Opinion
No. 943 C.D. 2011
03-21-2012
Center City Residents' Association, Beth Lundy, Dr. James F. Schlatter, Dr. Amy S. Hodgdon and James Richardson v. Zoning Board of Adjustment, City of Philadelphia and Luke Debevec, Esq. Appeal of: Luke Debevec, Esq.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Luke Debevec, Esq., appeals from the May 16, 2011 Order of the Court of Common Pleas of Philadelphia County (trial court) vacating the Decision and Order of the Philadelphia Zoning Board of Adjustment (ZBA) that granted Debevec certain dimensional variances to erect a fourth floor addition and roof deck on his property. Debevec argues that: (1) the trial court's order should be reversed because the ZBA's finding of unnecessary hardship is supported by substantial evidence; and (2) his property is subject to disparate zoning treatment relating to the Philadelphia Zoning Ordinance's (Ordinance) property height restrictions.
Oral argument was granted by this Court in this matter pursuant to Center City Residents' Association's application. Although Debevec is an attorney, he is technically pro se as he is representing himself.
Debevec owns a three story dwelling in the City of Philadelphia at 511 South 18th Street that is zoned R-10A. The R-10A zone allows a maximum building height of 35 feet and no more than three stories. Debevec's dwelling is 12 feet wide, although the actual usable space is only 11 feet. The majority of the properties on Debevec's block and the properties located on the opposite side of the street from Debevec's property are uniformly zoned RC-3, where an additional story or roof deck is allowed as of right. The properties located on the blocks on either side of Debevec's property are zoned R-10 and R-10A. The dwellings on either side of Debevec's dwelling are three stories. There is a five story apartment building and a row of four story dwellings nearby, another row of four story dwellings with frontage on 18th Street, and a 12 story hospital directly across the street from Debevec's property. (ZBA Findings of Fact (FOF) ¶¶ 1-11.)
S e e Section 14-205 of the Ordinance providing for a building height limit of 35 feet and a maximum of 3 stories for a dwelling located in the R-10A zoning district. (Ordinance § 14-205.)
See CityMaps, R.R. at 92a.
According to the CityMaps, these properties are zoned R-10A. (CityMaps, R.R. at 92a.)
On July 1, 2009, Debevec applied to the Department of Licenses and Inspections (L&I) for a zoning/use registration permit to erect the fourth floor addition and roof deck onto his existing three story dwelling. L&I denied Debevec's application because the proposed addition exceeded the maximum height (35 feet) and number of stories (3) allowed for a property zoned R-10A. The proposed height for the addition was 42 feet, resulting in four stories. Debevec's contractor appealed to the ZBA on his behalf on the basis that the proposed addition "would be comparative to [] residences in the neighborhood and surrounding areas." (Petition of Appeal, R.R. at 50a.) A public hearing was held on May 26, 2010. Four neighbors, who also represented the Center City Residents' Association (Association), testified against the variance because the additional height would block the sunlight to their properties. The Philadelphia Planning Commission recommended against granting the variance, and the ZBA received letters both in support of and in opposition to the variance request. Only one neighbor testified in support of Debevec's application. (FOF ¶¶ 1-3, 16, 21-23.)
These four neighbors are Appellees in this matter: Beth Lundy, Dr. James F. Schlatter, Dr. Amy S. Hodgdon, and James Richardson.
On June 15, 2010, after permitting the record to remain open for the submission of additional information, the ZBA granted Debevec a variance to erect a fourth floor addition and roof deck on his property. The ZBA found that the variance was not contrary to the public interest and literal enforcement of the Ordinance would result in unnecessary hardship. The ZBA concluded that the property was subject to unnecessary hardship due to its "unique physical condition and circumstances" because the property was "exceptionally narrow" and "located on a mixed zoned block." (ZBA Conclusions of Law (COL) ¶¶ 8-9, 12; Trial Ct. Op. at 2.)
The Association and the four neighbors opposing the application appealed the ZBA's decision to the trial court. The trial court granted the appeal and vacated the ZBA's Order. Without taking additional evidence, the trial court determined that the evidence failed to substantiate the ZBA's finding of hardship. The trial court opined that Debevec's contention that his property is too narrow to expand except by an increase in height would hold true for every row house in the City of Philadelphia. (Trial Ct. Op. at 1-6.) This appeal by Debevec followed.
"Absent the presentation of additional evidence after the Board's decision," as here, "our scope of review is limited to determining whether the Board committed an error of law or abuse of discretion." Manayunk Neighborhood Council v. Zoning Board of Adjustment of the City of Philadelphia, 815 A.2d 652, 656 (Pa. Cmwlth. 2002).
Debevec raises the following issues on appeal:
(1) Whether the ZBA properly granted Debevec's requests for dimensional zoning variances based upon a showing of substantial evidence of unnecessary hardship resulting from literal enforcement of the Ordinance, unique conditions to the property necessitating a variance, lack of adverse impact on neighboring property, and disparate zoning treatment of surrounding properties.
(2) Whether the disparate zoning treatment imposed on Debevec's property relating to property height restrictions, as opposed to zoning treatment of neighboring properties, provide[s] an alternate basis for affirming the ZBA's Decision finding unnecessary hardship resulting from literal enforcement of the Ordinance to justify granting the dimensional variances.
In support of the first issue, Debevec argues that the trial court's Order should be reversed because the ZBA's finding of unnecessary hardship is supported by substantial evidence and was well within the ZBA's discretion. Debevec contends that Section 1801(1)(c) of the Ordinance authorizes the ZBA to grant the dimensional variance in this matter as it will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the Ordinance will result in unnecessary hardship, and where the spirit of the Ordinance will be served and substantial justice done. (Ordinance § 14-1801(1)(c).) Debevec argues that the ZBA's grant of the dimensional variance was in accordance with the relaxed standard set forth in the Supreme Court's decision in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). The ZBA considered: (1) the physical characteristics of the property; (2) the relatively small size of the lot at issue; (3) the building itself; (4) the characteristics of the surrounding neighborhood; and (5) financial hardship. Debevec contends that the hardships at issue relate uniquely to the property, not to him as the owner. Debevec asserts that the property's interior living space and floor plan is not appropriate for a family of any size. Debevec contends that, as found by the ZBA, the dwelling is exceptionally narrow, it is located on a mixed block with the result that the property is subject to height restrictions that do not apply to most other properties in the immediate vicinity, including the properties owned by the neighbors representing the Association. As such, Debevec argues that literal enforcement of the Ordinance imposes an unnecessary and unreasonable hardship.
Section 14-1801(1)(c) of the Ordinance provides that the ZBA "may, after public notice and public hearing":
authorize, upon appeal, in specific cases, such variance from the terms of this Title as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this Title would result in unnecessary hardship, and so that the spirit of this Title shall be observed and substantial justice done, subject to such terms and conditions as the Board may decide.(Ordinance § 14-1801(1)(c).)
Debevec argues further that the ZBA's grant of the variance creates no suspect "free-fire zones." (Debevec Br. at 26.) Thus, this Court's concerns in cases decided after Hertzberg are not present here - the objecting neighbors in this matter have nothing about which to complain - their properties are all zoned RC-3; therefore, they may build a house as high as, or higher than, the 42 feet height Debevec is requesting by pursuing a variance of seven feet.
S ee Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of the City of Philadelphia, 771 A.2d 874, 877-78 (Pa. Cmwlth. 2001) (explaining that Hertzberg did not create "free-fire zones" where variances could be granted when the applicant "merely articulate[s] 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").
Our Supreme Court has concluded that, when confronted with the question of whether a variance should be granted for a property located in Philadelphia, the Ordinance should be followed as opposed to the Pennsylvania Municipalities Planning Code (MPC). See East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 324, 639 A.2d 446, 447 (1994) (noting that Section 14-1802(1) of the Ordinance sets forth the specific criteria which the ZBA must consider). "In essence, an applicant seeking a variance pursuant to the Ordinance must demonstrate that: (1) the denial of the variance will result in unnecessary hardship unique to the property; (2) the variance will not adversely impact the public interest; and (3) the variance is the minimum variance necessary to afford relief." Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011). "The burden on an applicant seeking a variance is a heavy one, and the reasons for granting the variance must be substantial, serious and compelling." Id.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202. The Supreme Court has noted that the MPC "enables local municipalities to enact and enforce zoning ordinances" and that Philadelphia "is not covered by the MPC and has enacted its own zoning ordinance." Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 422, 936 A.2d 1061, 1064 (2007) (recognizing that the requirements for granting a variance under the Ordinance and the MPC are coterminous in many respects).
Section 14-1802(1) of the Ordinance provides the following criteria for consideration:
(a) that because of the particular physical surrounding, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of this Title would result in unnecessary hardship;(Ordinance § 14-1802(1)(a)-(l).)
(b) that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought;
(c) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property;
(d) that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant;
(e) that the grant of the variance will not substantially increase congestion in the public streets;
(f) that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety;
(g) that the grant of the variance will not overcrowd the land or create an undue concentration of population;
(h) that the grant of the variance will not impair an adequate supply of light and air to adjacent property;
(i) that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park or other public facilities;
(j) that the grant of the variance will not adversely affect the public health, safety or general welfare;
(k) that the grant of the variance will be in harmony with the spirit and purpose of this Title; and
(l) that the grant of the variance will not adversely affect in a substantial manner any area redevelopment plan approved by City Council or the Comprehensive Plan for the City approved by the City Planning Commission.
"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." Hertzberg, 554 Pa. at 257, 721 A.2d at 47. Our Supreme Court held in Hertzberg that:
To justify the grant of a dimensional variance, courts may consider multiple factors, including 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 264, 721 A.2d at 50. This Court has explained Hertzberg as follows:
Moreover, while 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-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. Moreover, adjoining property owners could never depend on the implicit mutual covenants that placing dimensional restrictions on all property would only be varied when there were compelling reasons that not to do so would create a severe unnecessary hardship.Society Created to Reduce Urban Blight v. Zoning Board of Adjustment of the City of Philadelphia, 771 A.2d 874, 877-78 (Pa. Cmwlth. 2001). We further explained:
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.
It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. This well-established principle, unchanged by Hertzberg, bears emphasizing in the present case. A variance, whether labeled dimensional or use, is appropriate "only where the property, not the person, is subject to hardship."Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972) (emphasis in original)). Thus, the principle stands that "in 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." Singer, 29 A.3d at 150.
In the present case, a review of the record reveals that the trial court correctly concluded that the evidence fails to substantiate the ZBA's finding of hardship. Debevec testified before the ZBA that he intended to use the proposed fourth story as additional living space. (Hr'g Tr. at 3, R.R. at 58a.) Debevec testified, "[a]nd then in the way of hardships my house is 11 feet wide[,] it's not a large house, in terms of width. The only way to go is up in terms of adding space for living space and so I'd submit the fact that this is appropriate hardship." (Hr'g Tr. at 23, R.R. at 78a.) It is on this basis that Debevec wishes to establish unnecessary hardship in order to be granted the requested dimensional variances. However, although we sympathize with what Debevec characterizes as an interior living space hardship, Debevec can still use his property for its permitted and zoned use - a residential dwelling. Accordingly, we are constrained to agree with the trial court that the ZBA erred, under the law, by finding unnecessary hardship and granting Debevec's application to erect a fourth floor addition and roof deck onto his dwelling.
In light of our disposition of Debevec's first issue raised in this appeal, we need not address his argument that the ZBA's finding of no adverse impact on neighboring properties is supported by substantial evidence. --------
Next, Debevec argues that his property is subject to disparate zoning treatment relating to the Ordinance's property height restrictions. Debevec asserts that his property and his non-objecting neighbor's property are the only properties in the neighborhood that are subject to the three story height limit. The ZBA found, as fact, that there are buildings higher than three stories, as well as buildings permitted to be built higher than three stories, on all sides of the subject property. Debevec contends that his property is left in the unique position in the neighborhood of being unable to increase in height to alleviate space limitations caused by its uniquely narrow structure and layout. Debevec argues that the situation facing his property constitutes unconstitutional reverse spot zoning. Debevec points out that the vast majority of properties surrounding his property are zoned RC-3 with unlimited height allowances and other nearby R-10A properties are already built larger than three stories, while his property is restricted to three stores by the arbitrarily applied R-10A designation and the trial court's decision to strictly enforce it. Debevec argues that an "as applied" constitutional violation occurs when a reasonable variance to remedy such unnecessary hardships is refused, thereby preventing a property owner from enlarging his dwelling to remedy space concerns.
"[T]he zoning of property, a legislative act, is usually not subject to successful challenge unless disparate treatment is shown." LHT Associates, LLC v. Township of Hampton, 809 A.2d 1072, 1075 (Pa. Cmwlth. 2002). "Reverse spot zoning occurs where an 'island' develops as a result of a municipality's failure to rezone a portion of land to bring it into conformance with similar surrounding parcels that are indistinguishable." Id.; see also In Re: Appeal of Realen Valley Forge Greenes Associates, 576 Pa. 115, 136, 838 A.2d 718, 731 (2003) (holding that "[s]ome courts have used the term 'reverse spot zoning' to describe the circumstances where the unjustified difference in treatment arises from the rezoning of lands surrounding the tract at issue" making the tract in question an "island" of a different zoning although there are no differences in character from the neighboring properties.). "It is the difference in treatment that must be justified, not its origin or chronology." In re Realen, 576 Pa. at 136, 838 A.2d at 731.
Unfortunately, the facts in this matter do not support Debevec's claim of disparate treatment or reverse spot zoning. There is no evidence of any intentional pattern of rezoning on either the subject property or the surrounding area. While it is true that some of the neighboring homes are zoned RC-3, the neighborhood in which Debevec's property is located is zoned predominately residential; specifically, the neighborhood is zoned mostly R-10A and R-10. (CityMaps, R.R. at 92a.) Moreover, as found by the ZBA, the dwellings located on the properties on either side of Debevec's property are only three stories and also are zoned R-10A. (FOF ¶ 10; CityMaps, R.R. at 92a.) There are row homes zoned RC-3, which is a mixed residential and commercial district, located near Debevec's property. However, there is no evidence that the area was unjustifiably zoned in such a manner as to benefit the neighboring properties or to injure Debevec's property.
In addition, the fact that some of properties neighboring Debevec's property are zoned RC-3, in which there is no 35 foot height requirement, and some of the neighborhood properties zoned R-10 or R-10A have homes with four stories, does not support Debevec's claim of disparate treatment. The mere fact that the zoning across the street or down the block is different does not support a finding that the zoning of Debevec's property is arbitrary and unconstitutional. There must be a line of demarcation fixed somewhere. Guentter v. Borough of Landsdale, 345 A.2d 306, 310 (Pa. Cmwlth. 1975) (refusing to hold that zoning of appellants' property was "arbitrary and unconstitutional merely because it [was] different from the zoning across the street," because "the same arguments [could] prevail in favor of landowners immediately adjacent to the [same parcel] and so on ad infinitum."). In short, Debevec's property is not an "island," which has been singled out for differential treatment. Therefore, Debevec's claim of reverse spot zoning cannot prevail.
Although Debevec asserts that he is entitled to a variance because nearby R-10 and R-10A dwellings are taller than 35 feet, he did not present any evidence that such properties obtained variances to allow such height. Moreover, even if he had, our Supreme Court has long rejected the notion that a variance should be granted because other variances may have been previously issued in the immediate area of the applicant's property. Spadaro v. Zoning Board of Adjustment of Philadelphia, 395 Pa. 375, 379, 147 A.2d 159, 161 (1959). The Supreme Court stated that "the acceptance of such an argument would lead to absurd results. Under appellant's theory the issuance of a single variance would justify a complete rezoning of a particular area by the utilization of the variance procedure, a practice condemned on numerous occasions by this court." Id. Therefore, regardless of how many stories other dwellings located on properties zoned R-10 or R-10A in Debevec's neighborhood may have due to the possible issuance of a variance, as in Spadaro, any alleged disparate treatment in this matter "stems only from [Debevec's] failure to prove unnecessary hardship as required by the [O]rdinance." Id.
Accordingly, we are constrained to conclude that: (1) the literal enforcement of the Ordinance does not impose an unnecessary and unreasonable hardship upon Debevec's property; (2) the denial of the dimensional variances is not reverse spot zoning; and (3) there is no disparate zoning treatment. Therefore, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 21, 2012, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge