IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Ridge Park Civic :
Association : No. 420 C.D. 2019
: ARGUED: June 9, 2020
Appeal of: Ridge Park Association :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: September 28, 2020
Objector, Ridge Park Civic Association,1 appeals 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.2 We vacate the trial court’s order and remand for further proceedings.
The property at issue consists of two adjacent parcels located at 6995
and 6997 Pechin Street in the City’s Roxborough section. At 6995 Pechin Street,
there is one single-family ranch house built in 1951. (Board’s May 16, 2018
Decision, Finding of Fact “F.F.” Nos. 1 and 6.) The parcels are zoned RSA-2
Residential, which stands for “residential single-family attached-2” under the
Philadelphia Zoning Code (Zoning Code). Zoning Code § 14-401(1)(a). Applicants
1
It appears that Objector inadvertently omitted the word “Civic” from the caption of its April
2019 notice of appeal to this Court. See, e.g., Objector’s May 3, 2019 Docketing Statement ¶ 4
reciting, “Appellant Ridge Park Civic Association filed a timely Notice of Appeal to the
Commonwealth Court.”
2
In November 2019, the City of Philadelphia filed a notice of non-participation.
proposed consolidating the two parcels, demolishing the existing house, and erecting
nine single-family townhomes in three sets of three. Each three-story townhome
would consist of approximately 2100 square feet of floor space and, inter alia, have
four bedrooms, a basement, a porch, and one parking space per unit. (F.F. Nos. 1, 9
and 11.) The development would feature one main vehicular entrance/exit and one
parking space for handicapped accessibility. (F.F. No. 6.) In addition, a
homeowners’ association would be formed. (F.F. No. 9.)
The City’s Department of Licenses and Inspections refused the
application. (Department’s Feb. 13, 2018 Refusal; Reproduced Record “R.R.” at
178-79.) The Department refused the request because Applicants proposed three
structures, with three townhomes in each structure, whereas the zoning district
permits no more than one principal structure per lot and prohibits multi-family use.
Zoning Code § 14-401(4)(a). By right, Applicants could build one single-family
home on each lot. The Department refused the request for dimensional variances
because 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. (F.F. No. 2.)
On appeal to the Board, Applicants described the property “as an
elongated lot with narrow frontage along Pechin Street and as adjacent at its rear lot
line ‘to a commercial financial institution which changes the nature and tenor of the
neighborhood.’”3 (F.F. No. 3.) At the hearing, Applicants sought to establish undue
hardship due to the property’s unique circumstances. They presented the testimony
of David Henderson, one of the owners; Raymond Tran, a real estate broker; Joseph
Mulvihill, a licensed professional engineer; and Pasquale Pellicciotti, general
3
(Applicants’ March 13, 2018 Appeal to the Board; R.R. at 173-77.)
2
contractor for the project. Henderson testified as to the overall details of how the
development would be structured and what it would include. (F.F. Nos. 9-11.) Tran
testified as to the lack of availability of the type of houses proposed. (F.F. No. 32.)
Mulvihill testified as to the geotechnical issues that rendered the property
challenging for building purposes and presented a report pertaining to the need for a
constructive foundation consisting of a pillar-pier foundation system. (F.F. Nos. 16-
18 and 22-23.) Pellicciotti testified that each pier would cost about $6800, that 147
piers would be required, and that the total cost of the piers and foundations would
be a little less than $1.135 million. (F.F. Nos. 27 and 28.)
By way of opposition, Objector’s vice president, Marlene Schleifer,
testified that the neighborhood consisted of detached single-family homes and that
the proposed development was “too much density for this space.” (F.F. Nos. 36 and
37.) Previously, Objector had suggested to Applicants that four homes would be
appropriate. (F.F. No. 34.) A City Planning Commission representative, Martin
Gregorski, testified as to the agency’s position that nine units constituted an overuse
of the property. (F.F. No. 42.) Additionally, two neighbors testified. Of note, one
of them testified that several of the neighbors had plans to buy the property twenty
years ago to extend their respective yards but had not intended to build anything due
to the soil issues and the cost of pilings. (F.F. Nos. 40 and 41.)
