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The Valley View Civic Assoc. v. Zoning Bd. of Adjustment (1983) and E. Torresdale Civic Assoc. v. Zoning Bd. of Adjustment (1994) decisions are seminal Pennsylvania Supreme Court decisions that address variance analysis. The reasons for granting a variance must be substantial, serious and compelling. The party seeking the variance bears the burden of proving that unnecessary hardship will result if the variance is denied and the proposed use will not be contrary to the public interest. The hardship must be shown to be unique or peculiar to the property, as distinguished from a hardship arising from the impact of zoning regulations on an entire district. Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. In evaluating hardship, the use of adjacent and surrounding land is unquestionably relevant. Notably, both decisions involve Philadelphia properties and hence implicate the Philadelphia Zoning ordinance. The Philadelphia ordinance, specifically Section 14-1802(1)(a-l), enumerates the criteria set forth in Valley View, adding several additional macro considerations (street congestion, overcrowding, air and light, infrastructure and public safety). The Municipal Planning Code, inapplicable to Philadelphia, enables local municipalities to enact and enforce zoning ordinances. Like the Philadelphia ordinance, the MPC requires a showing of an unnecessary hardship caused by the physical surrounding conditions, that nearby property and the public welfare will not be impaired, and that the hardship must not be self-created. The basic thrust of both laws is clearly the same. An interesting issue arises when a litigant, or court for that matter, applies decisional law, like Valley View, to an MPC municipality. In other words, does Valley View or E. Torresdale Civic Assoc. lose its precedential value outside of Philadelphia? This question surfaced recently in Bucks County in the context of a variance application in an R-2 residential district. The uses afforded to owners in that Plumstead Township district, as a matter of right, run the gamut. Whether one prefers to cultivate life in the shape of a farm or memorialize the dead with a cemetery, a plethora of business uses are available; the conditional uses only expand the entrepreneurial horizons for small business owners in this residential district. In 2003, along came a man by the name of A. Rhoades Wilson, with the humble dream of operating an accounting firm out of his Plumstead home, a single family detached dwelling. Having done his due diligence and fully aware of the zoning limitations – or rather “options,” as is more appropriate in this case – Wilson decided to fork over the funds necessary to acquire a 2.5-acre parcel along Route 611 in Bucks County, a notoriously busy thoroughfare. Sometime after closing, he began renovations sans permit. A magnanimous zoning officer issued Wilson one after the fact, even in spite of his impression that Wilson was creating much more than a home office space; it was looking very commercial. Eventually, Wilson was outed, and he was unwillingly sucked into the vortex otherwise referred to as litigation. An enforcement notice was issued and subsequent application was made to the Zoning Hearing Board for a variance; he fessed up that he was interested in utilizing the subject property as an F3 professional office. That application was denied and an appeal to the common pleas court ensued. Notably, the MPC permits a trial court to hold a hearing to receive additional evidence, which was precisely the request made here. Wilson offered a persuasive geographic overlay of the district, pointing the compass in every conceivable direction. Contracting businesses, religious institutions, farms, watering holes, body shops, car dealers, banks and shopping centers were proffered as evidence of dissimilarity. You get the drift. And the lower court did, too, eventually granting a variance, concluding that the zoning cup doth overfloweth with unnecessary hardship. Tragically for Wilson, however, the Commonwealth Court reversed, taking issue with the lower court’s reliance upon Valley View and E. Torresdale. In the eyes of the court, those Philadelphia originating cases had no bearing upon a Plumstead Township property. Additionally, according to that court, Wilson’s variance request fell short under the MPC, specifically that unnecessary hardship could not be established and that a reasonable use of the subject property could still be made. Wilson, apparently hell-bent upon converting his home into a commercial office space, challenged the intermediate court’s ruling before the state Supreme Court in Wilson v. Plumstead Township, which was decided Dec. 12. Notably, Justice Cyththia A. Baldwin, writing for the state Supreme Court, rejected the notion that Valley View and E. Torresdale did not have statewide relevance; in fact, Valley View relies upon precedent originating in other counties. Of course the Philadelphia ordinance would not be applied to an MPC municipality and vice versa. The Wilson court immediately set out a caveat emptor type of analysis. First, it pointed out that the trial court failed to consider the neighboring commercial district, the assumption being that the district at issue was not placed into its proper geographical context. Next, the Wilson court observed that subsequent to the Zoning Hearing Board decision, Wilson actually moved into the residence at the subject property. He claimed that he was endeavoring to comply with the home occupation requirement. And in trying it on for size, if you will, it predictably proved unbearable, thanks to the heavily trafficked and very noisy roadway abutting the subject property. Yet, is a subjective claim of discontent, like Wilson’s, especially in the context of an arguably evolving district, enough to warrant a variance? Not according to the Wilson court. Unsympathetic to Wilson’s plight, the Wilson court echoed a point raised by the Commonwealth Court – Wilson’s district was never intended to be a traditional residential one. Rather, it was “specifically designed to provide for mixed uses.” No matter that an alleged autobahn of a highway borders a private residence. Simply put, that is the way it was meant to be and Wilson knew it. He even conceded that a different owner of his property could very well operate a home-based business there. Hence there is nothing “unique or peculiar” to this specific property that rises to the level of unnecessary hardship. Yet, could Wilson’s “hardship” be said to be self-inflicted? The Commonwealth Court thought so. In its estimation, because Wilson knew or should have known how the subject property was zoned, he has a self-inflicted hardship. In other words, Wilson’s claimed hardship was created by the purchase itself, not by the characteristics of the subject property. Significantly though, the Wilson court took issue with that holding. Under the Commonwealth Court’s logic, purchasers who elect to seek a different and impermissible use would be treated as those with self-created hardships and hence not entitled to a variance. Buyers who desire a variance should be permitted to put forth evidence concerning the nature of the land or surrounding uses, just as Wilson was entitled to do. He ran the risk of not attaining the requested relief, of trying to make an unnecessary hardship claim. And that sort of argument appears that much more difficult to assert in a mixed-use residential district, as counterintuitive as it might seem. Our state’s highest court doesn’t seem to be in the business of rounding up when it comes to clearly enumerated, relatively laissez-faire zoning regulations. HARPER DIMMERMAN represents clients in real estate matters and is the principal of his firm and president of DST Land Transfer Inc., a title insurance company licensedin Pennsylvania and New Jersey. He may bereached via e-mail at [email protected] or by telephone at 215-545-0600. He is co-chairman of the Philadelphia Bar Association’s solo and small firm committee and an executive committee member of the law practice management committee and YLD.

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