E. Nuru v. ZB of Adjustment

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ebrahim Nuru, :
Appellant :
:
v. :
: No. 72 C.D. 2020
Zoning Board of Adjustment : Submitted: March 18, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 16, 2021
Ebrahim Nuru (Nuru) appeals from the December 18, 2019 order of the
Court of Common Pleas of Philadelphia County (trial court) affirming the denial by
the Philadelphia Zoning Board of Adjustment (Board) of use and dimensional
variances requested by Nuru pertaining to his property located at 6719 Upland
Street, Philadelphia, Pennsylvania, 19142 (the Property). Upon review, we affirm.1
1
By order dated December 7, 2020, we noted that the City of Philadelphia was precluded
from filing a brief or participating in oral argument due to its failure to file a brief in accordance
with this Court’s order dated October 15, 2020. See Cmwlth. Ct. Order, 12/7/20.
I. Background
The Property consists of three parcels of land zoned RM-12 for
residential use only.3 Trial Court Op., 7/13/20 at 1, Reproduced Record (R.R.) at
86a. Nuru rented out one house and several unlawful self-storage units on the
Property. Id. In June 2017, Nuru applied to the Philadelphia Department of Licenses
and Inspections (Department) for a zoning/use registration permit to consolidate the
Property’s three lots into a single zoning lot, to replace an existing chain link fence
with a wooden fence, and to use ten existing buildings on the site as follows:
Building 1: Existing single[-]family home to remain.
Building 2: A “site office” with a “handicap accessible
bath for it and other building uses on site.”
Buildings 3-8: Legalization of existing storage units.
Building 9: Auto body repairs with “self[-]contained paint
shop area.”
Building 10: Limousine storage with “mechanical repairs
(limos) with two lifts.”4
2
The acronym “RM-1” evidently denotes the residential multi-family-1 zoning district.
See Phila., Pa., Code § 14-401, Table 14-401-1.
3
Nuru avers that Building 1 is currently being used as residential housing, Building 2 as
an office, Buildings 3-8 as leased storage buildings, and Buildings 9 and 10 as storage and for
minor vehicle maintenance for his limousine business. Nuru’s Br. at 17-19.
4
Regarding Buildings 9 and 10, Nuru later revised his proposal to eliminate “any kind of
auto-repair body shop and paint shop.” Finding of Fact (F.F.) 6, Reproduced Record (R.R.) at 78a
(citing Notes of Testimony (N.T.), 12/20/2017 at 4, R.R. at 20a).
2
Board’s Findings of Fact (F.F.) and Conclusions of Law (C.L.), 5/7/19, F.F. 1, R.R.
at 77a. Nuru’s requests implicated both dimensional and use variances. C.L. 1, R.R.
at 82a.
In October 2017, the Department issued a notice of refusal, determining
that Nuru’s proposed uses were expressly prohibited in the RM-1 zoning district.
F.F. 2, R.R. at 78a. The Department further found that the proposed fence exceeded
the maximum permitted height of four feet along the Property’s street frontage and
that the proposal failed to meet the applicable rear yard depth requirement. Id.
Nuru appealed the Department’s denial to the Board, which held a
public hearing in December 2017. F.F. 3, R.R. at 78a; Trial Court Op., 7/13/20 at 2,
R.R. at 87a. Nuru did not testify or proffer the testimony of any witness. Trial Court
Op., 7/13/20 at 2, R.R. at 87a. Numerous individuals and groups from the
community offered testimony in opposition to the proposed variance, including 68
community members, the Philadelphia Clean Air Council, the Philadelphia Planning
Commission, the Southwest Philadelphia Consortium of Registered Community
Organizations, and state and local elected representatives, including Philadelphia
Councilman Kenyatta Johnson (Councilman Johnson). Trial Court Op., 7/13/20 at
2, R.R. at 87a; see also F.F. 13, R.R. at 80a.
Nuru’s counsel explained that the storage units were leased to
individuals who “keep Christmas supplies and so forth in there” and “come in once
or twice a year.” F.F. 10a,5 R.R. at 79a (quoting Notes of Testimony (N.T.),
12/20/17, at 7, R.R. at 23a. He also submitted a zoning map, which he asserted
demonstrated that the surrounding area was zoned “ICMX,” an industrial
5
The Board included two separate findings of fact numbered 9 through 11. For the sake
of clarity, this opinion refers to the first set as findings of fact 9a through 11a, and the second set
as findings of fact 9b through 11b.
