South of South Street Neighborhood Ass'n v. Philadelphia Zoning Board of Adjustment

DISSENTING OPINION BY

PRESIDENT Judge PELLEGRINI.

I respectfully dissent because the Philadelphia Zoning Board of Adjustment’s (Zoning Board) Findings of Fact do not support the grant of a variance in this case. As noted by the majority, the Zoning Board stated two reasons why it concluded that Dung Phat LLC had established unnecessary hardship: (1) the building would require extensive reconstruction to be suitable for a modern industrial use; and (2) Dung Phat LLC had unsuccessfully tried to sell the property for an industrial use over several years.

To establish unnecessary hardship, an applicant must prove: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance. SPC Co., Inc. v. Zoning Board of Adjustment of the City of Philadelphia, 773 A.2d 209, 214 (Pa.Cmwlth.2001), appeal denied, 568 Pa. 689, 796 A.2d 320 (2002). However, the Zoning Board’s Findings of Fact 33 and 34 that Mr. Deutsch testified that “existing building, in its present configuration, cannot be used for an industrial use” because it is too small to be suitable, and that it was “dilapidated,” “not occupiable,” and “in need of rehabbing,” do not establish that it cannot be used for any purpose permitted in the G-2 zoning district, that the cost for it to be conforming is prohibitive, or that the property is valueless without the variance.

In addition, it is true that inability to sell after a sustained and vigorous effort to do so is evidence that a parcel is not saleable for a purpose permitted by the zoning regulations. City of Philadelphia Zoning Board of Adjustment v. Earl Scheib Realty Corp., 8 Pa.Cmwlth. 11, 301 A.2d 423, 426 (1973). “The mere placing of a ‘for sale’ sign on the property and listing it with local real estate brokers without quoting a sales price, however, does not evidence ‘the active, prolonged, and specific testing of the marketability of the ground which is essential to demonstrate that it cannot be sold or used for the purpose zoned.’ ” Rubin v. Upper Southampton Township Zoning Hearing Board, 19 Pa.Cmwlth. 469, 338 A.2d 773, 776 (1975) (citation omitted). See also Rees v. Zoning Hearing Board of Indiana Township, 11 Pa.Cmwlth. 461, 315 A.2d 317, 319-20 (1974) (holding that the testimony of the prior owner of a lot that she had tried to sell for seven years was insufficient evidence of an active, prolonged and specific testing of marketability of the lot to support unnecessary hardship). Thus, the Zoning Board’s Finding of Fact 37 that Phat Amot testified that he had listed the property with a broker for approximately five years who tried to sell it as an industrial property is also not sufficient evidence to demonstrate the requisite unnecessary hardship.

Moreover, the Zoning Board’s Findings of Fact 13, 14 and 15 demonstrate that the only uses in the blocks surrounding Dung Phat LLC’s parcel are industrial and residential uses, including an assisted-living facility. Although Finding of Fact 16 notes that commercial uses are “becoming increasingly common” along Washington Avenue, there is no finding indicating the proximity of such uses to Dung Phat LLC’s parcel in the G-2 zoning district or to the residential uses in the surrounding residential zoning districts. Even if a vari-anee was otherwise appropriate, there is no Zoning Board finding that permitting commercial uses for this parcel would be consistent with the existing residential and industrial uses in the area. See Arter v. Philadelphia Zoning Board of Adjustment, 916 A.2d 1222, 1228 (Pa.Cmwlth.), appeal denied, 594 Pa. 691, 934 A.2d 75 (2007) (holding that consideration of whether the proposed use will alter the essential character and nature of a neighborhood is proper under Section 14-1802(l)(c) of the Zoning Code in determining whether to grant a use variance).

Accordingly, unlike the majority, I would reverse the trial court’s order because the Zoning Board’s Findings of Fact do not support the grant of a variance.