Tuesday, October 25, 2011

Unusual physical features don't always equal a variance

In an interesting case from Philadelphia, the Philly Board of Zoning Appeals granted a number of variances of fairly large magnitude to an applicant who insisted that his hardship was created by the exceptional physical condition of the property. The difficulty was on appeal, that although in fact the property did have some exceptional features, they appear to be unrelated to the variance requested by the owner and given by the board.

The case is Singer v Philadelphia Board of Adjustment, 2011 WL 4501939 (Pa Cmmw. Ct 2011), and the developer sought to construct a 30 story mixed-use commercial building in downtown Philadelphia. Some of the deficiencies included a lack of on-site parking, zero lot line construction (25 foot side yard required), and an increase from the permitted 1200% FAR to a requested 1600%. The developer also asked for a use variance to allow the construction in the tower of a take-out restaurant.

At the hearing before the zoning board, the applicant presented testimony that the design and density of the proposed development were the result of the physical constraints of the property. Based on that testimony, after the hearing, the zoning board issued a decision granting variances as to each of the requested deficiencies as well as the use variance. The board found that the property was unique in that it was midblock between Walnut Street and Sansom, and that it had an irregular shape which wrapped around a pub located on the street level.

The decision was appealed to the trial court which affirmed the decision of the zoning board. However, on further appeal to the Philadelphia Commonwealth Court, the decision was reversed. The court initially noted that the burden on an applicant for a variance in Pennsylvania is heavy, and that the grounds for a variance must be serious, substantial, and compelling. The appellants made the argument that the property was not unique (or, to use the language of our Tennessee statute, exceptional) simply because it wrapped around the back of the street level pub or because it was located in the middle of the block. The appellants suggested that the property could easily be developed if the scope of the project was simply scaled-back. The Court agreed.

The Commonwealth Court began by noting that in the case of the dimensional variances being requested, the quantum of proof was slightly reduced from those involving use variances. Parenthetically, is useful to note that use variances are generally considered to be illegal here in Tennessee; the only type of variances that are properly presented to a zoning board here is a dimensional variance. Notwithstanding the fact that the dimensional variances had a somewhat reduced evidentiary requirement, the applicant still had to show a hardship created by the unique circumstances of the property, and the applicant’s desire to increase profitability on the property could not be substituted for that type of proof.

In fact, the court noted that the variances to exceed the permitted width, to reduce the length of the loading dock, to exceed the floor area ratio, and to eliminate all off street parking resulted in much more than a technical or superficial deviation from the terms of the ordinance. On the contrary, these types of significant requests are more properly addressed by asking for a zoning change rather than variances from the zoning board.

Finally with regard to the request for a use variance so as to allow the use of one of the mid-level areas as a take-out restaurant, required under Pennsylvania law that the developer demonstrate that the property could not be used for a permitted purpose. Since the property was at the time of the application already being used as a parking lot, there was ample proof that one of the permitted purposes was appropriate for the property.

One final interesting point about this case is that the Philadelphia Zoning Ordinance includes a list of requirements for variances which is very similar to the old Metro Nashville variance requirements. Those requirements were changed greatly when the new zoning ordinance was adopted for the city of Nashville 1998. I always wondered where the original list had come from (the planning staff in place when I first started work for Metro in the late 1970s told me that the ordinance had been put together out of provisions from many other cities in the country) but I had never realized the connection between the provisions for variances in Metro’s old zoning ordinance and those found in the zoning provisions in Philadelphia. It’s an interesting connection.

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