3
commercial mixed-use zoning district. See Phila., Pa., Code Table § 14-403, 14-
403-1; see also F.F. 11a, R.R. at 79a (quoting N.T., 12/20/17 at 6, R.R. at 22a).
Nuru’s counsel stated that “this particular block of Upland Street has approximately
half a dozen other ICMX uses around it.” F.F. 9b, R.R. at 79a (quoting N.T.,
12/20/17 at 6, R.R. at 22a).
Addressing the hardship requirement for the grant of a variance, Nuru’s
counsel stated that “[t]he hardship is related to the fact that we’ve got a site that you
have no street frontage on to get out,” and that “[w]ithout the consolidation and
without the use, you’re going to have 15,000 square [feet of] vacant land here.” F.F.
10b, R.R. at 79a (quoting N.T., 12/20/17 at 8, R.R. at 24a). Nuru’s counsel further
stated that “[n]obody has come forward to put housing on here . . . because it’s an
existing ICMX site, all around it,” and “it would be hard to convince somebody to
come in and use . . . 15,000 square feet of open area for new housing.” F.F. 11b,
R.R. at 80a (quoting N.T., 12/20/17 at 8, R.R. at 27a).
The Board unanimously voted at the conclusion of the December 20,
2017 hearing to deny the requested variance. Trial Court Op., 7/13/20 at 2, R.R. at
87a; see also F.F. 4, R.R. at 78a. Nuru thereafter appealed to the trial court. See
Notice of Appeal, dated 1/9/18, R.R. at 14a. By order dated August 16, 2018, the
trial court reversed the Board’s decision and granted Nuru’s appeal. Trial Court
Order, 8/16/18, R.R. at 60a.
In January 2019, Councilman Johnson filed a petition to intervene and
to reopen the matter nunc pro tunc or, in the alternative, to appeal nunc pro tunc,
which the trial court granted in March 2019. See Trial Court Docket at 5-6, R.R. at
5a-6a. In March 2019, the trial court granted Councilman Johnson’s request,
4
reopening the appeal and vacating its August 16, 2018 order. See Trial Court Docket
at 6, R.R. at 6a.
In May 2019, after the trial court reopened the appeal before it, the
Board issued findings of fact and conclusions of law related to its December 2017
decision. See R.R. at 77a. The Board concluded that the proposed auto repair and
maintenance, business office, and storage uses were prohibited in the RM-1
Residential zoning district. C.L. 1, R.R. at 82a (citing Phila., Pa., Code § 14-602(1)).
The Board also found that the proposal failed to meet applicable requirements for
maximum fence height and minimum rear yard depth, such that permitting the
proposed uses would require both use and dimensional variances. Id. The Board
determined that “[o]n this record, [Nuru] has not [satisfied] . . . the criteria for grant
of either use or dimensional variances [sic],” as set forth in Section 14-303(8)(e).
C.L. 4 & 9, R.R. at 83a-84a (citing Phila., Pa., Code § 14-303(8)(e)). The Board
concluded that Nuru failed to demonstrate that denial of his variance requests would
result in unnecessary hardship, reasoning that “[Nuru’s] claim of hardship [was]
based solely on the unsubstantiated representations of his attorney that the Property
cannot be used for a permitted purpose because of its size and use history and
because of the existence of ICMX[-]zoned parcels in the immediate vicinity.” C.L.
11, R.R. at 84a (citing Phila., Pa., Code § 14-303(8)(e)(.1)(.a)(.2)).
Further, the Board noted that “[Nuru] did not present expert testimony
or other persuasive evidence showing the Property could not be used for a[n] RM-1
compatible use.” C.L. 12, R.R. at 84a. The Board determined that “[Nuru’s] failure
to show hardship [was] sufficient, in itself, to require denial of the requested
variances,” while further noting that “[Nuru] also failed to establish that the
remaining criteria for grant of a variance [were] met.” C.L. 13, R.R. at 84a. The
5
Board also concluded that “[Nuru] did not establish that the requested variances
[were] the minimum necessary to afford relief or that the proposed uses would not
detrimentally impact the public health, safety or welfare.” C.L. 14, R.R. at 84a.
Further, the Board found that Nuru “failed to establish that the proposed uses would
not adversely and substantially affect the implementation of any adopted plan for the
area where the property is located,” noting that “the [Philadelphia] Planning
Commission representative specifically testified that the proposal is inconsistent
with the Commission’s 2035 Plan.”6 C.L. 15, R.R. at 85a (brackets and internal
quotation marks omitted).
On December 18, 2019, following oral argument, the trial court entered
judgment affirming the Board’s decision and denying Nuru’s appeal. See Trial
Court Hearing, 12/18/19 at 1, R.R. at 63a; Trial Court Order, 12/18/19, R.R. at 69a.
This appeal by Nuru followed. In July 2020, the trial court issued an opinion
expounding upon its December 18, 2019 order pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a). See R.R. at 86a. Therein, the trial court observed that
Nuru’s “attorney presented limited conclusory testimony as evidence[7] that his three
[] parcels established an unnecessary hardship based on their layout and use with
respect to the surrounding RM-1 residential neighborhood,” whereas parties
opposed to the requested variance provided extensive testimony. Trial Court Op.,
7/13/20 at 4, R.R. at 89a. The trial court reasoned that “the fact that [Nuru’s] current
6
“Philadelphia 2035 is the comprehensive plan for managing growth and development in
the City of Philadelphia. The staff of the Philadelphia City Planning Commission . . . creates the
plans through an open process that includes outreach to citizens, business associations, institutions
and other city agencies.” Philadelphia 2035: The Vision for Philadelphia’s Growth and
Development, available at https://www.phila2035.org/ (last visited March 8, 2021).
7
We note that the statements of Nuru’s counsel do not constitute testimonial evidence. See
discussion infra, p. 15.
6
usage is illegal and nonconforming does not create a hardship. At best, these are
self-imposed hardships because [Nuru] has blatantly flouted the [Philadelphia Code
of General Ordinances (Code)].” Trial Court Op., 7/13/20 at 8, R.R. at 93a. Further,
the trial court determined that Nuru’s claims that he cannot develop the Property into
a viable, conforming use due to the lot size, and that commercial use would be more
profitable, fail to establish the requisite hardship. Trial Court Op, 7/13/20 at 8-9,
R.R. at 93a-94a (citing Laurel Point Assocs. v. Susquehanna Twp. Zoning Hearing
Bd., 887 A.2d 796, 830 (Pa. Cmwlth. 2005)). The trial court also noted that the
Board based its decision on extensive testimony from community members and
interested parties. Trial Court Op., 7/13/20 at 10, R.R. at 95a. The trial court
determined that Nuru “provided no concrete evidence outside of conspiracy theory
speculation that the [Board’s] reliance on the . . . [testimony of] community members
was mischaracterization.” Trial Court Op., 7/13/20 at 14, R.R. at 99a.
II. Issues on Appeal
On appeal,8 Nuru raises four issues for this Court’s review, which we
paraphrase as follows. First, the Property has unique physical attributes that
establish an unnecessary hardship. Second, the requested variances would legalize
preexisting uses, and without consolidating the three lots, existing buildings are built
across lot lines and one lot has no street access. Third, the proposed uses are not
8
Where a trial court neither conducts a hearing nor receives additional evidence that was
not before the Board, the applicable standard of appellate review is whether the board committed
an abuse of discretion or an error of law. Hertzberg v. Zoning Bd. of Adjustment of City of
Pittsburgh, 721 A.2d 43, 46 (Pa. 1998). The Board abuses its discretion when it makes material
findings of fact not supported by substantial evidence. Id. Substantial evidence is such relevant
evidence as a reasonable mind might find adequate to support a conclusion. Id. Further, “[o]n an
appeal from the grant or refusal of a variance we examine the record only to ascertain whether the
action taken was clearly arbitrary, capricious or unreasonable or in clear violation of positive law.”
Ferry v. Kownacki, 152 A.2d 456, 457 (Pa. 1959).
7
contrary to the public interest and the requested variances would provide the
minimum relief necessary. Fourth, Councilman Johnson mischaracterized Nuru’s
proposed uses of the Property, and the trial court should have given weight to Nuru’s
ownership history. Trial Court Op., 7/13/20 at 3, R.R. at 88a. We address these
issues together.
III. Discussion
Nuru contends that the expense of demolishing existing buildings on
the Property and rebuilding them in accordance with applicable zoning restrictions
“constitutes substantial evidence of unnecessary hardship.” Nuru’s Br. at 13, 18 &
22 (citing O’Neill v. Phila. Zoning Bd. of Adjustment, 120 A.2d 901 (Pa. 1956);
Logan Square Neighborhood Ass’n v. Zoning Bd. of Adjustment of the City of Phila.,
379 A.2d 632, 634 (Pa. Cmwlth. 1997)). Further, Nuru maintains that strict
application of the Code would result in hardship that is unique to the Property
because “[s]ome of the current buildings were built across the lot lines” and “have
been in place for a long time.” Id. at 11. Nuru asserts that “consolidation of the
three lots into one . . . is a logical solution that does not require demolition of sound
buildings, especially where[,] as here, one of the lots has no street frontage.” Id. at
12.
Nuru asserts that the existence of one residence on the Property does
not demonstrate the suitability of the remaining buildings for residential purposes.
Nuru’s Br. at 13. Nuru also takes issue with the trial court’s determination that any
hardship resulting from strict adherence to the Code is “self-imposed,” asserting that
the “buildings, the attributes and the unusual configuration of the [P]roperty have
existed for decades,” such that any hardship was “in no way created” by him. Id. at
13-14. Nuru further contends that although he knew about the zoning requirements
8
before he purchased the Property, that does not mean there is no hardship or that any
hardship is “self-imposed,” because the hardship is the result of natural conditions
on the Property rather than Nuru’s purchase of it. Id. at 14 (citing Wilson v.
Plumstead Twp. Zoning Hearing Bd., 936 A.2d 1061, 1069 (Pa. 2007); Manayunk
Neighborhood Council v. Zoning Bd. of Adjustment, 815 A.2d 652, 657 (Pa. Cmwlth.
2003)).
Factually, Nuru asserts that Buildings 2 through 8 “do not promote
traffic as they are typically only opened a couple of times per year.” Nuru’s Br. at
19. Nuru maintains that “[t]here were no complaints about [his] use of the Property,”
but that “nearly six months after the variance was granted Councilman Kenyatta
Johnson filed a Petition to Intervene and that Petition was granted and a rehearing
ensued.”9 Id. at 23. Nuru also contends his “actual use of the Property . . .
demonstrated that the grant of the variance was not harmful to the health, safety and
welfare of the neighborhood.” Id. at 24. Nuru asserts that he is entitled to the
requested variance because the “Property is currently being put to beneficial use.”
Id. at 25-26. He argues that opponents of the variances suggested multi-family
dwellings or possible eminent domain regarding the Property, disregarding his
ownership and the unique characteristics of the Property and discussing the Property
“as if he were not even present.” Id. at 25-26 (quoting N.T., 12/20/17 at 21-22, R.R.
at 37a-38a). Nuru, therefore, asserts that the denial of the requested variances “was
arbitrary and capricious” and “was not supported by substantial evidence.” Id. at 26.
Further, Nuru alleges that although “[the Board] claims that the denial of the
variances is based on [his] non-conformity with the [Code],” “the evidence in the
9
Nuru’s issues raised on appeal do not include any assertion of error by the trial court in
reopening the matter or in the timing thereof.
9
[r]ecord shows it was based on the desire of some public officials to have residential
housing on [the] [P]roperty.” Id. at 23.
Councilman Johnson counters that Nuru failed to present specific,
concrete, and compelling evidence in support of the requested variances.
Councilman Johnson’s Brief at 15 & 18. He observes that the statements of Nuru’s
counsel did not constitute testimonial evidence and that Nuru failed to provide the
testimony of any fact witness or expert witness. See id. at 16-17 (citing Phila., Pa.,
Code § 14-303(14)(f)). Specifically, “Nuru did not present any evidence concerning
the feasibility of using the Property for a permitted purpose, costs to conform the
Property to a permitted use, or any explanation as to why the residential use currently
existing on part of the Property cannot be extended throughout the Property.”
Councilman Johnson’s Br. at 18. Further, Councilman Johnson maintains that
“[w]hile Nuru argues that one lot needs street frontage, he ignores the fact that he
owns both lots in front of the land[-]locked lot and, as a result, there is no issue with
respect to accessing the street.” Id. at 27.
With respect to the use variance requested to perform limousine repair
and maintenance on the Property, Councilman Johnson asserts that “Nuru’s desire
to use the Property for his personal pecuniary gain by reducing expenses for his
limousine business” fails to establish the requisite hardship. Councilman Johnson’s
Brief at 20. Thus, Councilman Johnson maintains that Nuru is not entitled “to use
his residentially zoned property in a manner that is most economically advantageous
to his unique business interests.” Id. at 21. Councilman Johnson also contends that
the existing lease agreements that violate Philadelphia’s zoning laws constitute, “at
best,” a “self-imposed hardship.” Id. at 21.
The Supreme Court of Pennsylvania has explained:
10
A variance, as the name implies, is a departure or variance
from the exact provisions of a zoning ordinance, and is
granted where a strict enforcement of the literal terms of
the ordinance will result in an unnecessary hardship upon
a particular property over and above the hardship which
may be imposed by the ordinance on all properties in that
community[.]
Brennen v. Zoning Bd. of Adjustment of the City of Connellsville, 187 A.2d 180, 182
(Pa. 1963) (emphasis in original). “The burden on a landowner seeking a variance
is a heavy one, and the reasons for granting the variance must be substantial, serious
and compelling.” Bawa Muhaiyaddeen Fellowship v. Phila. Zoning Bd. of
Adjustment, 19 A.3d 36, 39-40 (Pa. Cmwlth. 2011) (citing Valley View Civic Ass’n
v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983)). “Variances, especially
those authorizing commercial uses in a residential district, should not be generously
granted.” J. Richard Fretz, Inc. v. Hilltown Twp. Zoning Hearing Bd., 336 A.2d
464, 465-66 (Pa. Cmwlth. 1975) (citation omitted); see also Oxford Corp. v. Zoning
Hearing Bd. of Borough of Oxford, 34 A.3d 286, 296 (Pa. Cmwlth. 2011) (holding
that “variances should be granted sparingly and only under exceptional
circumstances”).
“[I]n determining whether unnecessary hardship has been established,
courts should examine whether the variance sought is use or dimensional.”
Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43, 50 (Pa.
1998). In the context of use variances, “unnecessary hardship is established by
evidence that: (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 has no value for any purpose
permitted by the zoning ordinance.” Hertzberg, 721 A.2d at 47 (emphasis omitted).
“To justify the grant of a dimensional variance, courts may consider multiple factors,
11
including the economic detriment to the applicant if the variance was denied, the
financial hardship created by any work necessary to bring the building into strict
compliance with the zoning requirements and the characteristics of the surrounding
neighborhood.” Id. at 50. However, “[m]ere economic hardship will not of itself
justify a grant of a variance.” City of Pittsburgh v. Zoning Bd. of Adjustment of City
of Pittsburgh, 559 A.2d 896, 903-04 (Pa. 1989). Further, “[t]he fact that an increase
or decrease in value will result from the grant or refusa[]l of a variance will not,
standing alone, constitute a sufficient hardship.” Ferry v. Kownacki, 152 A.2d 456,
457 (Pa. 1959). “Property owners do not have a right to utilize land for their highest
and best financial gain.” Soc’y Created to Reduce Urban Blight v. Zoning Bd. of
Adjustment, 804 A.2d 116, 120 (Pa. Cmwlth. 2002).
“When a party seeks a variance for a property located in Philadelphia,
the Board must also consider the factors set forth in the [Code].” Bawa
Muhaiyaddeen Fellowship, 19 A.3d at 39-40. The Code provides that “[t]he Zoning
Board shall grant a variance only if it finds each of the following criteria are
satisfied”:10
(.1) General Criteria.
10
Section 14-1801(1)(c) of the Code provides as follows:
The [Board] may, after public notice and public hearing . . . .
authorize, upon appeal, in specific cases, such variance from the
terms of [] Title [14] as will not be contrary to the public interest,
where, owing to special conditions, a literal enforcement of the
provisions of this Title would result in unnecessary hardship, and so
that the spirit of this Title shall be observed and substantial justice
done, subject to such terms and conditions as the Board may
decide[.]
Phila., Pa., Code § 14-1801(1)(c).
12
(.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 . . . ;
(.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.
(.2) Use Variances.
13
To find an unnecessary hardship in the case of a use
variance, the Zoning 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 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.
(.3) Dimensional Variances.
To find an unnecessary hardship in the case of a
dimensional variance, the Zoning 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.
Phila., Pa., Code § 14-303(8)(e).
14
Nuru maintains that in establishing hardship, an applicant for a variance
need not demonstrate that the property at issue is valueless without the variance or
that the property cannot be used for any permitted purpose. Nuru’s Br. at 17 (citing
Marshall v. City of Phila., 97 A.3d 323, 330 (Pa. 2014)). At least with regard to use
variances, however, that contention is directly contrary to the express requirements
of the Code.11 See Bawa Muhaiyaddeen Fellowship, 19 A.3d at 39-40; Oxford Corp.,
34 A.3d at 296; see also Randazzo v. Phila. Zoning Bd. of Adjustment (Pa. Cmwlth.,
No. 490 C.D. 2016, filed Oct. 12, 2016),12 slip op. at 9 (although standard for
establishing unnecessary hardship for a dimensional variance is more relaxed than
for a use variance, applicant must still establish “each of the conditions set forth in
the zoning ordinance, including unnecessary hardship”).
We agree with the Board that Nuru failed to establish that the denial of
any of his variance requests would result in unnecessary hardship. Nuru declined to
testify at the December 2017 hearing before the Board or to proffer the testimony of
any witness. Section 14-303(14)(f) of the Code provides that “[s]tatements by a
person’s attorney on his or her behalf shall not be considered as testimony, except
where agreed upon by the parties.” Phila., Pa., Code § 14-303(14)(f)). Our review
of the record indicates that the parties entered into no such agreement. Thus, the
statements of Nuru’s counsel at the hearing did not constitute testimonial evidence.
See id.; see also Randazzo, slip op. at 14 n.5 (statements by applicant’s counsel did
11
Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014), was decided under an earlier
version of the Code that did not impose the same requirements for a use variance as the current
version.
12
While this Court’s unreported memorandum opinions may not be cited as binding
precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating
Procedure Section 414(a), 210 Pa. Code § 69.414(a).
15
not constitute testimony, where hearing transcript revealed no agreement to that
effect pursuant to the Code).
Regardless, the remarks made by Nuru’s counsel, even if given
evidentiary weight, failed to establish that strict application of the Code would result
in unnecessary hardship. Nuru’s counsel opined at the hearing before the Board that
“it would be hard to convince somebody to come in and use . . . 15,000 square feet
of open area for new housing” and that with “fencing and some more landscaping”
the proposed commercial use “would be [] appropriate[.]” N.T., 12/20/17 at 6-7,
R.R. at 22a-23a. However, these conclusory remarks failed to establish that “the
[P]roperty has no value for any purpose permitted by the zoning ordinance” or any
other prerequisite to granting a use variance. Marshall, 97 A.3d at 329; see also
Laurel Point Assocs., 887 A.2d at 803 (denial of validity variance to build
commercial office buildings in a residential zoning district was proper where
evidence consisted of conclusory opinions that the property was unsuitable for
residential use). Indeed, Nuru concedes in his appellate brief that he offered no
evidence concerning the feasibility of using the Property as it is zoned. Nuru’s Brief
at 6. Thus, Nuru failed to meet his heavy burden of establishing exceptional
circumstances to justify use and dimensional variances.
For the foregoing reasons, we conclude that the Board acted within its
discretion in determining that Nuru failed to establish that the denial of his variance
requests would result in unnecessary hardship. Thus, the trial court did not err in
affirming the Board’s denial of the requested variances.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ebrahim Nuru, :
Appellant :
:
v. :
: No. 72 C.D. 2020
Zoning Board of Adjustment :
ORDER
AND NOW, this 16th day of April, 2021, the December 18, 2019 order
of the Court of Common Pleas of Philadelphia County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge