East Torresdale Civic Ass'n v. Zoning Bd. of Adjustment of City of Philadelphia

• Decision Date: 30 August 1984
• Citation: 85 Pa.Cmwlth. 12,481 A.2d 976
• Parties: EAST TORRESDALE CIVIC ASSOCIATION, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA and James Flannery, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 976

481 A.2d 976

85 Pa.Cmwlth. 12

EAST TORRESDALE CIVIC ASSOCIATION, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA and James Flannery, Appellees.

Commonwealth Court of Pennsylvania.

Argued June 6, 1984.

Decided Aug. 30, 1984.

Richelle D. Hittinger, Philadelphia, for appellant.

Peter F. Kelsen, Asst. City Sol., Mary Rose Cunningham, Carl K. Zucker, Philadelphia, for appellees.

Before ROGERS, CRAIG and BARBIERI, JJ.

ROGERS, Judge.

East Torresdale Civic Association has appealed from an order of the Court of Common Pleas of Philadelphia County upholding the grant by the Philadelphia Zoning Board of Adjustment of several dimensional and a use variance to the appellee, James Flannery, so that he might place what he calls a commercial condominium and seventy-six parking spaces on a vacant lot in the city's R-3 residential zoning district. The use variance, which is the essential point in this contest, ¹ is needed because only detached and semi-detached single-family dwellings are permitted uses in the R-3 residential district and because the appellee's proposed commercial condominium consists of a row of thirteen attached stores.

The appellee's lot is in the shape of a tear drop; it is long, narrow and wider on one end than the other. It contains 1.196 acres. The long south lot line is the right-of-way of Grant Avenue upon which the proposed stores would front. Across Grant Avenue and facing the site of the proposed development are a single-family and four semi-detached dwellings, the owners of at least two of which are members of the Civil Association. The owner of one of these homes testified in opposition to the variances. The long north lot line of the lot is bounded by the Poquessing Creek. The short sides of the lot are bounded respectively by another public road on the east and a commuter railway line on the west.

The city's Department of Licenses and Inspections denied the appellee's applications for zoning permits and he applied to the zoning board for the mentioned variances, which the board granted. The court of common pleas, which received no evidence, affirmed.

The appellee's suit was, and is, bottomed on the authority of cases holding that the effect of zoning regulations, as particularly applied to the property of the applicant for a variance, may be restrictive to the point of confiscation and hence require the issuance of a variance permitting a reasonable use of the land. ² This form of relief is called a "validity variance." See Ryan, Pennsylvania Zoning Law and Practice, § 3.1.8(1). As can be seen, two of the circumstances essential to the grant of a validity variance are: first, that the effect of the regulations complained of be special to the applicant's property and not merely a difficulty common to other lands in the neighborhood, Crafton Borough Appeal, 409 Pa. 82, 185 A.2d 533 (1962); Michener Appeal, 382 Pa. 401, 115 A.2d 367 (1955); and second, that the effect of the regulation be, as we have said, confiscatory, ³ that is, such as to deprive the owner of the use of the property, Nicholson v. Zoning Board of Adjustment, 392 Pa. 278, 140 A.2d 604 (1958), Berman v. Exley, 355 Pa. 415, 50 A.2d 199 (1947), or, expressed in other terms, such as to destroy the value of the land altogether, or at least to reduce it to "the distress level where buying sharks can always be found." Ferry v. Kownacki 396 Pa. 283, 287, 152 A.2d 456, 458 (1959).

This case falls into a subclass of the general class just described, consisting of cases in which the applications were for validity variances permitting the commercial use of residentially zoned property in relief of the unnecessary hardship allegedly caused to the applicants' properties by the impact of surrounding nonresidential uses. See Ryan, Pennsylvania Zoning law and Practice, § 6.4.5, for a collection of the cases in this subclass to the date of that writing.

To the cases collected by Mr. Ryan must be added the Supreme Court's recent decision in Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983), in which the applicant had sought, based on the commercial and industrial characteristics of the neighborhood, a validity variance which would permit her to use residentially zoned property for commercial purposes. The issue in the appeal to the Supreme Court was that of whether the applicant was required to produce direct evidence that her property was rendered "practically valueless" by the zoning restrictions, as this court held, or whether she had satisfied her burden of proving unnecessary hardship by adducing evidence concerning the neighborhood of quality and quantity sufficient to support as reasonable the board of adjustment's finding that "the subject property is virtually surrounded by dissimilar and disharmonious commercial and industrial uses which render it virtually impossible to use the site for residential purposes." The Supreme Court reversed the order of this court and reinstated the zoning board of adjustment's grant of the variance, holding that the applicant was not required to adduce direct evidence ⁴ of the fact that her property was unusable and worthless as zoned but that it was sufficient that she show, as she had, that the commercial and industrial uses surrounding the property were such that the inference that the property was "virtually unusable and of scant value for traditional residential uses" might reasonably be drawn. Id. at 559, 462 A.2d at 642. We emphasize that the Supreme Court adhered to the principle that the seeker of a validity variance must prove that the existing zoning regulations render his property unusable and of "scant value" or "unmarketable for residential use." Id.

The residentially zoned property for which the validity variance was sought in Valley View was described by the Supreme Court as

"situated between a convenience store, open twenty-four hours a day, and a gas station, and that a bank and a retail tire store were across the street. In addition ... a nursery business has been conducted from the premises .... [There were] a dentist's office and a beer distributor, in addition to the convenience store, to the north of ... [the] ... property.... [T]here were four garages, an office and a cocktail bar opposite the property as well as a bank and the tire store. [The zoning board's visual inspection showed] the existence of the following uses on the east side of Ridge Avenue, the side on which the property was situated...: [F]illing station, beauty shop, barber shop, farm and golf supply, dwelling, haberdashery, vacant dwelling and store, beer distributor with large warehouse and two large ice dispensing machines on Ridge Avenue, two twin dwellings, Seven Eleven Store, subject property, filling station, twin dwelling, vacant lot, dwelling, rubbish removal business, vacant lot, dwelling, Phila. Elec. Transformers".

Id. at 557-558, 462 A.2d at 641 (footnotes omitted).

The applicant for variance in this case, as the applicant in Valley View, failed to adduce direct evidence of the "scant value" of the lot as residentially zoned and, as we will see, little more than witnesses' expressions of conclusions of its alleged unsuitability for residential use. Citing Valley View, the applicant contends, nevertheless, that his evidence of incompatible neighborhood conditions was sufficient to support the zoning board's finding that residential development of the lot was not possible. We disagree.

The evidence of surrounding uses in this case is much different from that in Valley View and in our view does not support the zoning board's finding of the unsuitability of the lot for residential uses. As we have noted, it is bounded in front by a public road across from which are four semi-detached dwellings and a single home; it is bounded on the rear by Poquessing Creek on the opposite bank of which is a residential condominium. Poquessing Creek flows into the Delaware River a few hundred yards from the property. Along the side of the river are more residential condominiums and a church conference center. Across Grant Avenue, on which the lot faces, and to the north of the houses fronting that street is a portion of the Torresdale station parking lot and more single or semi-detached residences.

The aerial photographs suggest that the principal use of the surrounding area is residential--a mix of homes and apartments gathered in the vicinity of the commuter railway stop and Interstate Highway I-95. As may be expected, there are stores in the immediate vicinity of the station but these appear not to be within sight of the applicant's lot. We observe, based on a zoning map of the immediate vicinity which is in the record, that these stores, as well as the station parking lot, may be located within a zoning district in which other than residential uses are permitted. In any case, in contrast with the location of the property under consideration in Valley View, there appear to be no commercial or industrial uses in the immediate presence of the applicant's lot on Grant Avenue.

The applicant adduced the testimony of...