Upper Roxborough Civic Assoc. v. ZB of Adjustment, City of Philadelphia ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Upper Roxborough Civic Association, :
Appellant :
:
v. : No. 372 C.D. 2019
: SUBMITTED: March 26, 2020
Zoning Board of Adjustment, City of :
Philadelphia, Joseph Delmonte, and :
David Branigan :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge (P)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 4, 2020
Appellant Upper Roxborough Civic Association (Association) appeals from
the Court of Common Pleas of Philadelphia County’s (Trial Court) March 8, 2019
order, through which the Trial Court affirmed a decision issued by the City of
Philadelphia’s (City) Zoning Board of Adjustment (Board) on December 20, 2017.
In this decision, the Board granted variances sought by Appellee David Branigan
(Branigan) in connection with Branigan’s efforts to develop a property located at
7519 Ridge Avenue in Philadelphia (Property). After thorough review, we vacate
the Trial Court’s March 8, 2019 order and remand this matter to the Trial Court for
proceedings consistent with this opinion.1
1
On December 12, 2019, we precluded the Board, the City, and Joseph Delmonte from
filing briefs or participating in oral argument, due to their respective failures to file briefs in this
matter. Commonwealth Ct. Order, 12/12/19, at 1.
Facts and Procedural History
The Property, which abuts Ridge Avenue in Philadelphia’s Roxborough
section and is currently undeveloped, is roughly 100-feet-wide by 390-feet-deep and
covers 36,261 square feet. Board’s Findings of Fact (F.F.), ¶1. Its terrain contains
steep slopes in some areas, which are a man-made feature predating Branigan’s
ownership. These slopes were created by the previous owner, who dumped an
unspecified quantity of fill on the Property. Id., ¶17.
In 2016, Branigan purchased the Property, which is zoned RSA-3 residential,2
and subsequently filed a zoning/use application with the City’s Department of
Licenses and Inspections (L&I) in November 2016. Id., ¶¶1-2, 4. Branigan’s
application called for a 5-story, mixed use building, with a grocery store on the
ground floor, 22 interior parking spaces, and a total of 60 residential units situated
on the floors above the store. Id., ¶4. L&I denied this application on November 23,
2016, prompting Branigan to appeal to the Board on December 8, 2016. Id., ¶¶5-6.
Prior to the Board taking action to address this appeal, Branigan submitted an
amended application to L&I, in which he proposed to build 4 buildings on the
Property, containing a total of 30 residential units, in the form of 15 duplexes, as
well as 45 accessory parking spaces, 30 of which would be inside the buildings and
15 of which would be located outside. Id., ¶7; Board Hr’g Tr., 8/9/17, at 44, 46;
Reproduced Record (R.R.) at 345a. L&I denied the amended application on May 12,
2017. Board’s F.F., ¶8.
The Board held a hearing regarding Branigan’s appeal on August 9, 2017.
Branigan testified that the Property had been vacant for as long as he could recall
and that there had been a number of unsuccessful attempts to develop it over the
2
“RSA” stands for “residential single-family attached.” Phila. Zoning Code (Zoning Code)
§ 14-401(1)(a)(.1)-(.2).
2
years. Board Hr’g Tr., 8/9/17, at 7-9. According to Branigan, the Property could not
be developed in an economically feasible way that would comply with its zoning
restrictions. Id. at 9-10. As the Property is zoned RSA-3, it could be subdivided into
a number of lots, upon which single-family homes or twin homes could be built by
right. Id. at 10-13. Each home, however, would have a tremendously long backyard,
due to the Property’s dimensions. Id. Branigan also remarked that the market for
single-family homes along that part of Ridge Avenue is “very tough.” Id. at 12-13.
Branigan then pivoted to discussing his amended application, which contained
a revised development proposal (Second Proposal) for the Property. This Second
Proposal required three variances, in order to allow for multifamily residential units,
multiple buildings on one lot, and construction on a steep slope area. Id. at 5.
Branigan explained that he had presented several different revised proposals to the
Association, which is the registered community organization for the part of
Philadelphia in which the Property is situated, and that he had decided to go with the
Second Proposal, which was the one “that was the most accepted of the three [by the
Association’s members].” Id. at 19. The cost of building in line with this Second
Proposal was “substantial[ly]” greater than that forecast for the original, as the
Second Proposal called for erecting structures deeper into the Property, necessitating
increased expenditures to remediate steep slopes and to facilitate utility connections.
Id. at 20-21. Accordingly, Branigan stated that it would be impossible for him to
build this development in an economically viable manner with fewer than 30
residential units. Id. at 20-22, 30. Branigan admitted that he had been fully aware of
the Property’s zoning restrictions, including that it is in the Wissahickon Watershed
Overlay District (Overlay District). The Overlay District covers a large area in the
northwest part of Philadelphia. See Zoning Code § 14-510(4). Of relevance to this
3
matter, this overlay imposes limitations on the percentage of impervious ground
cover a property in this area may have. Id., § 14-510(5)-(6). Branigan also admitted
that he had not purchased the Property with the expectation that he would receive
relief from these restrictions in order to facilitate the Property’s development. Board
Hr’g Tr., 8/9/17, at 23-27.
Logan Dry (Dry) and Hyon Kang (Kang), architectural design professionals
with KCA Design Associates, then testified regarding their involvement in creating
the development proposals for the Property. Both explained that the initial, 60-unit
mixed-use plan had been created after consultations with the City’s Planning
Commission, which had informed Dry and Kang that the Property was going to be
rezoned CMX-2 commercial or RM-1 residential.3 Id. at 32-33, 35-36. However,
after additional meetings with both the Association and the Planning Commission,
the current, 30-unit residential plan (i.e., the Second Proposal) had been adopted by
Branigan. Id. at 33-35. Kang echoed Branigan’s claim that it was not feasible to do
by right development of the Property, whether by building twin or single-family
homes. Id. at 36-38.4 The Property would have to be subdivided first before multiple
homes could be built thereon, which would create oversized lots due to the
Property’s dimensions and the street frontage requirements imposed by RSA-3
zoning. Id. at 37-38. On cross-examination, Kang confirmed that the City’s Planning
Commission had certified that the Second Proposal complied with the Overlay
District’s impervious coverage limitations. Id. at 41. Per the Zoning Code, there are
3
“CMX” stands for “neighborhood commercial mixed-use,” while “RM” stands for
“residential multi-family.” Zoning Code §§ 14-401(1)(a)(.1), 14-402(1)(a)(.1).
4
Kang expressly stated that he was unaware of the financial considerations underpinning
Branigan’s project and consequently could not speak to whether these considerations had affected
the Second Proposal. Board Hr’g Tr., 8/9/17, at 44.
4
five categories of land areas within the Overlay District, each of which are subject
to different limitations on the amount of impervious coverage permitted thereon.
Zoning Code § 14-510(6)(a). Neither the Association nor Branigan dispute that the
Property is in Category 4, which allows a maximum of 45% impervious coverage.
Id.; see Association’s Br. at 31-35; Branigan’s Br. at 40-45. Additionally, Kang
stated that, under the Second Proposal, the buildings would cover 33% of the
Property, while paved areas would cover roughly another 20%. Board Hr’g Tr.,
8/9/17, at 41-42.
George Ritter (Ritter), a land planner with Ruggiero Plante Land Design, then
discussed the planning analysis that had been done in connection with the Second
Proposal. Ritter testified that the City’s Water Department had given preliminary
approval to the stormwater management components of the Second Proposal. Id. at
57. He also expressed his opinion that the “mass and character” of the proposed
duplexes were in keeping with the surrounding area and highlighted the Second
Proposal’s traffic plan, which enabled ingress and egress to and from Ridge Avenue
using only a single driveway. Id. at 66-69, 77-78. When asked whether the Property
could be developed in compliance with its RSA-3 zoning, Ritter replied that the only
by right development that could be done without additional efforts would be to build
one single-family home. Id. at 76. Though two sets of twin houses could theoretically
be built, doing so would require the Property to be subdivided first and would
potentially result in encroachment upon the steep slope areas of the Property,
something which would necessitate variances. Id. at 75-76. In addition, Ritter stated
the buildings would cover 33% of the Property, while 26% of the Property would
remain as open space or be part of a rain garden. Id. at 69-72. Ritter subsequently
expressed his belief that the Second Proposal was “suitable” and that the requested
5
variances were “reasonable.” Id. at 78-79. On cross-examination, Ritter asserted that
stormwater management would be drastically improved across the Property and
specified that such management would be accomplished through a combination of
“pervious” (i.e., porous) paving surfaces and the aforementioned rain garden. Id. at
79-83. Ritter also admitted that those porous surfaces would alter the rate at which
stormwater would enter the ground. Id. at 81.
Next, Branigan called realtor Jayme Feiertag (Feiertag),5 as an expert witness
regarding the housing market in the Roxborough area. Feiertag testified that the
market’s appetite for single-family homes fronting Ridge Avenue was extremely
weak, something which Feiertag attributed in part to the danger posed to young
children by the high volume of vehicular traffic on that road. Id. at 86-94. According
to Feiertag, there was significantly greater demand for mixed use and multifamily
developments along this portion of Ridge Avenue. Id. at 91.
Richard Giordano (Giordano), the Association’s president, was then called to
testify. Giordano articulated why his organization was opposed to Branigan’s
Second Proposal, voicing concerns over stormwater management on the Property,
as well as the density of its proposed housing. Id. at 104-110. In response to
questioning from Board Chairman Frank DiCicco, Giordano expressed his openness
to additional negotiations with Branigan. Id. at 110-11, 116.
The Association’s counsel then asked whether the City’s Planning
Commission had factored in the Second Proposal’s use of porous pavement when it
determined this proposal complied with the Overlay District’s impervious ground
cover limitations. Id. at 119. Paula Brumbelow, a senior planner with the Planning
Commission, responded that the approval had been based upon the specifics of the
5
Feiertag’s name is misspelled in the Board’s hearing transcripts as “Jamie Firetag.”
6
Second Proposal, but that the Planning Commission did not consider porous
pavement as being a type of impervious coverage; in other words, none of the Second
Proposal’s areas of porous pavement had been counted towards the requirement that
no more than 45% of the Property be covered by impervious surfaces. Id.
The Board continued this matter, with the hope that the parties would come to
an amicable agreement regarding the Property’s development. Id. at 119-20.
On November 14, 2017, the Board held a second hearing regarding this
proposed development. Branigan testified that he had met with the Association’s
members during the intervening time period, but said this effort to resolve the matter
had not proved fruitful. Board Hr’g Tr., 11/14/17, at 6-7. Despite this, Branigan had
reworked his development proposal again (Third Proposal), so that it covered the
same footprint as before, but now had 18 residential units instead of 30. Id. at 7, 12-
13.6 Branigan explained that the 30 units from the Second Proposal had all been
rental units, whereas the 18 units in the Third Proposal were all for resale; this shift
from rentals to sales altered the financial calculus for developing the Property,
“[b]arely” making 18 units economically feasible. Id. at 7-8. Discussing the
Property’s terrain, Branigan said that the steep slopes had been created by
individuals who had dumped quantities of fill inside this vacant parcel. Id. at 8-10.
Because of the placement of the steep slopes, Branigan could not build the Third
Proposal in an economically feasible way if he was forced to avoid these slopes. Id.
at 10-12. Branigan claimed this Third Proposal would cost “multiple hundreds of
thousands of dollars more to develop” than his original, 60-unit mixed-use plan,
6
Dry confirmed this by stating at this second Board hearing: “From the August hearing to
here, the actual built footprint, height, building envelope, stayed exactly the same, parking, site
layout. Literally, the only thing that changed in these is reconfiguring of the duplexes to single-
family for the units in the back.” Board Hr’g Tr., 11/14/17, at 20.
7
which called for a single building fronting Ridge Avenue, but said these revisions
had been done in an attempt to be responsive to the Association’s concerns. Id. at
14-17, 27-29.
Next, Giordano expressed the Association’s opposition to Branigan’s Third
Proposal. Giordano said that the Association was still greatly concerned about the
effect of building on the Property’s steep slopes, as well as about stormwater
management and compliance with the requirements of the Overlay District. Id. at
33-34, 36-40, 42-44, 49-50. These concerns, in the Association’s view, remained
completely unaddressed as a result of the development footprint remaining the same.
Id. at 40, 51-52, 78-79. Giordano believed that the Third Proposal did not comply
with the Overlay District’s requirements, because the amount of porous pavement
surfaces on the Property pushed this Third Proposal over the maximum allowed
percentage of impervious coverage. Id. at 44-49.
Ritter, Branigan’s land planner, then expanded upon the testimony he had
offered at the August 2017 Board hearing. He reaffirmed that stormwater
management would be greatly improved throughout the Property as a result of
Branigan’s development and stated that the Third Proposal improved upon the
previous one, as it decreased the development’s housing density and intensity of use.
Id. at 57-65. In addition, Ritter admitted that the Third Proposal used porous paving
elements, but asserted that it fully complied with the Overlay District’s impervious
coverage restrictions. Id.
Following Ritter, Joseph Delmonte (Delmonte), the Property’s previous
owner, offered some additional information about the Property’s history. Delmonte
told the Board that the Property had been in his family for more than 30 years and
that he had been unable to successfully develop the Property during his 12 years of
8
ownership. Id. at 71-72. In addition, Delmonte stated that the Property had been
plagued by individuals using it as a location for illegally dumping materials, so much
so that Delmonte himself had dumped “a few loads of dirt” on the front of the
Property, in an effort to impede unauthorized vehicular access to the Property’s
interior. Id. at 72.
Towards the end of the hearing, Branigan agreed to revise his development
proposal yet another time (Fourth Proposal) and send it to both the Association and
the Board for their consideration. Id. at 91-92, 95-99. The Association agreed to
review this Fourth Proposal and expressly waived, through Giordano, both the
requirement that Branigan post the Property with notice about the Fourth Proposal
and its right to have another hearing before the Board. Id. at 98-99. In addition, it
was agreed that L&I would simply update its denial to reflect the details of
Branigan’s Fourth Proposal, thereby enabling Branigan to keep the Fourth Proposal
before the Board, rather than requiring him to start again from the beginning of the
administrative review process. Id. at 96-98.
Branigan’s counsel sent his Fourth Proposal, which now called for 16
residential units, to the Association’s counsel on November 27, 2017. R.R. at 405a-
408a. On December 6, 2017, Branigan’s counsel transmitted this newest proposal to
the Board, along with a letter in which he asked the Board to promptly grant the
desired variance relief. Id. at 405a.
The Board did so, granting Branigan what the Board characterized as two use
variances via a decision issued on December 20, 2017, one of which authorized him
to construct multifamily residential units, while the other allowed him to build upon
9
the Property’s steep slope areas. Board’s Decision, 12/20/17, at 1; Board’s
Conclusions of Law (C.L.), ¶1.7
On January 19, 2018, the Association appealed the Board’s Decision to the
Trial Court. The Trial Court took no additional evidence and, on March 8, 2019,
affirmed the Board in full. This appeal to our Court followed on March 21, 2019.
Issues on Appeal
The Association raises a number of arguments for our consideration,
pertaining to alleged errors made by the Trial Court in affirming the Board, which
we have revised, reordered, and restated as follows. First, the Board erred by voting
on Branigan’s Fourth Proposal without first providing the legally required public
notice and hearing. Association’s Br. at 39-43. Second, the Board erred in granting
Branigan’s desired variances, as Kang, one of Branigan’s own architectural design
consultants, admitted that two sets of twin homes could be built on the Property by
right, without the need for relief from the Zoning Code. Id. at 27-30. Third, the Board
erred by determining that the Property’s steep slopes are a physical characteristic of
the land that creates an unnecessary hardship, as these steep slopes were man-made
and resulted, at least in part, from the previous owner’s failure to prevent illegal
dumping. Association’s Reply Br. at 3-6. Fourth, the Board erred by finding that the
fact the Property is an “oversized lot” constituted an unnecessary hardship
necessitating variance relief. Association’s Br. at 30-31. Fifth, the Board erred in
concluding that Branigan’s pre-purchase knowledge of the Property’s zoning
limitations did not preclude Branigan from securing variance relief. Id. at 36-39.
7
It is not clear what happened to the third variance that Branigan had sought, regarding
erecting multiple buildings on one lot. However, the Association does not argue on appeal that the
Board erred by implicitly determining that this third variance was not necessary. Hence, we need
not address the substance of this issue.
10
Sixth, the Board erred by concluding that the granted variances are the minimum
necessary to afford relief. Id. at 20-27. Finally, the Board erred by determining that
Branigan’s Fourth Proposal complied with the Overlay District’s requirement that
no more than 45% of the Property be covered by impervious surfaces. Id. at 31-35.
Discussion
Preliminarily, we find the Association’s argument that the Board failed to
provide legally sufficient notice and to hold a hearing regarding Branigan’s Fourth
Proposal to be disingenuous. The Association specifically stated, on the record, that
it did not require any additional pre-decision notice or a hearing from the Board
regarding Branigan’s Fourth Proposal, but now challenges the Board’s Decision on
those very bases by framing the argument in more general terms, as a defense of the
public at-large’s rights (i.e., seeking the reversal of the Board due to the lack of
notice and a hearing for the public at-large, rather than just the Association). Thus,
we will not entertain this spurious argument.
Turning to the substance of this matter, it is well-settled that “variance[s]
should be granted sparingly and only under exceptional circumstances.” Rittenhouse
Row v. Aspite, 917 A.2d 880, 884-85 (Pa. Cmwlth. 2006). Pursuant to the Zoning
Code,
[t]he . . . Board shall grant a variance only if it finds each
of the following criteria are satisfied:
(.a) The denial of the variance would result in an
unnecessary hardship. The applicant shall
demonstrate that the unnecessary hardship was not
created by the applicant and that the criteria set forth
in [Zoning Code] § 14-303(8)(e)(.2) (Use
Variances) below, in the case of use variances, or
the criteria set forth in [Zoning Code] § 14-
303(8)(e)(.3) (Dimensional Variances) below, in
the case of dimensional variances, have been
satisfied;
11
(.b) The variance, whether use or dimensional, if
authorized will represent the minimum variance that
will afford relief and will represent the least
modification possible of the use or dimensional
regulation in issue;
(.c) The grant of the variance will be in harmony
with the purpose and spirit of this Zoning Code;
(.d) The grant of the variance will not substantially
increase congestion in the public streets, increase
the danger of fire, or otherwise endanger the public
health, safety, or general welfare;
(.e) The variance will not substantially or
permanently injure the appropriate use of adjacent
conforming property or impair an adequate supply
of light and air to adjacent conforming property;
(.f) The grant of the variance will not adversely
affect transportation or unduly burden water, sewer,
school, park, or other public facilities;
(.g) The grant of the variance will not adversely and
substantially affect the implementation of any
adopted plan for the area where the property is
located; and
(.h) The grant of the variance will not create any
significant environmental damage, pollution,
erosion, or siltation, and will not significantly
increase the danger of flooding either during or after
construction, and the applicant will take measures
to minimize environmental damage during any
construction.
Zoning Code § 14-303(8)(e)(.1). With regard to use variances in particular,
[t]o find an unnecessary hardship . . . the . . . Board must
make all of the following findings:
(.a) That there are unique physical circumstances or
conditions (such as irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions) peculiar
to the property, and that the unnecessary hardship is
due to such conditions and not to circumstances or
conditions generally created by the provisions of
12
this Zoning Code in the area or zoning district where
the property is located;
(.b) That because of those physical circumstances or
conditions, there is no possibility that the property
can be used in strict conformity with the provisions
of this Zoning Code and that the authorization of a
variance is therefore necessary to enable the viable
economic use of the property;
(.c) 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; and
(.d) That the hardship cannot be cured by the grant
of a dimensional variance.
Id., § 14-303(8)(e)(.2). As for dimensional variances, “[t]o find an unnecessary
hardship . . . the . . . Board may consider the economic detriment to the applicant if
the variance is denied, the financial burden created by any work necessary to bring
the building into strict compliance with the zoning requirements and the
characteristics of the surrounding neighborhood.” Id., § 14-303(8)(e)(.3).
Since the Trial Court took no additional evidence, our standard of review is
restricted to determining whether the Board committed an abuse of discretion or an
error of law. Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637,
639-40 (Pa. 1983). “We may conclude that the Board abused its discretion only if its
findings are not supported by substantial evidence. . . . By ‘substantial evidence’ we
mean such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. at 640 (citations omitted).
In light of this limited standard of review, we must avoid the inclination to
measure and assess the multitude of factors and considerations that support a zoning
ruling, and “must exercise self-restraint as to substituting our opinions far removed
13
from the particular zoning hearing for the well-considered decision of [the
Board].” Cohen v. Zoning Bd. of Adjustment of City of Phila., 276 A.2d 352, 355
(Pa. Cmwlth. 1971). “It is, after all, the sole function of the Board, in the
performance of its role as fact finder, to evaluate witness credibility and assign
evidentiary weight.” Lower Allen Citizens Action Grp., Inc. v. Lower Allen Twp.
Zoning Hearing Bd., 500 A.2d 1253, 1258 (Pa. Cmwlth. 1985) (punctuation
omitted). Indeed, the “Board as fact finder is the ultimate judge of credibility and
resolves all conflicts in the evidence,” Eichlin v. Zoning Hearing Bd. of New Hope
Borough, 671 A.2d 1173, 1175 (Pa. Cmwlth. 1996), and has “the power to reject
even un-contradicted testimony if it finds it lacking in credibility.” Lower Allen, 500
A.2d at 1258.
First, the Association correctly asserts that Kang, one of Branigan’s
architectural design consultants, essentially confirmed that two sets of twin homes
could theoretically be built on the Property without the sought-after variance relief.
The Association, however, ignores the well-settled proposition that, “in establishing
[unnecessary] hardship, an applicant for a variance is not required to show that the
property at issue is valueless without the variance or that the property cannot be used
for any permitted purpose.” Marshall v. City of Philadelphia, 97 A.3d 323, 330 (Pa.
2014). Indeed, Branigan himself never claimed that it was physically impossible to
develop the Property in conformance with the Zoning Code; rather, he stated that it
was “[e]conomically not feasible” to do so. Board Hr’g Tr., 8/9/17, at 10. Branigan’s
contention was supported by Feiertag, Branigan’s expert witness on the real estate
market in Roxborough, who testified as to how difficult it is to sell single-family
homes on Ridge Avenue in the vicinity of the Property. While it is true that “mere
economic hardship will not [in and] of itself justify a grant of a variance . . . [it
14
remains that] economic factors are relevant, albeit not determinative, in a variance
assessment.” Marshall, 97 A.3d at 330-31; see also Allegheny W. Civic Council, Inc.
v. Zoning Bd. of Adjustment of the City of Pittsburgh, 689 A.2d 225, 227 (Pa. 1997)
(“Unnecessary hardship [can be] established by evidence that . . . the property can
be conformed for a permitted use only at a prohibitive expense.”). Kang’s admission,
therefore, does not in itself vitiate the Board’s choice to grant the desired variances.
Next, the Association’s arguments regarding the Property’s man-made steep
slopes and oversized dimensions, specifically that they do not constitute physical
characteristics of the land that would justify variance relief, are respectively waived
and without merit. The Association has waived its ability to raise the steep slope
issue, because it did not do so first before either the Board or the Trial Court. See
Newtown Square E., L.P. v. Twp. of Newtown, 38 A.3d 1008, 1017 (Pa. Cmwlth.
2011), aff’d, 101 A.3d 37 (Pa. 2014); In re McGlynn, 974 A.2d 525, 534 (Pa.
Cmwlth. 2009); Pa. R.A.P. 302(a). As for the Property’s dimensions, the Association
mischaracterizes the Board’s logic by stating that the Board “reason[ed] . . .
variance[s] [were] warranted because the . . . Property is an ‘oversized lot.’”
Association’s Br. at 30. In reality, the Board concluded that
[t]he Property is an oversized, exceptionally deep,
unevenly graded lot fronting on a highly trafficked [sic]
street. It has been empty and undeveloped for decades and
[Feiertag] testified to the difficulty of selling single[-
]family homes located on Ridge Avenue. . . . [T]hese
circumstances are sufficient to establish the hardship
required for grant of a variance.
Board’s C.L., ¶¶9-10. Thus, the Board made clear that the Property’s size was but
one of multiple reasons, each of which was backed by the evidentiary record, for
why it determined an unnecessary hardship existed and that granting the variances
was warranted.
15
Similarly, the Association’s claim that Branigan’s pre-purchase knowledge of
the Property’s zoning restrictions prevents him from obtaining variance relief is
without merit. The Association argues that the Property’s physical characteristics do
not preclude Zoning Code-compliant development and the Board erred in
concluding otherwise. Association’s Br. at 36-39. In the Association’s view,
Branigan’s request for variances was rooted in his desire to get the maximum
financial return on his purchase of the Property, in spite of his full, pre-purchase
awareness of the Zoning Code’s regulations. Id. at 37-39. It is true that “pre-purchase
knowledge of zoning restrictions limiting development, without more, does not
create a hardship.” Wilson v. Plumstead Twp. Zoning Hearing Bd., 936 A.2d 1061,
1069 (Pa. 2007) (quoting Manayunk Neighborhood Council v. Zoning Bd. of
Adjustment of Phila., 815 A.2d 652, 657 (Pa. Cmwlth. 2002)). However, as we have
already noted, the Board gave multiple, record evidence-supported reasons for why
it determined that unnecessary hardship inhered to the Property and justified
granting the variances sought by Branigan. Therefore, Branigan’s pre-purchase
knowledge of the Property’s zoning restrictions does not render the Board’s
Decision erroneous or an abuse of discretion.
The Association correctly asserts that the minimization requirement of the
Zoning Code’s variance test8 must be applied to requests for use variances. This is
true, even though use variances’ inherently qualitative nature (i.e., pertaining to
types of development, not characteristics like distance or size) makes it difficult to
define what constitutes minimization in this context. See In re Appeal of Redeemed
Christian Church of God, Living Spring Miracle Ctr. (Pa. Cmwlth., No. 930 C.D.
8
I.e., that a variance may only authorize the minimum deviation from the Zoning Code’s
strictures that is necessary to provide relief.
16
2015, filed December 28, 2016), slip op. at 18 n.7, 2016 WL 7449224, at *7 n.7;9 S.
of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 124
(Pa. Cmwlth. 2012). Nevertheless, we must recognize that the Zoning Code
expressly prohibits the Board from granting a variance unless the Board determines
that “[t]he variance, whether use or dimensional, if authorized will represent the
minimum variance that will afford relief and will represent the least modification
possible of the use or dimensional regulation in issue[.]” Zoning Code § 14-
303(8)(e)(.1)(.b). The Board followed this dictate and concluded that
the variances requested [by Branigan] are the minimum
necessary to afford relief. [Branigan] repeatedly revised
the proposal and decreased its density in an effort to gain
community support. The final version approved by the
Board places 16 dwellings on a lot that is more than 36,000
square feet in size. The proposed development meets all
applicable dimensional requirements, provides more than
the required number of parking spaces, and is designed to
mimic the single-family massing of nearby residential
properties.
Board’s C.L., ¶13. In light of the evidentiary support in the record for these
assertions, as well as our limited standard of review and the challenge inherent to
determining the minimum necessary use variance in a given situation, we hold that
the Board did not err or abuse its discretion by determining that the sought-after
variances10 afforded the minimum relief required to enable the Property’s
development.
9
See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code §
69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value).
10
The Board characterized both of the granted variances as use variances. Board’s C.L.,
¶1. However, this is not entirely correct, as a steep slope variance is essentially a “hybrid,” being
neither a dimensional variance nor a use variance. Pohlig Builders, LLC v. Zoning Hearing Bd. of
17
Finally,11 we agree with the Association that the Board erroneously
determined that Branigan’s Fourth Proposal complied with the requirement that no
more than 45% of the Property be covered by impervious surfaces. When Branigan
submitted his initial zoning/use application to L&I, the Zoning Code defined
“impervious coverage” as
[a]ny building, pavement, or other material that impedes
the natural infiltration of surface water into the soil.
Impervious ground cover includes, but is not limited to,
structures, swimming pools, paved and other non-
permeable patios, walks, driveways, parking areas, streets,
sidewalks, and any other non-permeable ground cover.
Zoning Code § 14-203(154). Given that Ritter, Branigan’s land planner, admitted
that the porous elements altered the rate at which stormwater would infiltrate the
ground, Board Hr’g Tr., 8/9/17, at 81, there is no dispute that these surfaces
Schuylkill Twp., 25 A.3d 1260, 1267 (Pa. Cmwlth. 2011). Steep slope ordinances are designed to
protect natural resources; requesting a variance therefrom thus “falls into a grey area[,]” as the
protection of natural resources “is not like setbacks or other traditional [zoning restrictions for
which] dimensional variances [are appropriate]” and does not directly implicate the legally
authorized uses of a property. Zappala Grp., Inc. v. Zoning Hearing Bd. of the Town of
McCandless, 810 A.2d 708, 711 (Pa. Cmwlth. 2002). Steep slope variances have “a less stringent
hardship requirement” than use variances. Pohlig, 25 A.3d at 1267.
The Association did not challenge the Board’s mischaracterization of the granted steep
slope variance. However, even if it had, we would have held that the steep slope variance was not
granted in error. This is because there is substantial evidence in the record, specifically Branigan’s
testimony regarding his repeated efforts to decrease the density and scale of his proposed project
while retaining some degree of financial feasibility, supporting the Board’s conclusion that the
steep slope variance it gave to Branigan afforded the minimum relief necessary to enable the
Property’s development.
11
The Association also asserts that the Trial Court erred by ruling that the Zoning Code’s
minimization requirement is not applicable to use variances. Association’s Br. at 22-24. This error
by the Trial Court is irrelevant at best and harmless at worst, given that our standard of review in
this matter mandates that we review the Board’s Decision for legal error and the Board, as already
noted, properly applied this minimization requirement to Branigan’s Fourth Proposal.
18
constitute “impervious coverage” under the then-applicable portions of the Zoning
Code.12 Azoulay v. Phila. Zoning Bd. of Adjustment, 194 A.3d 241, 254 (Pa. Cmwlth.
2018). There is thus a strong likelihood both that L&I should have denied Branigan’s
Fourth Proposal, for noncompliance with the Overlay District’s impervious
coverage limitations, and the Board erred by failing to correct L&I’s mistake. See
Board’s C.L., ¶¶14-15. This is in no small part because, as already noted, Ritter
himself testified that the Second and Third Proposals called for extensive usage of
porous paving elements, while Paula Brumbelow stated that the Planning
Commission had not considered porous pavement to count as impervious coverage
in the Overlay District. See Board Hr’g Tr., 8/9/17, at 79-83, 119; Board Hr’g Tr.,
11/14/17, at 57-65.
It is unclear, however, whether these porous elements tip the Fourth Proposal
into noncompliance with the 45% impervious coverage limitation. The Board did
not make a factual finding as to the precise amount, in percentage or square footage,
of area covered by porous elements in the Fourth Proposal. Nor is the answer readily
12
Section 14-203(154) of the Zoning Code was amended after the Association appealed to
the Trial Court, but before the Association’s subsequent appeal to our Court. See Phila., Pa., City
Council Bill No. 180346-A § 14-203(154) (July 18, 2018). As a result, “impervious coverage” is
now defined as “[a]ny building, pavement, or other material that substantially bars the natural
infiltration of surface water into the soil. Manufactured materials demonstrated to be pervious
shall not be considered impervious ground cover. The Commission may promulgate regulations
regarding the types of cover that may be considered impervious, consistent with the intent of this
definition.” Zoning Code § 14-203(154) (language added by amendment italicized). Even so, this
revised definition was not implemented retroactively. See City Council Bill No. 180346-A § 2
(stating “[t]his [o]rdinance shall take effect immediately”). Consequently, we must apply the older
definition in this situation.
19
apparent on the face of the record. Therefore, a remand is necessary, so that the
Board can resolve this issue.13
Conclusion
Accordingly, we vacate the Trial Court’s March 8, 2019 order and remand to
the Trial Court, with instructions that it further remand this matter to the Board, with
instructions that the Board appropriately address whether Branigan’s Fourth
13
Branigan argues that the Association waived this issue, because the Association did not
appeal L&I’s initial failure to deny Branigan’s zoning/use application for noncompliance with the
Overlay District’s impervious coverage limitations, as well as because the Association presented
no evidence establishing such noncompliance. Branigan’s Br. at 40-41, 43-44. We disagree.
Requiring the Association to both appeal L&I’s denial of Branigan’s zoning/use application, to
which it was not a party, with which it was not served, and by which it was not aggrieved, and to
limit the challenges it raised thereto to the four corners of the refusal, would raise serious due
process concerns. See Soc’y Hill Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178,
1190-93 (Pa. Cmwlth. 2012). Furthermore, the Association repeatedly questioned before the Board
whether Branigan’s development proposals complied with the applicable impervious coverage
limitations and it is highly likely, as shown by the currently constituted record, that the Board
erroneously determined that Branigan’s Fourth Proposal complied with these limitations.
Branigan also argues that Azoulay, which interpreted for the first time the Zoning Code’s
definition of “impervious coverage” as encompassing porous elements, should not be applied here
because it was decided after the Board had made its Decision, and that he is “entitled to have the
case law applied to [him] that was in place at the time the [Board’s D]ecision was rendered, not
subsequent case law that was not binding at the time.” Branigan’s Br. at 41. Branigan cites no law
in support of this argument, nor does he identify what case law he wishes to have us follow instead
of Azoulay. Simply put, we have applied here the relevant parts of the Zoning Code, as they were
written at the time of Branigan’s initial zoning/use application, as well as during his subsequent
appeal to the Board. The result may be adverse to Branigan’s interests, but that is a function of
those Zoning Code provisions, not the case law springing forth from them. “Like statutes, the
primary objective of interpreting ordinances is to determine the intent of the legislative body that
enacted the ordinance. . . . Where the words in an ordinance are free from all ambiguity, the letter
of the ordinance may not be disregarded under the pretext of pursuing its spirit.” Adams Outdoor
Advert., LP v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006)
(internal citations omitted).
20
Proposal complies with the Zoning Code’s impervious coverage limitations for the
Overlay District.
__________________________________
ELLEN CEISLER, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Upper Roxborough Civic Association, :
Appellant :
:
v. : No. 372 C.D. 2019
:
Zoning Board of Adjustment, City of :
Philadelphia, Joseph Delmonte, and :
David Branigan :
ORDER
AND NOW, this 4th day of May, 2020, the Court of Common Pleas of
Philadelphia County’s (Trial Court) March 8, 2019 order is hereby VACATED. It is
FURTHER ORDERED that this matter is REMANDED to the Trial Court for
further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge