97 A.3d 323 (Pa. 2014), 37 EAP 2013, Marshall v. City of Philadelphia

Docket Nº:37 EAP 2013
Citation:97 A.3d 323
Attorney:For Archdiocese of Philadelphia, Appellant: Kevin R. Boyle, Esq., Karl Stewart Myers, Esq., Maria J. Wing, Esq., Stradley Ronon Stevens & Young, LLP. For Gloria Marshall, Appellee: Jon Alan Marshall Jr., Esq. For City of Philadelphia, Appellee: Andrew S. Ross, Esq., City of Philadelphia Law Depar...
Judge Panel:JUDGES: BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE McCAFFERY. Mr. Chief Justice Castille, Messrs. Justice Saylor and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Eakin files a dissenting opinion. MR. EAKIN, JUSTICE
Case Date:July 21, 2014
Court:Supreme Court of Pennsylvania

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97 A.3d 323 (Pa. 2014)




No. 37 EAP 2013

Supreme Court of Pennsylvania

July 21, 2014

Argued March 11, 2014

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Appeal from the Order of the Commonwealth Court, entered on October 11, 2012, at No. 244 CD 2012, (reconsideration denied, November 27, 2012) reversing the Order entered on October 3, 2011, in the Court of Common Pleas, Civil Division, Philadelphia County, at No. 4476 January Term, 2011. Trial Court Judge: Idee C. Fox, Judge; Intermediate Court Dan Pellegrini, President Judge, Mary Hannah, Rochelle S. Friedman, Judges.

For Archdiocese of Philadelphia, Appellant: Kevin R. Boyle, Esq., Karl Stewart Myers, Esq., Maria J. Wing, Esq., Stradley Ronon Stevens & Young, LLP.

For Gloria Marshall, Appellee: Jon Alan Marshall Jr., Esq.

For City of Philadelphia, Appellee: Andrew S. Ross, Esq., City of Philadelphia Law Department.

For Zoning Board of Adjustment, Appellee: Darin J. Steinberg, Esq.



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In this zoning matter, we must determine if the Commonwealth Court applied an improper standard in reversing a zoning board's grant of a variance.

On November 8, 2010, the Archdiocese of Philadelphia (" Archdiocese" ) filed an Application for Zoning/Use Registration Permit with the Philadelphia Department of Licenses and Inspections (" L& I" ) for conversion of the Nativity B.V.M. Elementary School into a 63-unit, one-bedroom apartment complex for low income senior citizens, to be called Nativity B.V.M. Place. The school, in the Port Richmond section of Philadelphia, had been constructed in 1912 and operated by the Archdiocese in legal non-conformance with subsequently enacted zoning codes until 2008, when it had been closed due to declining enrollment and insufficient revenue. In 2009, the Archdiocese received funding under the Section 202 Supportive Housing for the Elderly program of the United States Department of Housing and Urban Development (" HUD" ) to convert the school to senior housing.1

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L& I denied the Archdiocese's Application for Zoning/Use Registration Permit as not in compliance with several provisions of the Philadelphia Zoning Code.2 Specifically, L& I found the following: (1) the proposed use was not a permitted use in the R-10A Residential Zoning District; 3(2) only four parking places were provided in the proposed project, whereas nineteen were required; 4(3) three of the parking spaces were not of sufficient size; 5(4) the landscaping in the proposed parking lot was insufficient; and (5) there were several dimensional non-conformities with respect to the rear and side yards and the height of the building. The Archdiocese appealed to the City of Philadelphia Zoning Board of Adjustment (" ZBA" ) for use and dimensional variances.

On January 5, 2011, the ZBA held an evidentiary hearing at which John Hayes, the project architect, and John Wagner, a representative from Catholic Health Care Services, a part of the Archdiocese and the sponsor of the project,6 testified. The testimony established that the project constituted " an adaptable reuse of a neighborhood anchor that would have gone vacant, [and] which could have ended up as a nuisance and now [is] going to be adaptive and reused for the benefit of seniors of this community." Notes of Testimony (" N.T." ), ZBA Hearing, 1/5/11, at 4. Other evidence indicated that the Archdiocese had engaged the community in discussion about the housing project and had found that there was wide support,7 and furthermore,

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that there was a need for low income senior housing in the area. The Archdiocese made clear its intention to open up between 20 and 30 parking spaces on the street by petitioning the city to remove signs banning parking during school hours, signs no longer needed or appropriate since the school had closed. In addition, most of the new residents would have an income at or below the poverty level and all would be over age 62, a demographic in which not all individuals own vehicles. Id. at 3-9.

At the ZBA hearing, there was only one objector, attorney Jon Marshall, who was representing his mother Gloria Marshall (" Appellee" ), a resident of the area who had attended community meetings regarding the project but had not previously raised any objections. Id. at 23-24. Appellee argued that the Archdiocese had not shown hardship unique to the school building, as required for the grant of the variance. Id. at 14; see id. at 23 (Appellee's statement that " Really, it's the hardship issue I'm interested in." ). Furthermore, Appellee contended, the Archdiocese had itself created a hardship by choosing to close down all activities in the building rather than raise tuition to generate more revenue. Id. at 14-15. When asked by the ZBA co-chairman what her specific opposition was to the proposed project, Appellee responded as follows: " Parking is a problem in that area. The nature of the neighborhood does not have any multifamily housing." Id. at 15-16. Appellee also contended that " people were against having Section 8 housing on the block. They found out it would bring people in who were low income, who didn't work, had parties all night, who rolled in the kegs, and had a very enjoyable time on blocks where people had quiet homes." Id. at 19. In addition, Appellee objected to placement of a driveway near where children walk; questioned where the trash would be picked up; and observed that pieces of cement had fallen off the building, one piece having landed on the top of a vehicle some twenty years ago. Id. at 20-21. Finally, Appellee asserted that, in seeking a variance, the Archdiocese had the burden to show why it was impractical to build single-family houses on the site. Id. at 24.

Just prior to the ZBA's vote, co-chairperson Peter Gonzales, Esq., reviewed some of the other uses permitted in this R-10A-zoned district: professional offices, art galleries, a place of worship, a library, a telephone exchange building, a surgical or medical hospital, and a water and sewage pumping station. Id. at 30-31. Mr. Gonzales concluded that most of these permitted uses " would provide more congestion to the neighborhood in terms of parking and traffic" than the proposed senior housing project. Id. at 31.

The ZBA hearing ended with the members voting unanimously to grant the variances sought by the Archdiocese. The ZBA subsequently set forth its findings of fact and legal conclusions in writing. See Findings of Fact and Conclusions of Law of the Philadelphia Zoning Board of Adjustment, filed 5/6/11. The ZBA concluded that the Archdiocese had established the " overwhelming support" of the surrounding community for the housing project. Id. at 8 ¶ 6. In addition, the Archdiocese had demonstrated the " unique nature" of the property, one aspect of which was its legally non-conforming character. Id. at 8 ¶ ¶ 6, 7. The building currently was vacant, in need of repair and providing no benefit to the community. Id. at 8 ¶ 6. The variances

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sought for parking, traffic, trash, and aesthetics " would not adversely impact the health, safety and welfare of the surrounding community," and in fact, the proposed use would be less burdensome on the community than the previous use as a school or other uses permitted as of right. Id. at 8 ¶ 7. The conditions that formed the basis for the requested variances were not the result of the Archdiocese's actions, but rather were unique to the property and related to its legally non-conforming character. Id. at 8 ¶ ¶ 7, 8. After weighing all the evidence and considering the record as a whole, the ZBA concluded that the Archdiocese had satisfied its burden of proof, summarizing its decision as follows: " the use of the Subject Property as affordable housing for low income seniors and the dimensional and other use variances required for such use, are consistent with the area surrounding the Subject Property[; ] literal enforcement of the Zoning Code would create an unnecessary hardship to the Subject Property[; ] there would be no adverse impact on the public health, safety or general welfare[; ] and [ ] the Variances represent the minimum variances that will afford relief at the least modification possible." Id. at 9 ¶ ¶ 13-14. Appellee appealed to the court of common pleas, which affirmed, on October 3, 2011, based upon consideration of the record, the findings and conclusions of the ZBA, and the parties' memoranda and oral argument.

Appellee then appealed to the Commonwealth Court, raising issues related to establishment of hardship and insufficient parking spaces. In an unpublished memorandum opinion filed on October 11, 2012, the Commonwealth Court reversed the order of the court of common pleas affirming the decision of the ZBA to grant the variances sought by the Archdiocese. The court cited several cases that it interpreted to " provide that in order to meet the burden necessary to obtain a use variance, a property owner must demonstrate that the entire building is functionally obsolete for any purpose other than one not permitted under the relevant zoning ordinance." Marshall v. City of Philadelphia and Zoning Board of Adjustment, 54 A.3d 444 (Table), No. 244 C.D. 2012, Memorandum Opinion at 9 (Pa.Cmwlth., filed 10/11/12). Concluding that the Archdiocese had " completely failed to address how the physical characteristics of the property would prevent it from being utilized as one of the many other permitted uses in an R-10A Zoning District," the court held that the ZBA had " improperly found that a unique hardship existed," and its grant of the...

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