment, . . . 462 A.2d 637,
639 ([Pa.] 1983). The ZBA will be found to have ‘abused its
discretion only if its findings are not supported by substantial
evidence[,] . . . mean[ing] such relevant evidence [that] a reasonable
mind might accept as adequate to support a conclusion.’ Id. at 640.
Callowhill Neighborhood Ass’n v. City of Phila. Zoning Bd. of Adjustment, 118 A.3d 1214, 1221
n.13 (Pa. Cmwlth. 2015) (emphasis added). Objectors challenge whether the trial court erred when
it affirmed the ZBA’s decision. Since the trial court took no new evidence, it is the ZBA’s
“decision, not the [trial] court’s [decision], we must review.” City of Phila. v. Angelone, 280 A.2d
672, 676 (Pa. Cmwlth. 1971); see also In re Appeal of Brickstone Realty Corp., 789 A.2d 333, 338
n.2 (Pa. Cmwlth. 2001) (“Our standard of review . . . pertains to whether the [zoning board], not the
trial court, erred or abused its discretion.”).
Although Objectors’ Statements of the Questions Involved pertain to whether the trial court
erred by affirming the ZBA, it is clear from Objectors’ arguments that Objectors challenge both the
trial court’s and the ZBA’s decisions. Accordingly, we will address Objectors’ issues only as they
relate to the ZBA’s decision and we will not respond to challenges to the trial court’s decision for
the reasons set forth above.
2
Property’s occupied area from 93.8% to 72%. The proposed rear parking would be
located in the area currently occupied by the rear addition and would be accessible
from Monterey Street through a curb cut that is 30 feet wide.
On December 17, 2013, the Department refused to issue the permit,
stating that a special exception was required for the proposed parking, and that the
proposal did not comply with relevant Code requirements in that: (1) the proposed
parking spaces were too small; (2) the City Planning Commission denied necessary
approval of the parking area landscaping; (3) Applicant failed to propose required
landscaping along the perimeter of the parking area; and, (4) the proposed open area
did not meet the minimum percentage requirements.
On January 14, 2014, Applicant appealed from the Department’s refusal
to the ZBA, contending that: (1) no special exception is required because the
proposed parking is permitted by right; (2) no variance was required because
Applicant increased the size of the proposed spaces to meet Code requirements; (3)
the proposed open area was sufficient since it exceeded the currently-existing on-site
conditions, and the difference between the proposed and required open areas was de
minimis; and, (4) Applicant’s inability to comply with the landscaping requirements
due to the limited space justified a variance.4
4
Section 14-803(4)(a)(.5) of the Code requires:
Along any street frontage, a surface parking lot shall have no more
than one curb cut for both ingress and egress, the maximum width of
which shall not exceed 24 ft., or two one-way curb cuts the maximum
width of which shall not exceed 12 ft., provided that the curb cuts
shall not occupy more than 50% of the street frontage.
Section 14-803(5)(d)(.1) of the Code provides:
Where any surface parking lot is located along a street frontage, a
landscaped area shall be installed along the entire length of the
perimeter of the surface parking lot that is located along a street
frontage to screen the view of the parking area from the street.
3
The ZBA held a hearing on February 26, 2014, at which Applicant’s
counsel addressed the issues and presented revised plans which proposed larger
parking spaces. Applicant’s counsel also submitted photos depicting cars currently
parked behind other homes along Monterey Street. Representatives of the Spring
Garden Civic Association (SGCA) testified in support of Applicant’s appeal. In
addition, a City Planning Commission representative testified that her agency had no
objection to granting the landscape variance.
Objectors also appeared at the hearing and testified regarding their
opposition to the proposal. Mr. Plaxton testified that individuals parking cars in the
area designated in the proposed plans will be required to drive onto the sidewalk in
order to enter or exit the parking area. Further, Mr. Plaxton explained that Monterey
Street was not wide enough to accommodate the proposed parking, and that the
proposed parking spaces would require occupants to intrude upon Objectors’ property
to exit the parking area.
At the close of the hearing, the ZBA concluded that no special exception
was required for the parking, and that the parking was permitted as of right. The
ZBA voted to grant a use variance for the landscaping requirement, but limit the
Except as provided in [Section] 14-803(5)(d)(.2) below, the
landscaped area shall be at least equal to the required setback, but in
no case less than five ft. wide.
Section 14-803(5)(d)(.2) of the Code states in relevant part:
Where a five ft. wide perimeter landscape area is not feasible based
on existing site or topography constraints, as an alternative to the tree
and shrub plantings required by [Section] 14-803(5)(d)(.1) [of the
Code] above, a decorative masonry wall or ornamental fence at least
three ft. in height may be installed. The decorative wall or
ornamental fence may be installed on a berm if the combined height
of berm and wall or fence is at least three ft. in height.
4
number of parking spaces to three. In regards to the special exception, the ZBA’s
legal conclusions included the following:
1. The [ZBA] concludes that [the Department] erred in
requiring a special exception for the proposed accessory
parking and in refusing the proposal for failing to provide
sufficient open area. Applicant is therefore required only to
establish that its proposal meets the criteria for grant of a
variance with respect to the landscaping requirement.[]
2. In issuing a referral for the proposed parking, [the
Department] relied on Code Section 14-803(1)(c), which
provides that special exception approval shall be required
for off[-]street parking spaces for any single or multi-family
use in an attached building. The cited Code section,
however, includes an exception for parking ‘accessed by a
rear street, rear shared driveway, or rear alley.’ [Id.] The
parking proposed by Applicant will be accessed by a rear
street. It therefore falls within the exception and does not
require a special exception.
....
13. The parking proposed by Applicant, because accessed
from a rear street, is permitted by right.
ZBA’s Findings of Fact and Conclusions of Law at 5, 7.
With respect to the landscaping requirement, the ZBA stated:
4. On the issue of landscaping, Code Section 14-803(1)(c),
which applies to all surface parking lots except those
accessory to single[-]family or two[-]family dwellings,
provides:
Where any surface parking lot is located along
a street frontage, a landscaped area shall be
installed along the entire length of the
perimeter of the surface parking lot that is
located along a street frontage to screen the
view of the parking area from the street.[]
[Id.]
5
5. No landscaping is proposed along the proposed parking
lot’s Monterey Street frontage. Applicant’s proposal
accordingly requires a variance.
6. Pursuant to Code Section 14-103(4)(a)(.3), the [ZBA]
‘may, after public notice and public hearing . . . authorize
variances from the terms of this [] Code.’ [Id.]
7. In order to grant a variance, the [ZBA] must determine
that each of the following criteria set forth at Code Section
14-303(8)(e)(.1) are met. . . .
....
12. The [ZBA] concludes that Applicant’s proposal meets
the requirements for grant of a variance.
....
14. Accessing the permitted parking would not . . . be
possible if Applicant were required to install landscaping
along the Property’s entire Monterey Street street frontage.
15. The [ZBA] concludes that a number of factors,
including the Property’s midblock location, the narrowness
of the street from which parking spaces will be accessed,
the limited lot area available for parking, and the width of
the required curb cut are physical circumstances sufficient
to support a finding of hardship.
16. The project also meets the remaining requirements for
grant of a variance. The proposed accessory parking is
permitted by right and the proposed parking spaces exceed
the minimum size required by [the] Code. Applicant seeks
relief only from the landscaping requirement, which cannot
be satisfied without blocking access to the proposed parking
spaces. The requested variance is, therefore, the least
necessary to afford relief.
17. The evidence of record additionally supports a finding
that the development will not detrimentally impact the
public health, safety or welfare. The project is in an area
with a high demand for parking and an insufficient number
of available on street spaces. By providing accessory, off
6
street spaces, Applicant will offset the impact of adding
seven new residential units to the neighborhood.
ZBA’s Findings of Fact and Conclusions of Law at 6-8 (emphasis added).
By March 21, 2014 letter, Objectors filed a reconsideration request
(Reconsideration Request), explaining:
At the time of the hearings, it was reasonable for
[Objectors] to assume that the professional personnel at the
[Department] had correctly stated all reasons for a zoning
refusal and to assume that if [the Department] had made an
incomplete determination, the experienced members of the
[ZBA] would have a thorough understanding of the [Code]
such that they would detect that.
Unfortunately, these assumptions were incorrect, and
resulted in special circumstances that could not reasonably
have been known by us at the time of the hearing.
Reproduced Record (R.R.) at 68a. Objectors asserted that the proposed parking
violated various Code sections, including Section 14-803(1)(b)(.1)(.a) of the Code.
The ZBA denied the Reconsideration Request. Objectors appealed from the ZBA’s
decision to the trial court which affirmed the ZBA’s decision. Objectors appealed to
this Court.
Objectors first contend that the ZBA and the trial court erred when they
determined that no special exception or variance was required for the proposed
parking. We agree.
The ZBA found that a special exception was not required for the
proposed rear parking, and granted the landscaping variance because it concluded that
the proposed rear parking was permitted as of right, and because the mandated
landscaping would block access to that permitted parking.
Section 14-803(1)(a)(.1) of the Code, entitled “Motor Vehicle Parking
Standards[,]” permits accessory parking as “[a] surface parking lot . . . .” Id.
Importantly, however, Section 14-803(1)(b)(.1)(.a)(.ii) of the Code prohibits
7
“[s]urface parking spaces and detached garages and carports . . . in required front,
side, and rear yards.” Id. (emphasis added).5
Section 14-203(370) of the Code defines “[y]ard” as “[a]n unoccupied
area, open and unobstructed from the ground, on the same lot as a building.” Id.
Section 14-203(370)(b) defines “[r]ear [y]ard” as “[a] yard located between the
extreme rear line of any building or structure (not including fences) and the closer of:
1) the extreme rear line of the lot, or 2) the nearest side line of a street, shared
driveway, or alley.” Id. The Zoning Code requires that structures in an RM-1
zoning district, such as the subject Property, comply with dimensional standards.
Section 14-701(1)(a) of the Code states: “All primary and accessory structures must
comply with the dimensional standards in this (§ 14-701).” Id. Table 14-701-2 of the
Code, titled “Dimensional Standards for Higher Density Residential Districts”
provides that properties in an RM-1 District must have a rear yard with a minimum
depth of 9 feet or 20% of the lot depth, and a minimum area of 144 square feet. Id.
5
In holding that the ZBA did not err in finding that the surface parking was a permitted use,
the trial court stated:
[P]er the [Code], Section 14-701(2)(a.1)(.1)(.b) (dimensional
standards, residential district dimensional tables, multi-street frontage
and yard requirements), in RM-1 districts, for a lot fronting on more
than one street, each street frontage shall be considered a front and
when a property is bounded by two streets which are opposite each
other, then the remaining two property lines shall be considered sides
and the side yard requirements of the zoning district shall apply to the
remaining lot lines. The rear yard requirements of the zoning district
shall not apply. In this case, the Property is fronted by both Spring
Garden Street and Monterey Street; consequently the rear yard
requirements are not applicable.
Trial Ct. Op. at 9. Importantly, Section 14-701(2)(a.1)(.1)(.b) of the Code was not enacted until
November 12, 2014, approximately 8 months after the ZBA issued its approval. Although we do
not review the trial court’s decision, we note that it was error for the trial court to rely on Section
14-701(2)(a.1)(.1)(.b) of the Code in affirming the ZBA’s decision when that provision was not in
existence at the time the matter was before the ZBA.
8
Thus, the Code required the Property to have a rear yard and thereby subjected the
Property to the rear yard surface parking prohibition.
The only relevant exception to Section 14-803(1)(b)(.1)(.a)(.ii) of the
Code’s prohibition on surface parking in required front, side and rear yards is
contained in Section 14-803(1)(b)(.1)(.b)(.i) of the Code which permits “[r]esidential
parking . . . in the required rear yard of an attached building where the lot is served
by a rear alley[6] or shared driveway with a minimum width of 12 ft.” Id. (emphasis
added).7 However, the Property is not served by a rear alley or shared driveway, but
6
Alley is defined by Section 14-203(14) of the Code as “[a] common right-of-way shared by
three or more abutting landowners that provides secondary access to lots.” Id.
7
Applicant argues that because Objectors did not make specific legal arguments to the ZBA
that the Code prohibited parking in a required rear yard until Objectors filed their request for
reconsideration to the ZBA, the issue was waived. We disagree. Objectors testified before the ZBA
that given Monterey Street’s narrow width, there was insufficient room for cars to pull out of the
proposed parking areas which would likely result in damage to their property, and that the proposed
parking plan should be rejected. See R.R. at 22a-24a, 28a-30a. Mr. Plaxton testified:
None of the cars can exit or enter the parking lot without going onto
the public sidewalk. . . . [I]n order to get out of the parking lot, they
would have to intrude on our property and come one foot, four inches
away from a brick wall. Now the reason it has to go out – drive out
that far is there is . . . an electric pole just to the right edge of the
property located in the street so that the car that comes out . . . cannot
even begin to turn to the right until it gets basically fully onto
Monterey Street. . . . [B]efore the car can maneuver or do anything
else, it has to come onto our property and be approximately one foot
four inches away from the brick wall.
R.R. at 22a. Further, during the hearing, Monterey Street’s narrow width, its impact on the
proposed parking and the permissibility of rear parking under such circumstances was also the topic
of discussion between Applicant’s counsel and the ZBA members. See R.R. at 36a-37a, 52a. For
example:
[Applicant’s counsel]: [T]his [Code] encourages and wants rear-
loaded parking. The existence of the parking and the number of
parking spaces and the size of the parking spaces, it’s not a refusal
item. The issue is the landscaping screening, and we all agree that
rear-loaded parking is permitted in the RM-1 district. . . .
9
instead is bordered by a street. There is no similar exception for property served by a
street.
Even if we were to interpret the above-quoted exception to apply to
Monterey Street, Applicant’s revised plan clearly reveals that the driving width of
Monterey Street is only 6 feet, 8 inches.8 Thus, the exception found in Section 14-
803(1)(b)(.1)(.b)(.i) of the Code to the general front, side, and rear yard parking
prohibition would not apply because that Code provision has a minimum width
requirement of 12 feet. Accordingly, Applicant’s proposed parking is not permitted
by right, but rather, is prohibited by Section 14-803(1)(b)(.1)(.a) of the Code. The
ZBA erroneously ignored Section 14-803(1)(b)(.1)(.a)(.ii). Instead, the ZBA relied
on Section 14-803(1)(c) of the Code, entitled, “Additional Regulations for . . . RM-1 .
. . Districts[,]” which states:
Notwithstanding the provision of this [Code], accessory
parking in the . . . RM-1 . . . district[] shall comply with the
following:
(.1) . . . off-street parking for any single-family, two-family,
or multi-family use in an attached building or on a lot less
than 20 ft. wide shall require special exception approval,
[ZBA Chairperson] Chapman: I want to see the turning radius without
a car ending up on the sidewalk. Is that achievable?
[Applicant’s counsel]: I do not know. All I can tell you is [the]
Streets Department looks at that and approves this. If this is not
allowed, then all of the rear-loaded parking in the City of Philadelphia
in these neighborhoods is going to be illegal.
R.R. at 34a-35a. These concerns raised by Objectors at the hearing directly implicate the
prohibition in Section 14-803(1)(b)(.1)(.a) of the Code, and the exception in Section 14-
803(1)(b)(.1)(.b)(.1) of the Code, and, thus, the issue was not waived.
8
The sidewalk on the south side of Monterey Street is 6 feet, 10 inches wide. The sidewalk
on the north side is 6 feet, 8 inches wide. See R.R. at 139a. Given that vehicles are prohibited from
driving on the sidewalk, see 75 Pa.C.S. § 3703, we would not include the width of the sidewalk in
our calculation of the width of Monterey Street for purposes of applying Section 14-
803(1)(b)(.1)(.b)(.1).
10
unless the parking is accessed by a rear street, rear shared
driveway, or rear alley.
Id. Although the ZBA properly read the Code to provide that properties where
“parking is accessed by a rear street, rear shared driveway or rear alley” are excluded
from Section 14-803(1)(c)(.1) of the Code’s special exception requirement, the
special exception requirement and the exclusion therefrom contained in Section 14-
803(1)(c)(.1) of the Code is within Section 14-803(1)(c) entitled: “Additional
Regulations . . .” and, by its plain meaning,9 does not supplant the general prohibition
on surface parking in Section 14-803(1)(b)(.1)(.a) of the Code, or the requirement in
Section 14-803(1)(b)(.1)(.b)(.i) of the Code that the relevant exception to that general
prohibition requires a lot to be “served by a rear alley or shared driveway with a
minimum width of 12 ft.” Id. (emphasis added). Therefore, the ZBA incorrectly
concluded that the parking was permitted as of right.
Moreover, the ZHB further erred by granting Applicant a variance from the
landscaping requirement10 based on Applicant’s inability to use the property because
9
Pursuant to the law of statutory construction, any word or phrase, not
otherwise defined, must be construed according to rules of grammar
and according to common and approved usage. 1 Pa.C.S. § 1903.
Courts of Pennsylvania generally use dictionaries as source material
to determine the common and approved usage of terms not defined in
statutes.
Therres v. Zoning Hearing Bd. of the Borough of Rose Valley, 947 A.2d 226, 230 (Pa. Cmwlth.
2008).
10
In its brief to this Court, Applicant repeatedly refers to the variance the ZBA granted as a
dimensional variance, and relies on the case of Hertzberg v. Zoning Board of Adjustment, 721 A.2d
43 (Pa. 1998), to support its argument that the ZBA was permitted to consider a less stringent
standard when granting the variance. In Hertzberg, our Supreme Court differentiated between the
standards to be used when considering dimensional variances and those for use variances. The
Court explained:
A variance applicant must show that unnecessary hardship will result
if a variance is denied and that the proposed use will not be contrary
to the public interest. The issue in this appeal arises from the
application of the first part of the test regarding whether or not
11
it incorrectly concluded that the rear yard parking was a permitted use. Accordingly,
we reverse the trial court’s decision, and remand the matter to the trial court with the
direction to remand this action to the ZBA to determine whether a variance should be
granted to permit the proposed parking and, if so, whether a variance should be
granted from the landscaping requirements.11
unnecessary hardship will result from the denial of the variance. This
Court has previously held in the context of use variances that
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) that the property can be conformed for a permitted use
only at a prohibitive expense; or (3) that the property has no value for
any purpose permitted by the zoning ordinance.
The issue here involves a dimensional variance and not a use variance
- an important distinction ignored by the Commonwealth Court.
When seeking a dimensional variance within a permitted use, the
owner is asking only for a reasonable adjustment of the zoning
regulations in order to utilize the property in a manner consistent with
the applicable regulations. Thus, the grant of a dimensional variance
is of lesser moment than the grant of a use variance, since the latter
involves a proposal to use the property in a manner that is wholly
outside the zoning regulation.
Id. at 47 (citations omitted). Our Supreme Court ultimately held that “the quantum of proof
required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed
to a use variance, is sought.” Id. at 48. Importantly, contrary to Applicant’s representation, the
ZBA’s Notice of Decision characterized the variance granted in the current matter as a use
variance, not a dimensional variance, and thus, Applicant was required to demonstrate the
appropriate hardship standard for such a variance. See R.R. at 66a.
11
Since Applicant seeks to use a rear yard for prohibited parking, it is “propos[ing] to use
the [P]roperty in a manner that is wholly outside the zoning regulation[,]” and thus must meet the
requirements for a use variance. Hertzberg, 721 A.2d at 47. It is an applicant’s burden to
demonstrate that it meets the requirements for a use variance. Our Supreme Court recently
explained:
Section 14-1802(1) of the [Code] sets forth specific criteria that the
ZBA must consider in determining whether to grant a variance. This
Court has ‘boiled down’ the [Section] 14-1802(1) criteria into three
key requirements: ‘(1) unique hardship to the property; (2) no adverse
effect on the public health, safety or general welfare; and (3) . . . the
minimum variance that will afford relief at the least modification
possible.’ [E]. Torresdale Civic [Ass’n] v. Zoning [Bd.] of Adjustment
12
of [Phila.] [Cnty.], . . . 639 A.2d 446, 447 ([Pa.] 1994). The hardship
must be unique to the property at issue, not a hardship arising from
the impact of the zoning regulations on the entire district. . . . In
addition, the special conditions or circumstances forming the basis for
the variance must not have resulted from the actions of the party
seeking the variance. [Section] 14-1802(1)(d). The party seeking the
variance bears the burden of proof.
This Court has previously held that, in the context of use variances,
‘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.’ [Hertzberg , 721 A.2d at
47] . . . .
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. . . . Showing that the property at
issue is ‘valueless’ unless the requested variance is granted ‘is but one
way to reach a finding of unnecessary hardship; it is not the only
factor nor the conclusive factor in resolving a variance request.’
Hertzberg, [721 A.2d] at 48. Rather, ‘multiple factors are to be taken
into account’ when assessing whether unnecessary hardship has been
established. Id. . . . .
....
Although a property owner is not required to show that his or her
property is valueless unless a variance is granted, ‘[m]ere economic
hardship will not of itself justify a grant of a variance.’ Wilson v.
Plumstead [Twp.] Zoning Hearing [Bd.], . . . 936 A.2d 1061, 1069
([Pa.] 2007) (citation omitted). In Valley View [Civic Association v.
Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983)] we
explained that ‘mere evidence that the zoned use is less
financially rewarding than the proposed use is insufficient to justify a
variance.’ Particularly where a variance is sought in order to make a
change from an existing use consistent with the zoning code to an
inconsistent use, ‘the mere fact that the property would increase in
value . . . if a variance were granted, is not of itself a sufficient basis’
upon which to find unnecessary hardship. O’Neill v. [Phila.] Zoning
[Bd.] of Adjustment, . . . 120 A.2d 901, 904 ([Pa.] 1956)[.] . . .
Marshall v. City of Phila., 97 A.3d 323, 329-30 (Pa. 2014) (citations omitted).
13
For all of the above reasons, the trial court’s order is reversed. 12 The
matter is remanded to the trial court with the direction to remand this action to the
ZBA for further proceedings consistent with this opinion.
___________________________
ANNE E. COVEY, Judge
12
Given our disposition of this matter, we need not address Objectors’ other issues.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Arthur and Elke Plaxton, :
Appellants :
:
v. :
:
Zoning Board of Adjustment, and : No. 727 C.D. 2015
1903 Spring Garden Associates, LP :
ORDER
AND NOW, this 13th day of June, 2016, the Philadelphia County
Common Pleas Court’s (trial court) March 30, 2015 order is reversed and the matter
is remanded to the trial court with the direction to remand this action to the Zoning
Board of Adjustment for further proceedings consistent with this opinion.
Jurisdiction is relinquished.
___________________________
ANNE E. COVEY, Judge