In Re: Appeal of Ridge Park Civic Assoc. ~ Appeal of: Ridge Park Civic Assoc.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Ridge Park Civic :
Association :
: No. 1159 C.D. 2020
Appeal of: Ridge Park Civic : ARGUED: November 15, 2021
Association :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: February 24, 2022
Objector, Ridge Park Civic Association, appeals for the second time from an
order of the Court of Common Pleas of Philadelphia County affirming the decision
of the City of Philadelphia’s Zoning Board of Adjustment, which granted the
application for use and dimensional variances filed by Applicants, David Henderson
and Pasquale Bianculli, for a multi-family residential housing project located at 6995
and 6997 Pechin Street in the City’s Roxborough section. The present appeal
follows our remand in In re Appeal of Ridge Park Civic Association, 240 A.3d 1029(Pa. Cmwlth. 2020) (Ridge Park I). Once again, we vacate the trial court’s order
and remand this matter to the trial court for further proceedings.
The relevant background of this matter is as follows. Applicants seek to build
three structures, with three units in each structure, on two lots in an RSA-2
Residential (residential single-family attached-2) zoning district where the
Philadelphia Zoning Code (Zoning Code) permits only one principal structure per
lot and prohibits multi-family use. Zoning Code § 14-401(4)(a). In addition to
dimensional variances,1 they also applied for a use variance to build the desired nine
units.
At the initial hearing before the Board, Applicants sought to establish undue
hardship due to the property’s unique circumstances. These included an elongated
shape with narrow frontage and geotechnical issues necessitating a costly
constructive foundation consisting of a pillar-pier foundation system. Objector’s
representative testified that nine units was “too much density for the space,” having
previously suggested that four units would be appropriate. The City Planning
Commission’s representative opined that nine units was an overuse of the property.
The Board unanimously voted to grant the application, affording great weight
to Applicants’ undisputed evidence pertaining to the cost of dealing with the
challenging geotechnical issues and concluding that the nine units proposed in the
initial application satisfied the minimum variance criterion. Ridge Park I, 240 A.3d
at 1037. In addition, it focused on the qualitative factor that the proposed use would
remain residential, and that the appearance of the units would be similar to single-
family homes with separate entrances.2 Id. The trial court affirmed without taking
additional evidence, stating that the minimum variance criterion was inapplicable to
use variances despite the Zoning Code’s provision to the contrary. Id. at 1031.
In Ridge Park I, we vacated the trial court’s order and remanded for further
proceedings. Noting that Applicants sought a change in the intensity of the permitted
residential use of the property but not a change in the nature of the permitted use, we
1
A front setback of forty-seven feet is required whereas Applicants proposed a seventeen-foot
setback and a maximum curb cut width of twelve feet is permitted whereas Applicants proposed a
sixteen-foot curb cut.
2
In Paganico v. Zoning Hearing Board of the Municipality of Penn Hills, 227 A.3d 949, 956
(Pa. Cmwlth. 2020), we endorsed the board’s reliance upon the same qualitative factor in our
determination that the board did not err in concluding that the minimum variance criterion was
met. Ridge Park I, 240 A.3d at 1037.
2
stated that once the Board concluded that a use variance was necessary to enable the
viable economic use of the property under the applicable provision of the Zoning
Code, it had to ascertain the extent of any variance authorized. Id. at 1035. We
detailed the Board’s inquiry:
Unlike the cases in which a use variance entails only a
qualitative departure from the terms of the ordinance, this
case . . . involves a quantifiable departure. Here, such a
determination entailed ascertaining how many units were
necessary for Applicants to build given the cost of
developing in an area with undisputed geotechnical
issues. In other words, the inquiry required resolution of
the factual issue of a reasonable profit and the minimum
number of units necessary for it to be economically
feasible to proceed.
Id. (emphasis added).
In ascertaining the adequacy of what was done, we stated:
The Board’s factual findings are fully supported and
the record makes clear that the property could not be
viably developed in accordance with the strict terms of the
Zoning Code. Moreover, the factors it cited are clearly
relevant and would provide support for its conclusion that
the variances are the minimum necessary if they were of
the sort lacking any quantifiable measure. Here, however,
in addition to the pertinent qualitative factors, the
necessary departure from the measurable requirements
must also be established. The trial court did not take
additional evidence to amplify the record, apparently
because of its erroneous view that the minimization
doctrine did not apply to use variances. Given the costs
inherent in such a project, including the purchase price
and engineering costs related to challenging geotechnical
issues, as well as the extraordinary costs for the necessary
helical piers, it does not seem unlikely that nine units is the
3
minimum number needed to afford relief. Similarly, the
testimony that the farther from the road the townhomes
were placed, the deeper the bore for the piers would have
to go and the more earth that would have to be displaced,
the reduced setback may well be justified. However, we
cannot substitute our guess as to what is likely for actual
proof.
Id. at 1037-38 (emphasis added). Consequently, we “remand[ed] to the trial court
to make appropriate findings as to the quantitative aspects of the minimum variances
necessary for this to be a viable project.” Id. at 1038.
On remand, the trial court once again affirmed without taking additional
evidence. In support, it reasoned that the existing record was complete and that there
was substantial evidence to support the determination that the granted variances
were the minimum necessary to afford relief. Objector’s second appeal to this Court
followed.
On appeal, the parties’ dispute centers on the nature of our remand in
Ridge Park I and whether the trial court responded appropriately. The remand
directive involved ascertaining whether Applicants’ plan for exactly nine units
satisfied the Zoning Code’s requirement 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 at issue[.]” Ridge Park I, 240 A.3d at 1032 [quoting Zoning Code § 14-
303(8)(e)(.1)(.b)]. Mindful that “the minimum variance criterion is more readily and
practically applicable to quantifiable restrictions, such as dimensional requirements
. . . , rather than those that are not quantifiable, as are most use restrictions (i.e., types
of development)[,]”3 we nonetheless directed on remand that a factual determination
3
Ridge Park I, 240 A.3d at 1033-34 (citation omitted).
4
be made based on actual proof that nine units is the minimum number needed to
afford relief and that the dimensional variances are justified. Ridge Park I, 240 A.3d
at 1037. In so doing, we reiterated that “whether an applicant satisfies the minimum
variance criterion is fact dependent and grounded in an analysis as to whether the
accepted evidence constitutes substantial evidence.” Id. at 1034.
As noted, the burden of submitting actual proof is on Applicants. As they
acknowledge, however, “there is no perfect testimony [in the existing record]
regarding the proposed nine units being the least minimum variance[.]” (Applicants’
Br. at 21.) In that respect, the segment of the transcript that the trial court cites as
support for its statement “that the foundation will cost the same amount, no matter
how many units are built[,]”4 is not the equivalent of evidence that the proposed nine
units constitutes the least minimum variance. The segment in question, where
Applicants’ counsel questions general contractor Pasquale Pellicciotti, provides:
Mr. Pollock [Applicants’ counsel]: [T]alking about
utilities and everything, do the utilities present a challenge
for this development, whether it be one house or whether
it be nine homes?
Mr. Pellicciotti: The utilities also will sit on these
helical piers. There’ll be a channel cut out and there’ll be
like a concrete encasement, and then a concrete
encasement will actually sit on the helical piers and the
gas, electric, sewer will run through.
Mr. Pollock: Okay. And that is something that also
involves a little bit of engineering. Isn’t that correct?
Mr. Pellicciotti: A lot of engineering.
Mr. Pollock: Okay. And that’s something that if
you were to build the two homes that might be allowed as
of right, you’d have to do this --
4
(Jan. 6, 2021 Trial Ct. Op. at 2.)
5
Mr. Pellicciotti: Right.
Mr. Pollock: -- with the helical piers and
channeling out for utilities. Is that correct?
Mr. Pellicciotti: That’s correct.
(May 17, 2018 Hearing, Notes of Testimony “N.T.” at 46-47; Reproduced Record
“R.R.” at 178a-79a.)
Moreover, while Pellicciotti acknowledged that the utilities would present a
challenge for the project whether it be two or nine homes, he did not testify that the
number of units was irrelevant to the cost. He testified that the proposed
development for 9 units would require a total of 147 piers at $6,800 per pier, and
that the costs just for the piers and foundations would be a little less than $1.135
million. (Id. at 44; R.R. at 79a.) When pressed as to whether fewer piers would be
required for fewer homes, Pellicciotti failed to answer. However, the colloquy
between the Board’s chairman and Objector’s counsel is telling:
Mr. Klein [Objector’s counsel]: You were talking
about the cost of these helical piers, how much they cost
to dig and put them in. If you built fewer homes[,] you
would need less [sic] helical piers. Right?
Chairman DiCicco: Well, I think I asked that same
question.
Mr. Klein: Yeah. Correct. If you’re doing two
structures instead of three it --
Chairman DiCicco: Fewer. Yeah. Obviously,
yeah.
(Id. at 52; R.R. at 52a.) Notably, Pellicciotti did not refute the Chairman’s
conclusion.
In sum, while the effort and cost that would have to be expended for the
utilities might be the same for two or nine homes, that is not the equivalent of proving
6
that the proposed nine units constitutes the least minimum variance. The trial court’s
attempt to bootstrap Pellicciotti’s testimony in order to arrive at a determination that
Applicants satisfied their burden is reflective of the struggle that this Court had in
Ridge Park I, thereby leading to our determination that despite establishing the many
challenges in developing the lots, Applicants did not conclusively prove that nine
units was the minimum number necessary to afford relief. Absent actual and more
precise proof on that quantitative issue, Applicants simply cannot meet their burden
with the requisite substantial evidence. Consequently, we once again remand this
matter to the trial court to afford Applicants an opportunity to establish that nine
units and no fewer satisfies the minimum variance criterion. If Applicants choose
to take this opportunity, then they must present the necessary expert testimony and
evidence “required [for] resolution of the factual issue of a reasonable profit and the
minimum number of units necessary for it to be economically feasible [for the
project] to proceed.” Ridge Park I, 240 A.3d at 1035.
Accordingly, we vacate and remand this matter to the trial court in
accordance with the foregoing opinion.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Ridge Park Civic :
Association :
: No. 1159 C.D. 2020
Appeal of: Ridge Park Civic :
Association :
ORDER
AND NOW, this 24th day of February, 2022, the order of the Court of
Common Pleas of Philadelphia County is hereby VACATED. This matter is
REMANDED to the trial court for further proceedings.
Jurisdiction relinquished.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita