Pennsylvania Commonwealth Court Reverses Grant of Variance for Dilworth House Project in Philadelphia

April 20, 2012

Last week, the Commonwealth Court dealt a legal setback to developer John Turchi’s efforts to develop the former home of legendary Philadelphia Mayor, Richard Dilworth.  The Court reversed the Philadelphia Zoning Board of Adjustment’s (ZBA) granting of a variance for a proposed project at Dilworth House which would have allowed the applicant to omit a loading area that is required by the zoning ordinance.  Society Hill Civic Association et al. v. Philadelphia ZBA, No. 1480 C.D. 2011 (Pa. Cmwlth. April 9, 2012).  The granting of the variance had been affirmed by the Court of Common Pleas of Philadelphia County (trial court).  The Commonwealth Court vacated and remanded the ZBA’s decision on other grounds as well.

The Case involved a proposed project to construct a 16-story structure behind the Dilworth House located on South 6th Street in Philadelphia comprised of 12 dwelling units and a library with 13 parking spaces.  Importantly, the total floor area of the proposed project was over 90,000 square feet, which required a loading area under the City’s Zoning Ordinance.  If the project were less than 50,000 square feet, a loading area would not have been required thereby eliminating any need for a variance.

The applicant sought a variance from the loading area requirement of the Zoning Ordinance.  After a public hearing, the ZBA granted the variance finding that the applicant met its burden of proving a hardship in significant part due to the fact that a truck could not make a turn into the rear of the property under the proposed plan.   A number of objectors appealed the decision to the Court of Common Pleas, which affirmed the ZBA’s decision.  The objectors then appealed to the Commonwealth Court.

In reversing, the Commonwealth Court held that even under the relaxed Hertzberg dimensional variance standards, expanding the use of a property in order to maximize profitability is not a sufficient hardship to justify the granting of a variance from a required loading area.  The Commonwealth Court found that the need for the variance was self-created by the applicant’s desire to construct a building that exceeded 50,000 feet.  Additionally, the Commonwealth Court found that there was no hardship because the property is suited for a single-family home, the purpose for which it was originally designed.