Subsequently, the Board unanimously voted to grant the application.
Without taking additional evidence, the trial court affirmed. In so doing, the trial
court determined that the variance criterion pertaining to the minimum variance
necessary to afford relief (minimum variance criterion or minimization requirement)
was inapplicable to use variances despite the provision in Section 14-
3
303(8)(e)(.1)(.b) of the Zoning Code to the contrary. Objector’s appeal to this Court
followed.4
Pursuant to the Zoning Code:
The . . . 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;
(.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;[5]
(.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
4
Where the trial court takes no additional evidence, we are limited to determining whether
the Board committed an error of law or made findings of fact which are not supported by
substantial evidence. Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504 (Pa.
Cmwlth. 2018). Substantial evidence is defined as relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Id. If the record contains substantial evidence, this
Court is bound by the Board’s findings that result from the resolution of credibility and conflicting
testimony. Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260, 1266
(Pa. Cmwlth. 2011).
5
In 2013, City Council amended the Zoning Code to clarify that the minimum variance
criterion applied to both use and dimensional variances.
4
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)(.a)-(.h) (emphasis added) (footnote added).
With regard to use variances in particular, the Zoning Code provides:
To 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
this Zoning Code in the area or zoning district where
the property is located;
5
(.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)(.a)-(.d) (emphasis added).6
As for dimensional variances, the Zoning Code states that “[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 [any existing] building into strict compliance with the zoning
requirements[,] and the characteristics of the surrounding neighborhood.” Id., § 14-
303(8)(e)(.3).
Objector first challenges the trial court’s alternative holding that the
minimum variance criterion is inapplicable to use variances.7 We agree that this
6
In the present case, the criteria found in Section 14-303(8)(e)(.2) of the Zoning Code
essentially mirror the ones found in Section 910.2 of the Pennsylvania Municipalities Planning
Code (MPC), Act of July 31, 1968, P.L. 1329, as amended, added by Section 89 of the Act of
December 21, 1988, P.L. 1329, 53 P.S. § 10910.2, and those found in the ordinances of most
municipalities. Moreover, the minimization requirement stated in the MPC simply refers to
variances, and does not in any way suggest that it relates only to dimensional variances.
7
(Trial Court’s Aug. 1, 2019 Op. at 6.) The court stated that its decision was primarily based
on a determination that the minimum variance criterion was satisfied. (Id. at 5-6.)
6
determination is erroneous. As noted, Section 14-303(8)(.e)(.1)(.b) of the Zoning
Code specifically provides that the minimum variance criterion is applicable to both
use and dimensional variances. Additionally, even absent the language in the City’s
Zoning Code, this Court recently clarified that the minimum variance criterion
applied to use variances. Paganico v. Zoning Hearing Bd. of the Municipality of
Penn Hills, 227 A.3d 949, 954 (Pa. Cmwlth. 2020); see also Zelienople Borough v.
Zelienople Borough Zoning Hearing Bd. (Pa. Cmwlth., No. 671 C.D. 2019, filed
June 23, 2020), slip op. at 11 (analyzed whether applicant’s testimony was sufficient
to support conclusion that use variance satisfied minimum variance criterion) and
Upper Roxborough Civic Ass’n v. Zoning Bd. of Adjustment, City of Phila. (Pa.
Cmwlth., No. 372 C.D. 2019, filed May 4, 2020), slip op. at 18 n.10 (characterized
trial court’s ruling that the Zoning Code’s minimum variance criterion was
inapplicable to use variances as irrelevant and/or harmless error).8
As a practical matter, the minimum variance criterion applies to use
variances despite the fact that, generally, “a use variance marks a qualitative rather
than a quantitative departure from an existing ordinance” and “a minimum variance
is [more] difficult to assess in use variance cases [than in] dimensional variance
cases[.]” Paganico, 227 A.3d at 954-55. In other words, the minimum variance
criterion is more readily and practically applicable to quantifiable restrictions, such
as dimensional requirements (i.e., distance or size), rather than those that are not
quantifiable, as are most use restrictions (i.e., types of development). See S. of S. St.
Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 124 (Pa.
8
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported
decisions are not binding precedent but may be cited for persuasive value. 210 Pa. Code §
69.414(a).
7
Cmwlth. 2012).9 Of course, 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.
Several cases provide guidance for assessing the minimum variance
criterion in the context of use variances. In Paganico, Veterans Place sought a use
variance to build a group care facility and fourteen micro homes for homeless
veterans on property zoned R-1 Residential in Penn Hills. The triangular-shaped
property, consisting of 3.7 acres of vacant land with uneven topography and a
centrally located sewer easement, formerly served as a sewage treatment plant and
currently as a dump for fill. In determining that the use variance satisfied the
minimum variance criterion, we noted the zoning hearing board’s reliance on
testimony to the effect that the proposed use was less intensive than a multitude of
conditional uses permitted under the ordinance at issue and would have a minimal
impact on the use of neighboring property. In other words, because the proposed
use of a group care facility was substantially similar to permitted conditional uses
such as a church or a non-profit community facility, it was deemed to have a minimal
impact on the use of neighboring property. Paganico, 227 A.3d at 955. Thus, once
it is established that use of the property in strict conformance with the ordinance is
not viable, the minimum variance criteria is met by showing that of all the viable
alternatives, the proposed use is the least departure from the terms of the ordinance,
or the most similar to the uses in the surrounding neighborhood.
In addition, in Paganico we cited the zoning hearing board’s rationale
for determining that the granted variance satisfied the minimum variance criterion:
9
Disapproved on other grounds by Scott v. City of Philadelphia Zoning Board of Adjustment,
126 A.3d 938 (Pa. 2015).
8
[1] Residential uses were not possible . . . [due to
excavation costs related to uncompacted fill full of large
construction materials and the sewer easement] . . . .
Conditional uses are not possible consistent with the
[ordinance] . . . . The same problems apply to special
exceptions such as funeral home[s] or Planned Residential
Developments. Senior Citizen housing is not
economically feasible . . . .
[2] A traffic study was presented . . . that established that
the development will have a negligible effect on the area.
....
[3] The proposed use . . . is essentially residential. The
only non-residential aspect of this use is the group care
building, but this use is generally consistent with the
residential character of the neighborhood.
Id. at 956.
Zelienople Borough, decided subsequent to Paganico, is also
instructive. In Zelienople Borough, the applicant sought to construct a single-story
duplex on two vacant and undersized parcels where a duplex was neither a permitted
nor a conditional use under the Borough’s ordinance. The applicant testified that the
project was consistent with maintaining the essential character of the neighborhood
and not detrimental to the public welfare because the duplex would look very similar
to other dwellings in the zoning district and there would be 1000 square feet on each
side with a garage in the front. Additionally, he opined that the duplex would be
nice looking, testifying: “[R]ight now, it’s just an empty lot. It would be as nice []
looking as the apartment building that it’s going to be right next to . . . . And . . .
there [are] a lot of smaller homes on that street . . . . [I]t would be in line with what’s
in the neighborhood now and across the street . . . .” Zelienople Borough, slip op. at
9. The zoning hearing board accepted the testimony as support for its conclusion
that the requested use variance satisfied the minimum variance criterion, reasoning
9
that it was the minimal variance necessary to make a reasonable use of the two
undersized lots. Reciting that a use variance marks a qualitative rather than a
quantitative departure from an existing ordinance, we agreed with the zoning hearing
board that the applicant’s testimony was sufficient. In so concluding, we reasoned:
Allowing a duplex on two lots after they are combined into
one does not increase the density of use over the permitted
single-family home on each of the two lots. Since single-
family homes cannot be built on the two undersized lots,
allowing a single duplex on the larger merged lot is the
minimum variance necessary to afford relief.
Zelienople Borough, slip op. at 11.
In the present case, 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. Once the Board determined that a use variance was “necessary to
enable the viable economic use of the property[,]”10 it had to ascertain the extent of
any variance authorized. Unlike the cases in which a use variance entails only a
qualitative departure from the terms of the ordinance, this case, like Zelienople
Borough, 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.
In unanimously voting to grant Applicants’ application, the Board
concluded:
10
See Zoning Code § 14-303(8)(e)(.2)(.b).
10
10. The Property presents significant, well[-]
documented geotechnical issues that impede and
significantly increase the costs of development.
11. The Board found the testimony of [Applicants’]
witnesses to be credible, persuasive, and largely
uncontradicted. The testimony established that the
Property, due to unique physical conditions, cannot be
developed in strict compliance with Zoning Code
requirements.
....
14. The Board additionally concludes that the
variances requested are the minimum necessary to afford
relief, and that the development will not detrimentally
impact the public health, safety or welfare.[11]
15. With respect to the “minimum necessary”
requirement, the Board notes that Applicants are
proposing a residential use in a residentially zoned zoning
district. While classified as “multi-family” because more
than one home will be constructed on a single zoning lot,
the proposed structures will be laid out as single-family
homes with individual entrances.
16. Other factors considered by the Board in
determining the development is the minimum necessary to
afford relief include revisions made by Applicant[s] in
response to neighborhood input and the project’s
compliance with applicable bulk and height restrictions.
With respect to the proposed curb cut, the Board notes that
the proposed width exceeds the permitted maximum by
only four feet, that Applicants worked with the Planning
Commission in designing the parking layout and
driveway, and that the development will have a single curb
cut for vehicular ingress and egress.
11
The Board concluded that the development would not present a negative impact, citing
extensive landscaping, an open area of 61%, and green elements designed to prevent stormwater
runoff onto surrounding properties. (Conclusion of Law “C.L.” No. 17.) These elements include
“green roofs and porous driveways constructed of material that ‘allows the water to seep through,’
and ‘eliminates all the runoff from the property.’” (F.F. No. 21.)
11
(Conclusions of Law “C.L.” Nos. 10, 11, 14-16) (footnote added). Additionally, the
Board found:
22. With regard to the required setback variance,
[Applicants’ counsel] referred to test pier results showing
“the shallowest depth you were gonna have to drop to
[was] 38 feet the closer you were to Pechin Street.” He
then asked [Applicants’ engineer] if it was possible to
extrapolate from the test results that “as you get closer to
Pechin Street . . . you may not have to go as deep with the
piers?” [The engineer] replied: [“]It’s very possible,
because there’s a difference of 38 going up to 52 feet, . . .
a 14-foot difference.[”] 5/16/2018 [Notes of Testimony]
N.T. at 39-40 [R.R. at 74-75].
23. When asked by [counsel] if it was correct that
“if you are closer to Pechin Street, where … you drop the
piers, then you are at least not disturbing as much earth,”
[the engineer] agreed that “would be correct, based on the
pier depth.” 5/16/2018 N.T. at 39-40 [R.R. at 74-75].
....
25. Mr. Pellicciotti testified that he had experience
working in the Roxborough area and had worked with Mr.
Mulvihill on projects for “numerous sites.”
....
27. When questioned by [Applicants’ counsel]
regarding the “challenges” related to developing the
Property, Mr. Pellicciotti testified that each pier required
for the development would cost approximately $6,800.00.
5/16/2018 N.T. at 43 [R.R. at 78].
28. Mr. Pellicciotti testified that the proposed
construction would require a total of 147 piers, and that
the costs “[j]ust for the piers and foundations” would be “a
little less” than the 1.135 million dollars estimate
12
suggested by [Applicants’ counsel]. 5/16/2018 N.T. at 44
[R.R. at 79].
29. Mr. Pellicciotti testified that utilities for the
development would involve “a lot of engineering.” He
specifically noted:
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.
5/16/2018 N.T. at 46 [R.R. at 81].
30. Regarding the existing building at the site, Mr.
Pellicciotti said the “foundation is good, but everything
else would have to be torn down. He agreed that the
building “doesn’t have modern-day electrical systems and
HVAC systems.” 5/16/2018 N.T. at 45-46 [R.R. at 80-
81].
31. On cross examination, [Objector’s counsel]
questioned Mr. Pellicciotti regarding his conclusions that
the existing building’s foundation was good but
construction on the remainder of the site would require
piers. Mr. Pellicciotti, explaining the seeming
inconsistency, testified:
The foundation for this home, okay, is shallow,
because it’s almost on bedrock. Because in that
particular area, just like the whole of Roxborough,
you never know what you’re gonna hit. But in that
area when they built that home 51 years ago, they
built it on bedrock. Now, the other parts that are to
the left of it and to the right of it and straight back
is all fill.
5/16/2018 N.T. at 51 [R.R. at 86].
13
(F.F. Nos. 22, 23, 25, and 27-31.)
In granting the use variance for the requested number of houses, the
Board afforded great weight to the undisputed evidence pertaining to the cost of
dealing with the challenging geotechnical issues that it concluded would “impede
and significantly increase the costs of development.” (C.L. No. 10.) In other words,
the Board weighed and accepted Applicants’ evidence in concluding that the number
of units proposed in the initial application satisfied the minimum variance criterion.
Moreover, the Board focused on the fact that the proposed multi-family use would
remain residential and that the appearance of the townhomes would be similar to
single-family homes with separate entrances. This Court endorsed reliance upon
this qualitative factor in recent cases where we determined that the respective zoning
hearing boards did not err in concluding that the minimum variance criterion was
met. See Paganico, 227 A.3d at 956 (approving the board’s reliance on the fact that
the proposed use of micro homes was essentially residential and that the group care
building was generally consistent with the residential character of the
neighborhood); Zelienople Borough, slip op. at 10 (approving the board’s reliance
on applicant’s testimony that the proposed duplex would look very similar to other
dwellings in the zoning district); and Upper Roxborough Civic Ass’n, slip op. at 17
(approving the board’s reliance on the fact that the proposed development was
“designed to mimic the single-family massing of nearby residential properties”).
Turning next to the requested dimensional variance for the front setback
requirement, we note that Applicants’ engineer testified that the boring and the
nature of the soil prevents the property from having the required forty-seven foot
setback for the project as proposed. Specifically, due to the fluctuation in the depth
of the fill, a contractor probably would not have to place the piers as deep closer to
14
Pechin Street. (May 16, 2018, Hearing, N.T. at 38-40; R.R. at 73-75.) Even though
there is no exact evidence to support a determination that precisely seventeen feet
satisfied the minimum variance criterion, Applicants presented copious evidence
that it would be more cost effective to build without the required setback and the
Board accepted that evidence.
As for granting the dimensional variance from a maximum curb cut
width of twelve feet to sixteen feet, the Board reasoned that the proposed width
exceeded the permitted maximum by only four feet, that Applicants worked with the
Planning Commission in designing the parking layout and driveway, and that the
development would have a single curb cut for vehicular ingress and egress. (C.L.
No. 16.)
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 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
15
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.
Accordingly, we must remand 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. For the above reasons, therefore, we vacate the trial court’s
order and remand for further proceedings consistent with the foregoing opinion.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Ridge Park Civic :
Association : No. 420 C.D. 2019
:
Appeal of: Ridge Park Association :
ORDER
AND NOW, this 28th day of September, 2020, the order of the Court of
Common Pleas of Philadelphia County is hereby VACATED, and the matter is
REMANDED for further proceedings in accordance with the foregoing opinion.
Jurisdiction is relinquished.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge