Metal Green Inc. & NOA Properties Inc. v. City of Philadelphia ~ Appeal of: W. Kraemer III & M. Kraemer ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Metal Green Inc. and :
NOA Properties Inc. :
:
v. : No. 373 C.D. 2019
: Argued: June 9, 2020
City of Philadelphia and :
City of Philadelphia Zoning :
Board of Adjustment and :
Wickham Kraemer III and :
Mary Kraemer, husband and wife :
:
Appeal of: Wickham Kraemer III :
and Mary Kraemer :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY JUDGE BROBSON FILED: July 28, 2020
Wickham Kraemer III and Mary Kraemer (Appellants) appeal from an order
of the Court of Common Pleas of Philadelphia County (common pleas), dated
February 25, 2019. Common pleas reversed the decision of the Zoning Board of
Adjustment of the City of Philadelphia (Board), which denied the application of
Metal Green Inc. (Owner)1 for a use variance. For the reasons discussed below, we
reverse common pleas’ order.
1
By order dated December 12, 2019, this Court precluded the City of Philadelphia (City),
also a party to this case, from filing briefs in this matter due to its failure to conform to this Court’s
earlier order directing it to do so.
I. BACKGROUND
This matter concerns Owner’s property at 6800 Quincy Street in the City of
Philadelphia (Property). The Property consists of roughly one-third of an acre
(14,222 square feet) and contains a two-story industrial building of approximately
23,000 square feet (Building), which has been unused for many years. Owner
purchased the Property at a sheriff’s sale in 2013 and did not immediately begin
work on the Building. In August of 2016, Mt. Airy USA, a local nonprofit, initiated
legal action against Owner concerning the Property pursuant to the Abandoned and
Blighted Property Conservatorship Act,2 commonly known as Act 135. In the
Act 135 proceedings, common pleas declared the Property to be blighted and
abandoned and ordered Owner to remediate the hazards the Property posed to the
community. Although it has the authority to order demolition pursuant to
Section 6(c) of Act 135, 68 P.S. § 1106(c), common pleas allowed Owner to make
repairs to the Building and to pursue redevelopment of the Property.
The Property is located in the City’s residential two-family attached zoning
district (RTA-1 district), which, under the Philadelphia Zoning Code (Code), permits
duplex residences as of right. Owner, together with NOA Properties,3 the equitable
owner of the Property at that time, decided to pursue redevelopment of the Building
as an 18-unit apartment complex with 19 indoor parking spaces.4 NOA Properties
applied for the required building permit with the City’s Department of Licenses and
Inspections (L&I), but L&I denied the permit application because the proposed
2
Act of November 26, 2008, P.L. 1672, as amended, 68 P.S. §§ 1101-1111.
3
NOA Properties has since ceased to have an equitable interest in the Property. Owner
pursued the variance before the Board from the time of the hearing onward and continues this
appeal as the legal owner of the Property.
4
Owner’s initial development proposal called for 21 dwelling units, but Owner
subsequently reduced the number of units to 18.
2
multifamily use is not permitted in the RTA-1 district. NOA Properties then
appealed L&I’s decision to the Board, seeking a use variance to allow conversion of
the Building into an 18-unit apartment building with 19 indoor parking spaces. The
Board scheduled a hearing on the variance request.
At the hearing on September 19, 2017, Owner first presented the testimony of
David Polatnick, a licensed architect employed by Owner. Mr. Polatnick described
Owner’s proposed conversion of the Building into apartment units and indoor
parking spaces, which, he emphasized, would occur without modification to the
existing dimensions of the Building. He testified that, unless the Building is
demolished, the Property cannot comply with the RTA-1 district’s open space and
setback requirements. He also explained that, because of the Property’s limited
street frontage, Owner could not construct any more than one single-family home on
the Property in a manner that complies with the Code. Mr. Polatnick added that, in
his professional opinion, Owner’s proposal would increase the safety of the Property
and its surroundings by incorporating updated fire suppression and structural
components into the Building. On cross-examination, Mr. Polatnick admitted that
nothing would prevent Owner from demolishing the Building.
Owner then presented the testimony of Andrew Miller, Esq., the attorney then
representing Owner in the Act 135 proceeding concerning the Property. Mr. Miller
testified that, following common pleas’ determination that the Property was blighted,
Owner undertook repairs to the roof and one wall of the Building. Mr. Miller also
explained that a hearing was scheduled for that same day before common pleas
regarding the status of Owner’s blight remediation efforts.
Owner next presented the testimony of George Ritter, a licensed landscape
architect and professional planner. Owner employed Mr. Ritter to evaluate the
3
characteristics of the neighborhood surrounding the Property and opine as to how
Owner’s proposal would fit into those characteristics. Mr. Ritter described the
immediate neighborhood as consisting of single-family detached homes,
semi-detached homes, multistory apartment buildings, and commercial uses, which
are spread across a variety of residential zoning districts ranging from RSD-3
(detached single family) to RM-3 (multifamily). Mr. Ritter explained that, of the
nine nearby duplex homes within the RTA-1 district, seven have been converted
(through variance relief) into multifamily structures with up to six units in one
building.
Mr. Ritter further testified that, based upon his review of property records and
field observations in the neighborhood, the nearby properties in the RTA-1 district
include a total of 40 dwelling units, equivalent to an average density of 62 units per
acre of property area. He also stated that the adjacent multistory apartment
buildings—which are located in a multifamily district permitting greater density—
average a density of 143 units per acre. Mr. Ritter opined that Owner’s proposed
use of the Property would have a density of about 55 units per acre—a lower density
than both the adjacent multistory apartments and the other properties located in the
RTA-1 district. He also observed that all of the other properties in the RTA-1 district
rely on street parking only, whereas Owner’s proposal will provide additional
parking in compliance with the Code’s requirements.
Concerning compatibility with the neighborhood, Mr. Ritter emphasized that
the renovations required for Owner’s proposal would be principally internal to the
Building and that the dwelling units themselves would be located on the second floor
of the Building with no ground-level view into the rear yards of adjacent properties.
When asked whether Owner’s proposal would “change . . . the essential character of
4
[the] neighborhood,” Mr. Ritter responded that, in his opinion, Owner’s proposal
“could only improve the character of the neighborhood” and “would actually
help . . . the value of the neighborhood, as compared to where it was headed.”
(Reproduced Record (R.R.) at 99a.) He further opined that, because the Building
already exists as a nonconforming use, the proposed renovation would (as opposed
to demolition) “have no detrimental effect” on the immediate area. (Id. at 101a.)
Mr. Ritter further testified that, because of the size of the adjacent multistory
buildings, a single-family home constructed in the Building’s place would be
“difficult” to market. (Id. at 102a.) When asked whether he thought Owner’s
proposal of 18 units “rang[ing] from 800 to 1,000 [square] feet” would be an
“overuse of the [P]roperty,” Mr. Ritter responded, “I do not.” (Id. at 106a.) Mr.
Ritter concluded with his opinion that Owner’s proposal is “a very good adaptive
reuse of [the B]uilding” which is “appropriate for the neighborhood,” will not
change the character of the neighborhood, and “will bring [the B]uilding back . . .
[as] a usable, functional structure in the community.” (Id. at 107a.)
On cross-examination, Mr. Ritter admitted that, in reviewing potential plans
for redeveloping the Property, he did not consider alternatives to Owner’s proposal
other than demolition and construction of single-family homes. When asked
whether “18 units is not necessarily the . . . least minimum variance required for [the
P]roperty,” Mr. Ritter answered: “I believe this is the least that should be considered,
given . . . that the [Building] is there and . . . it’s being renovated.” (Id. at 121a.)
After Mr. Ritter’s testimony, Ralph Pinkus, chairman of the West Mount Airy
Neighbors Zoning Committee (a registered community organization, or RCO, in the
area), testified. Mr. Pinkus summarized the contents of the letter that the RCO sent
to the Board in opposition to Owner’s proposal. He described a meeting of the RCO
5
that was held on September 6, 2017, at which all 21 people in attendance voted to
oppose Owner’s proposal. Mr. Pinkus shared the RCO’s belief that “this proposal
will . . . result in overcrowding in the neighborhood” and that Owner has made no
effort to discuss RCO members’ objections to the proposal. (Id. at 126a-27a.)
Owner then continued to present evidence, calling Frank Montgomery, a
licensed professional traffic operations engineer who conducted a transportation
study of the Property and its surroundings. Mr. Montgomery testified that the
surrounding intersections have “significant capacity” to absorb the additional trips
that would result from Owner’s proposal and that the proposal would not “present[]
a challenge or a stress on the local road.” (Id. at 136a-38a.) He also gave his opinion
that the parking impact of Owner’s proposal was significantly reduced by the interior
parking to be available to residents. Mr. Montgomery summarized his testimony by
stating that, in his opinion, Owner’s proposal would not negatively affect
transportation in the area and any traffic impacts would not alter the essential
character of the neighborhood.
Owner next presented the testimony of its president, Jack Azran. Mr. Azran
described Owner’s purchase of the Property and its efforts to remediate hazards
pursuant to the Act 135 proceeding. He also described prior owners’ attempts to
secure variance relief for the Property. Mr. Azran gave his opinion, as an
experienced builder, that the Building is too large to be used as a single- or
dual-family dwelling.
Finally, Owner presented the testimony of Jack Coyle, a certified real estate
broker and appraiser. Mr. Coyle described his review of the area’s zoning and
market characteristics, and he observed that most of the properties in the area are not
in strict compliance with the Code. He opined that it is not economically feasible to
6
use the Building for industrial or commercial purposes because of limited truck
access and low surrounding density. Mr. Coyle also opined that Owner’s proposal
“would enhance the character of the neighborhood.” (Id. at 198a.)
On cross-examination, Mr. Coyle confirmed that Owner’s proposal
for 18 units is, in his opinion, the least variance that would make the Building usable.
Specifically, he stated that the number of units that would take full advantage of the
Building as it exists now “approaches . . . 18,” and that he “wouldn’t [start] out
thinking about feasibility with 10 or 12 or 14 units.” (Id. at 207a.) On re-direct
examination, Mr. Coyle explained that, compared to the rental rate per square foot
in competing buildings in the area, the size of the 18 requested units is “right in the
wheel[]house of the market.” (Id. at 217a-18a.) He confirmed that, in his opinion,
the requested variance for 18 units is “the least minimum [variance that would] . . .
afford relief for [Owner].” (Id. at 218a.)
Appellants presented the testimony of several witnesses in opposition to
Owner’s proposal. First, Wickham Kraemer III, who owns a single-family home
adjacent to the Property, described the neighborhood as beautiful, historic, and
vibrant, with monthly neighborhood parties and a family-friendly atmosphere. He
acknowledged the more dense character of the two multistory apartment complexes
nearby, but also clarified that the greater density is concentrated in the immediate
area of those complexes, which do not greatly affect the character of the
single-family homes in the area. Mr. Kraemer stated that no representative of Owner
has approached him to discuss the proposed renovation. While open to discussing
the project, Mr. Kraemer stated that he “would like . . . something less dense, that
would conform with the neighborhood, . . . have an open area, have families move
7
in, just like the rest of the area.” (Id. at 229a.) He confirmed that he is “looking for
a lesser variance to be granted.” (Id. at 229a-30a.)
Mr. Kraemer also described specific concerns he had over increasing density,
including increased traffic and sound pollution. He offered his lay opinion that
building fewer, larger units in the Building at a higher price point would be viable
in the local market and might attract more families to the area, which is his
preference. In conclusion, he stated that Owner’s proposal would “very much”
negatively affect his and his family’s way of life and the character of the community.
(Id. at 234a.)
Appellants next presented testimony by several neighborhood residents in
opposition to Owner’s proposal. Colleen Floyd-Carrol testified that the two
multistory apartment buildings in the neighborhood are senior housing, which, in her
view, mitigates the effect of their density upon the community. She also stated that
she has spoken with other developers that were interested in developing the Building
in a less dense way and reiterated that, in her opinion, a less dense renovation would
be “much more appropriate . . . [for] the neighborhood.” (Id. at 243a.)
Jon Farnham, another neighborhood resident, testified that he was “opposed
to the density” of Owner’s proposal. (Id. at 247a.) He disagreed with any suggestion
that the neighborhood is moving toward greater density and explained that he and
many of his neighbors have converted unpermitted two-family dwellings back into
conforming single-family dwellings. He described how, in the last 15 years, the
neighborhood has benefited by increasing investment, which has returned
dilapidated single-family homes to productive use. He characterized the
neighborhood as consisting of “single-family detached and semi-detached houses
with a couple of anomalies that are adjacent to [the P]roperty.” (Id. at 248a.) After
8
stating his opinion that “this project would be detrimental to the public welfare,” Mr.
Farnham explained that he and his neighbors are “not opposed to development. It’s
just that the number 18 strikes us as too great. And I think [it] will change the
character of the neighborhood.” (Id. at 249a-50a.)
Louis Antonio Colon testified that he is concerned about the parking effects
of Owner’s proposal, given that parking is already sometimes difficult to find in the
neighborhood. Like other community members, he expressed his preference for a
less dense development of “four to six condos,” which, he opined, would “bring the
property value up” and “make it look nice.” (Id. at 254a-55a.) Eric Carbone testified
that he opposed Owner’s proposal “based on density and the fact that [the units] are
going to be rental units.” (Id. at 257a.) He expressed his preference for
condominium units that would produce “[s]ome kind of investment in the
neighborhood.” (Id.) Marlene Patterson, another resident, testified that she is
“opposed to the density” of the project and that owner-occupied homes or
condominiums would better “support the stability of the neighborhood.” (Id.
at 258a.) She clarified that, although she does not oppose developing the Property
in general, the proposed density “would impact the quality of life.” (Id. at 259a.)
Austin Edwards testified that he, like his neighbors, is concerned about the potential
parking impacts of Owner’s proposal. Finally, Mary Kraemer adopted the testimony
of her husband, Wickham Kraemer III (discussed above), and added her own
testimony that the existing neighborhood has “plenty of life” without Owner’s
proposal. (Id. at 263a.)
On December 19, 2017, the Board issued an order denying Owner’s request
for a variance. To reach that result, the Board made factual findings in the nature of
9
a summary of the testimony offered at the hearing. Specifically, the Board made the
following relevant finding of fact regarding Mr. Ritter’s testimony:
24. When [Appellants’ counsel] asked whether “18 units
is not necessarily the least amount of variance . . .
that’s required for that property[,]” Mr. Ritter said
“[t]he choice that’s being asked is to tear down the
existing structure, abandon its use, and rebuild it . . . .
[T]his is the least that should be considered[,] given
the fact that the structure is there [and] . . . that it’s
being renovated. [A]nd the hope is to retain it.”
(Board’s Decision at 4 (quoting R.R. at 121a).) The Board then made the following
relevant conclusions of law:
1. . . . . The proposed conversion of the [Building] . . .
requires a use variance.
2. In order to grant a variance, the Board must determine
that each of the criteria set forth at . . .
Section 14-303(8)(e)(.1) [of the Code] are met.
These include:
(a) that denial of a variance would result in
unnecessary hardship;
....
(c) that the requested variance is the minimum
variance necessary to afford relief and the least
modification possible of the regulation in
issue . . . .
....
4. Under . . . Section 14-303(8)(e)(.2) [of the Code], for
the Board to find unnecessary hardship . . . , it must
make all of the following additional findings:
....
(c) [t]hat the use variance, if granted, will not alter
the essential character of the neighborhood . . .
nor substantially or permanently impair the
appropriate use or development of the adjacent
property, nor be detrimental to the public
welfare. . . .
10
....
8. The Board concludes that [Owner] here did not
establish entitlement to the requested use variance.
9. Although the Property is an irregularly shaped lot
improved with an existing structure, [Owner] did not
establish that the requested variance represents the
least minimum variance necessary to afford relief. It
specifically did not establish that conversion to a less
dense use, with fewer units, was not possible.
10. [Owner] additionally failed to establish that the
proposed use would not negatively impact the public
health, safety or welfare.
(Id. at 7-9 (emphasis added).)
Owner appealed the Board’s decision to common pleas. By order dated
February 25, 2019, common pleas reversed the Board’s decision and granted the
requested variance. In its Pa. R.A.P. 1925(a) opinion, common pleas first reasoned
that, based on the decisions of this Court, the Board erred in requiring Owner to
demonstrate that the requested variance was the minimum variance necessary to
afford relief. In the alternative, common pleas reasoned that “[Owner] presented
sufficient evidence and testimony before the [Board]” to meet that standard. (R.R.
at 445a.) Specifically, common pleas noted testimony that the proposed 18-unit use
would be “less dense than the adjacent . . . dwellings” and that “any less[-]dense use
of the Property would require demolishing the [Building].” (Id.) Appellants now
appeal to this Court.
II. ISSUES ON APPEAL
On appeal,5 Appellants raise three issues for our consideration. First,
Appellants argue that, despite common pleas’ contrary conclusion, the Board did not
5
“Where a trial court takes no additional evidence in an appeal from a decision of the
Board, this Court is limited to considering whether the Board erred as a matter of law or abused
its discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012).
11
err when it determined that Owner must satisfy the “least minimum variance”
standard in order to obtain variance relief. Second, Appellants argue that the Board
properly concluded that Owner failed to establish that the requested variance
represents the minimum variance necessary to afford relief. Third, Appellants
contend that the Board’s conclusion that Owner failed to demonstrate that the
proposed variance would not have an adverse effect on the community prevents
issuance of the variance under the Code.
In response, Owner generally argues that the Board erred in failing to consider
the Property’s blighted nature when it denied Owner’s variance request.
Specifically, although Owner concedes that the minimum variance standard applies
to its variance request, Owner asserts that the Board should have applied the standard
differently to the Property because it is blighted and that Owner offered sufficient
evidence to satisfy the standard. Owner also argues that the Board erred in
concluding that Owner’s proposed redevelopment of the Property would negatively
affect the public welfare.
III. DISCUSSION
“A variance is a departure from the exact provisions of a zoning ordinance,”
and “[t]he party seeking the variance must show substantial, serious, and compelling
reasons for the variance request.” S. Broad St. Neighborhood Ass’n v. Zoning Bd.
of Adjustment, 208 A.3d 539, 547 (Pa. Cmwlth. 2019). “When an applicant seeks a
variance for a property located in Philadelphia, the Board must . . . consider the
factors set forth in the [Code].” Singer v. Phila. Zoning Bd. of Adjustment,
29 A.3d 144, 148 (Pa. Cmwlth. 2011). Section 14-303(8)(e)(.1)(.b) of the Code
requires that, before granting any type of variance, the Board must determine that
“[t]he variance, whether use or dimensional, if authorized will represent the
12
minimum variance that will afford relief and will represent the least modification
possible of the use or dimensional regulation at issue [(Minimum Variance Test)].”
(Emphasis added.) Section 14-303(8)(e)(.2)(.c) of the Code requires that, in order
to grant a use variance like the one at issue here, the Board must also determine that
“the use variance, if authorized, will not alter the essential character of the
neighborhood or district in which the property is located, nor substantially or
permanently impair the appropriate use or development of adjacent property, nor be
detrimental to the public welfare.” Thus, if the criteria in any one section of the
Code are not met, the Board must deny the requested variance, regardless of whether
other variance criteria are satisfied.
The Board abuses its discretion “only if its findings are not supported by
substantial evidence,” which is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Valley View Civic Ass’n v. Zoning Bd.
of Adjustment, 462 A.2d 637, 640 (Pa. 1983). The Board, as the ultimate factfinder,
“determines the credibility of witnesses and the weight afforded to their testimony”
and “may accept or reject the testimony of a witness in whole or in part.” Monroe
Land Invs. v. Zoning Bd. of Adjustment, 182 A.3d 1, 9 (Pa. Cmwlth. 2018). An
appellate court errs when it substitutes its judgment on the merits for that of the
Board. Marshall v. City of Phila., 97 A.3d 323, 331 (Pa. 2014). We have described
our deferential standard of review as follows:
When performing a substantial evidence analysis, we must
view the evidence in the light most favorable to the party
that prevailed before the fact[]finder. It is irrelevant
whether the record contains evidence to support findings
other than those made by the fact finder; the critical
inquiry is whether there is evidence to support the findings
actually made.
13
Renaissance Real Estate Holdings, L.P. v. Phila. Zoning Bd. of Adjustment,
199 A.3d 977, 983 (Pa. Cmwlth. 2018) (citations omitted).
We first consider whether the Board correctly concluded that Owner failed to
meet the Minimum Variance Test. Regarding this issue, Appellants emphasize that,
despite past holdings of this Court under earlier versions of the Code, the current
version of the Code, as amended, clearly requires application of the Minimum
Variance Test to both use and dimensional variances. Appellants then claim that the
record contains “no testimony relating to [Owner’s] ability to build fewer than [18]
units.” (Appellants’ Br. at 37.) They argue that common pleas erred when it
searched the record for evidence undermining, rather than supporting, the Board’s
decision, and substituted its judgment for that of the Board in concluding that Owner
satisfied the Minimum Variance Test.
In response, Owner first concedes that, under the Code as presently
constituted, “the . . . [M]inimum [V]ariance [T]est does apply to a use variance.”
(Owner’s Br. at 66.) Owner goes on, however, to argue that, under our decision in
Liberties Lofts LLC v. Zoning Board of Adjustment, 182 A.3d 513 (Pa.
Cmwlth. 2018), the Minimum Variance Test should apply differently to blighted
properties. Owner also relies on language in Liberties Lofts suggesting that the
Minimum Variance Test applies differently or to a lesser extent to use variances (as
compared to dimensional variances). Finally, Owner claims that it provided
adequate testimonial evidence to satisfy the Minimum Variance Test and the Board
articulated no basis for its conclusion that Owner did not make that showing.
The parties are correct that, in its current form, Section 14-303(8)(e)(.1)(.b) of
the Code applies the Minimum Variance Test to both use and dimensional variances.
This is because, in 2013—one year after the City repealed its former zoning
14
ordinance and replaced it with the Code6—the City amended
Section 14-303(8)(e)(.1)(.b) to add the words “whether use or dimensional” and “use
or dimensional” as they now appear in that section.7 Even under the City’s former
zoning ordinance, which did not contain an explicit variance minimization
requirement, the Pennsylvania Supreme Court had long held that, “boiled down,”
the applicable variance criteria essentially implied such a requirement. Marshall,
97 A.3d at 329.
We had held, however, that the earlier, implicit minimization requirement
“pertain[ed] more to dimensional variance requests [than to use variance requests].”
S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115,
124 (Pa. Cmwlth. 2012) (SOSSNA), appeal dismissed as improvidently granted,
97 A.3d 1200 (Pa. 2014). In SOSSNA, we reasoned by analogy to the Pennsylvania
Municipalities Planning Code,8 which requires consideration of minimization only
when it is “relevant.” Id. We concluded that, although the minimization requirement
is clearly relevant for dimensional variances, in the use variance context, other
variance criteria sufficiently constrain the Board’s discretion. We also observed that
we could identify no cases where a minimization requirement was applied in the
context of a pure use variance. Accordingly, we concluded that, under the City’s
prior zoning ordinance, no minimization requirement applied to a pure use variance
application.
6
See Marshall, 97 A.3d at 326 n.2 (discussing repeal and replacement).
7
Bill No. 130725, enacted November 21, 2013, effective December 4, 2013, available at
https://phila.legistar.com/LegislationDetail.aspx?ID=1490416&GUID=1DA675CD-CE51-
42AB-B523-B930544396A9&Options=ID|Text|&Search=130725 (last visited July 22, 2020).
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
15
Thereafter, we decided Liberties Lofts, which addressed a use variance
application made under the current Code as amended in 2013. There, the objector
to the requested variance cited a line of cases requiring a developer to show that it
could not viably build fewer than the proposed number of units. But the objector
did not acknowledge our holding in SOSSNA or offer any basis on which to
distinguish that case. Liberties Lofts, 182 A.3d at 538. We observed that the cases
the objector cited all dealt with either dimensional variances or failure to prove
unnecessary hardship. Then, without acknowledging the 2013 amendment to the
Code, we quoted at length from our discussion in SOSSNA, including our conclusion
that the minimization requirement does not apply to use variances. Id. Ultimately,
however, we based our decision on a different rationale—that the developer had
satisfied the requirement anyway: “In any event, the [zoning board] here
determined: ‘Applicant presented evidence . . . sufficient to establish that . . . the
requested variance is the least necessary to afford relief.’ As explained above, the
record supports the [Board]’s determination. Thus, to the extent the minimization
requirement is present in this context, Applicant satisfied it.” Id. at 538-39
(emphasis added) (citation omitted).
Here, we face the opposite conclusion by the Board: that Owner did not show
satisfaction of the minimization requirement. Thus, we distinguish Liberties Lofts
because, in that case, our discussion of the application of the minimization
requirement was not dispositive—we would have upheld the variance even if we had
concluded that the minimization requirement applied. In addition, we note that here,
and unlike the parties in Liberties Lofts, Appellants offer a compelling reason for
departing from the reasoning in SOSSNA on which we relied in Liberties Lofts: i.e.,
the 2013 amendment, the sole purpose of which was to clarify that the Minimum
16
Variance Test applies with equal force to use and dimensional variances. Given this
analysis, we disagree with Owner’s suggestion that our decision in Liberties Lofts
somehow modified or limited the Minimum Variance Test with respect to use
variances requested under the current Code. For the same reason, we are not
persuaded that the blighted nature of the property at issue in Liberties Lofts implies
that blighted properties are subject to a different version of the Minimum Variance
Test.9 We conclude, therefore, that the Minimum Variance Test under
Section 14-303(8)(e)(.1)(.b) of the Code applies to pure use variance applications
such as the one at issue here.
Regarding the Minimum Variance Test, the Board concluded that Owner “did
not establish” that conversion to a smaller number of units was not possible.
(Board’s Decision at 9.) In so concluding, the Board did not expressly state whether
Owner failed in (1) its burden of production (i.e., failed to provide sufficient
evidence to allow the Board to rule in its favor), or (2) its burden to persuade the
Board to credit and rely upon Owner’s evidence and rule in Owner’s favor.10 Based
upon the nature of the testimony before the Board, it appears that, although that
testimony might have been sufficient to allow the Board to rule in Owner’s favor,
the Board chose not to credit and/or weigh that evidence in Owner’s favor.
9
Neither our Supreme Court in Marshall nor this Court in Liberties Lofts made any explicit
connection between the property’s blighted nature and whether the requested variance was the
minimum relief necessary. Owner asserts such a connection and cites those cases in support, but
Owner does not articulate why such a connection is required under the Code.
“The burden of proof actually includes two different burdens: the burden of production,
10
where the burdened party must produce enough evidence to avoid an adverse legal ruling, and the
burden of persuasion, where the burdened party must convince the fact finder to the required
degree of certainty of the party’s position on that issue.” Topps Chewing Gum v. Workers’ Comp.
Appeal Bd. (Wickizer), 710 A.2d 1256, 1261 n.16 (Pa. Cmwlth. 1998) (internal quotation marks
omitted).
17
In its finding of fact regarding Mr. Ritter’s testimony about the Minimum
Variance Test, the Board noted his statement that 18 units “is the least that should
be considered” because the Building already exists and the alternative to
development would be to demolish the Building. (Id. at 4 (quoting R.R. at 121a).)
On one hand, the statement suggests that an approval of fewer units would not
remedy the hardship and would result in Owner choosing to demolish the Building
instead. On the other hand, that statement could simply be an expression of Owner’s
preference for the proposed layout, and it does not explain why the existing Building
could not viably support fewer units.
Mr. Ritter explained that the requested 18 units—ranging from 800 to
1,000 square feet—would not be an “overuse” of the Property. (R.R. at 106a.) He
did not, however, explain whether 18 units is the minimum viable use of the
Property, nor did he give reasons for his belief that 18 units is not an “overuse.”
Mr. Coyle stated that, in order to “take advantage of what’s there”—i.e., the existing
Building—the “feasib[le]” number of units “approaches . . . 18,” and that he
“wouldn’t [start] out thinking about . . . 10 or 12 or 14 units.” (Id. at 207a (emphasis
added).) But he did not expressly discuss whether “10 or 12 or 14” units would be
a viable (although less profitable) course, and he did not consider a project with a
marginally smaller number of units—17, for example, or 16.
The Board, as factfinder, apparently declined to credit and/or weigh this
testimony in Owner’s favor. Although the Board did not make the credibility and
weight determinations explicit, its conclusion that Owner “did not establish”
satisfaction of the Minimum Variance Test fairly encapsulates those implicit
determinations. (Board’s Decision at 9.) We are not in a position to second-guess
those determinations or substitute our own judgment for that of the Board.
18
See Marshall, 97 A.3d at 331. Thus, viewing the evidence before the Board in the
light most favorable to Appellants, as we must, we conclude that the Board did not
abuse its discretion in concluding that Owner did not establish satisfaction of the
Minimum Variance Test.
IV. CONCLUSION
Because the Board did not err or abuse its discretion in concluding that Owner
failed to demonstrate satisfaction of the Minimum Variance Test, Owner is not
entitled to the requested variance. Common pleas, therefore, erred in reversing the
Board’s decision and granting the variance.11 Accordingly, we will reverse the
decision of common pleas.
P. KEVIN BROBSON, Judge
11
Given this conclusion, we need not address Appellants’ remaining arguments on appeal.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Metal Green Inc. and :
NOA Properties Inc. :
:
v. : No. 373 C.D. 2019
:
City of Philadelphia and :
City of Philadelphia Zoning :
Board of Adjustment and :
Wickham Kraemer III and :
Mary Kraemer, husband and wife :
:
Appeal of: Wickham Kraemer III :
and Mary Kraemer :
ORDER
AND NOW, this 28th day of July, 2020, the order of the Court of Common
Pleas of Philadelphia County, dated February 25, 2019, is REVERSED.
P. KEVIN BROBSON, Judge