ORPHANIDES & TONER, LLP

David G. Orphanides, Esquire (Atty. I.D. 57929)

Paul J. Toner, Esquire (Atty. I.D. 94185)
Two Penn Center, Suite 400
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102
Tel.: (267) 236-7500
Fax: (267) 236-7501
Email: dorphanides@otllp.com
ptoner@ottlp.com
HUE MY LAM
and
HAI TUAN NGO

:
:
:
Appellants
:
v.
:
:
ZONING BOARD OF ADJUSTMENT
:
Appellee
:
and
:
:
TVG 1601 Washington LLC
:
Intervening Appellee :

Attorneys for Intervening Appellee,

TVG 1601 Washington LLC
Filed and Attested by
PROTHONOTARY
07 OCT 2014 08:32 am
L. OWENS

COURT OF COMMON PLEAS

PHILADELPHIA COUNTY
APRIL TERM, 2014
CIVIL ACTION NO. 01398
Statutory Appeal
Premises: 1601 Washington Avenue

ZBA CAL. No. 21336

BRIEF OF INTERVENING APPELLEE

Intervening Appellee, TVG 1601 Washington LLC (the Applicant), by and through its
attorneys, Orphanides & Toner, LLP, submits this Appellee Brief in opposition to the appeal
taken by Appellants, Hue My Lam and Hai Tuan Ngo (Appellants), from an April 3, 2014
decision of the City of Philadelphia Zoning Board of Adjustment (the ZBA) to grant a variance
for use(s) of/at a property owned by the Applicant located at 1601 Washington Avenue,
Philadelphia, Pennsylvania (the Subject Property), and the arguments made by Appellants in
their brief filed with the Court on September 2, 2014.

MATTER BEFORE THE COURT:

Before the Court is an appeal that the Appellants, who are the owners of an industrialzoned property located adjacent to the Subject Property that the Appellants operate as and/or rent
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Case ID: 140401398

or let out for commercial-type uses, filed from the April 3, 2014 decision of the ZBA to grant the
Applicant a use variance to utilize the by-right structure it proposes to erect on the similarly
industrial-zoned Subject Property with a mix of commercial and residential uses in keeping and
in character with the post-industrial combination of predominantly commercial and residential
uses on or at the properties situated along the same largely industrially-zoned section of
Washington Avenue where the Subject Property is located.
COUNTER-STATEMENT OF THE ISSUES:
I.

WHETHER THE ZBA COMMITTED EITHER AN ERROR OF LAW OR ABUSE OF

DISCRETION IN FINDING AND CONCLUDING THAT AN UNNECESSARY
HARDSHIP WOULD ARISE FROM THE DENIAL OF APPLICANTS REQUESTED
USE VARIANCE TO DEVELOP A MIXED RESIDENTIAL-COMMERCIAL BYRIGHT STRUCTURE ON AN INDUSTRIAL ZONED PARCEL WITH UNIQUE
PHYSICAL CHARACTERISTICS THAT IS LOCATED IN AN LARGELY
INDUSTRIAL-ZONED AREA THAT HAS ALREADY CLEARLY TRANSITIONED
FROM INDUSTRIAL USES TO A MIX OF COMMERCIAL AND-RESIDENTIAL
USES?
Suggested Answer: No. The ZBA heard extensive testimony, received a
considerable amount of evidence, reviewed the extensive
record, weighed the competing evidence and made
credibility determinations in coming to its reasonably
supported decision that an unnecessary hardship would
arise from the denial of the requested use variance.

II.

WHETHER APPELLANTS PERSONAL CONCERN ABOUT THE LOSS OF THEIR

LEASED PARKING AT THE SUBJECT PROPERTY OR THE VIEWS OF/FROM
WASHINGTON AVENUE FROM/OF THE SUBJECT PROPERTY IS A WHOLLY
INSUFFICIENT AND IMPROPER BASIS TO REVERSE THE FINDINGS AND
CONCLUSIONS MADE BY THE ZBA THAT THE INSTANT PURE USE
VARIANCE WOULD NOT BE CONTRARY TO THE PUBLIC INTEREST?
Suggested Answer: Yes. Having been provided with the opportunity to match
Applicants officer to purchase the Subject Property but
having refused to do so, Appellants have no legal right to
correct their business decision by either compelling the
Applicant to lease them parking spaces for their personal
benefit and gain at or prevent Applicant from a reasonable
use of the Subject Property.

Case ID: 140401398

III.

WHETHER THE ZBAS DECISION IS FULLY IN ACCORD WITH THE BINDING

DECISION IN SOUTH OF SOUTH STREET NEIGHBORHOOD ASS'N V.
PHILADELPHIA ZONING BD. OF ADJUSTMENT, 54 A.3D 115 (PA. CMWLTH.
2012) AND THE BURDEN SET FORTH THEREIN FOR THE ESTABLISHMENT OF
A PURE USE VARIANCE REQUIRED TO DEVELOP PROPERTY IN AN URBAN
AREA THAT HAS TRANSITIONED FROM INDUSTRIAL TO COMMERCIALRESIDENTIAL USES?
Suggested Answer: Yes. As in the South of South case, Applicant is seeking a
pure use variance from the same industrial zoning
restrictions along the same stretch of the Washington
Avenue post-industrial corridor.

IV.

WHETHER RECENT AMENDMENTS TO THE PHILADELPHIA ZONING CODE

REQUIRE AN APPLICANT TO ADOPT ALL STATEMENTS MADE DURING THE
PRESENTATION OF EVIDENCE OR JUST THOSE STATEMENT MADE BY
COUNSEL WHEN PRESENTING THE PERSONAL VIEWS OR TESTIMONY OF
APPLICANT RATHER THAN THE GENERAL INTRODUCTION OF EVIDENCE?
Suggested Answer: No. Where, as below, the Applicant actually testified
through two of its members, Applicant was not required to
adopt statements made by counsel during the introduction
and presentation of evidence.

COUNTER STATEMENT OF FACTS:

In the instant appeal, Appellants fundamental challenge is that the ZBAs decision was
not based upon substantial evidence. A review of the record reveals the meritless nature of the
instant appeal.
Applicant seeks to develop a five-story mixed-use building with a commercial use or uses
on the first floor and thirty-five residential units on the second through fifth floors. (A copy of
the Site Plan submitted and approved by the ZBA is appended to this Brief as Appendix A.).
Appellants summary of the layout and design of Applicants proposed five-story, mixed used
building comports with the findings of the ZBA and the plans approved by the City of
Philadelphia Department of Licenses & Inspections (L&I). A complete description is
unnecessary in this response brief.
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There is one use refusal at issue in the instant appeal. On September 10, 2013, L&I
issued a single use refusal premised on the multi-family residential and commercial use proposed
for the Subject Property, which are not permissible within the Citys I-2 Industrial Zoning
District, Code 14-602-3. Other than the use variance at issue in this appeal, Applicants
proposal is fully compliant with the height, set-back and parking provisions of the I-2 district.
A voluminous record was created before the ZBA. The transcript compiled before the
ZBA includes ninety-two (92) pages of testimony, and Applicant alone submitted eighty-seven
(87) pages of documentary evidence; and, the protestants before the ZBA, including the
Appellants, submitted over twenty-seven pages (27) of documentary evidence.
In support of its application, Applicant produced the testimony of: (i) Anthony Bisicchia,
who was the former owner of the Subject Property and who personally witnessed the transition
of Washington Avenue from an industrial to a predominantly commercial corridor (N.T. at 2228); (ii) Rory Scerri-Marion, who is a partner in the entity that currently owns the Subject
Property and submitted the instant application (N.T. at 28-30); James McIlhinney, who is a
partner in the entity that currently owns the Subject Property and explained the collaborative
design process that Applicant engaged in with multiple community organizations (N.T. 30-32);
Jon Adler, who is a member of the Board of Directors for the South of South Neighborhood
Association (SOSNA) and testified as to the general neighborhood support for mixed use
(residential/commercial) development on Washington Avenue (N.T. at 32-34). In addition to
SOSNA, Applicant presented letters of support from
1. Letter dated October 2, 2013 from the Washington Avenue Property Owners
Association (WAPOA), wherein the ZBA was informed that this project is
desirable in that it addresses the concerns along the Avenueby providing a
profoundly aesthetically pleasing building and bolstering our neighborhoods
foundation with a commercial and residential mix. WAPOA noted its universal

Case ID: 140401398

approval by the membership of the Association. (A copy of the WAPOA Letter

of Support is appended to this Brief as Appendix B.).
2. Letter dated October 7, 2013 from the South of South Neighborhood
Association (SOSNA), wherein the ZBA was informed that the SOSNA
Zoning Committee voted 7-0 in favor, Neighbors voted 23-1 in favor, with nearneighbors 3-0 in support SOSNA also advised the ZBA that the issue of the
loss of parking to Appellants adjacent shopping center was considered, as well as
neighbors from Point Breeze expressing concerns about the project impact on
parking and existing business. Nevertheless, SOSNA chose to fully support the
project rather than simply issue a position of non-opposition or deferral as
provided for in their standard guidelines. (A copy of the SOSNA Letter of
Supported is appended to this Brief as Appendix C.).
3. Letter Dated October 9, 2013 from Councilman Kenyatta Johnson, 2nd
Council District, wherein the ZBA was informed that Councilman Johnson
express[ed] [his] support for the above-referenced project [and stated] that this
application will have a positive impact on the neighborhood. (A copy of the
Councilman Johnsons Letter of Support is appended to this Brief as Appendix
D.).
After Applicant presented its case, Steve Cobb from Councilman Johnsons office not
only provided the ZBA with the Councils formal letter of support but also explained that during
the extensive neighborhood review process only one person opposed it. (N.T. at 34.) A near
neighbor, Job Itzkowitz, volunteered his own testimony in support of the instant application and
explained his personal experience with the transition of Washington Avenue into a mixed use
corridor. (N.T. at 35).
At the conclusion of hearing, the Philadelphia City Planning Commission (PCPC)
requested that the ZBA hold its vote until the Applicant could present its plans to the PCPC.
(N.T. at 86). Following the Applicants presentation to the PCPC, the PCPC informed the ZBA
that it supported the Applicant and their instant application for a use variance, stating in a letter
issued to the ZBA that at its meeting of December 10, 2013, the Philadelphia Planning
Commission recommended support for the development as proposed [and] that this project be

Case ID: 140401398

given favorable consideration. (A copy of the PCPC Letter of Supported is Appended to this
Brief as Appendix E.).
In opposition to the Applicants requested variance, seven primary witnesses testified and
submitted documentary evidence to the ZBA. Indisputably, those that appeared in opposition to
the Applicants requested variance consisted mainly of the Appellants family members, owners,
operators, employees and/or customers of the commercial uses existing at the Appellants
industrial-zoned property located adjacent to the Subject Property.
Derek Patterson, who lives and works in West Philly and is a family friend of the
Appellants, presented what appeared to be historical as well as current photographs of
Washington Avenue in the area of the Subject Property to show the commercial nature. (N.T.
at 36-40.) Appellant, Hue My Lam, who is a part owner of the adjacent property, only testified
and explained that the parking lot at the Subject Property that was and had been used for parking
by or in connection with the commercial-type uses at their industrial-zoned property that the area
was already congested as it is and there are too many cares in that area (N.T. at 40-41)
Hung Ngo, the brother of Appellant Hue My Lam, simply confirmed the commercial,
non-industrial nature of the (seven) operations at the Appellants industrial-zoned property
located adjacent to the Subject Property, expressed his objection to the loss of parking and sightlines, stating that because of the Applicants proposed by-right five-story building you wont
see us and confirmed that the main concern is the density of the development and that the
building is going to impact air, and light, and the ability to see and claimed, without any
support or basis, that they try to chase all the low-income people out. (N.T. at 42-44 and 47)
Amy Trinh, who maintains a professional office at the Appellants industrial-zoned property
located adjacent to the Subject Property, objected to the loss of parking that had previously been

Case ID: 140401398

available for her customers on/at the Subject Property and speculated that theres no way our
customers have space to park, so they force us to close down the mall. We not going to do any
business at all. (N.T. at 45-47) Tony Ngo, believed to be the sister of Appellant Hue My Lam,
stated that if they put this up, they going to kill the business (N.T. at 49). Jenny Ngo, who
purportedly oversees the commercial uses at the Appellants industrial zoned property,
speculated, without any basis or support, that the Applicants proposed building will destroy our
mall and our lives and that events at their property will, because they run late into the night, will
impact and cause conflict with the residential occupants on the Applicants adjacent property.
(N.T. at 54-55)
Charlotte Jackson, the block captain of the nearby ten hundred block of South
Chadwick Street, testified that the concern is the parking space. (N.T. at 63-64) Sylvia
Wilkins, who resides several blocks away from the Subject Property on the 1700 block of
Federal Street, stated without basis or support that Im going to try to say what everybody else
was trying to say here today. The big issue is the density. and provided the lion share of
testimony by the protestants, mostly regarding the number of proposed dwelling units and traffic
that might have been appropriate if it had been provided by a land use expert with basis and
support, but was irrelevant and relatively unpersuasive when asserted by a lay person. (N.T. at
64-86)
It is of interest to note the complete absence of any testimony, or the introduction of any
evidence, by Appellant, Hai Tuan Ngo, who is also purportedly part owner of the adjacent
industrial zoned property, whether with or without a translator, to voice his protests of or
objection to the granting of the Applicants requested variance.

Case ID: 140401398

Finally, (one of) the protestants at the ZBA hearing submitted a petition to the ZBA
signed mostly by individuals who were/are operators, employees or customers of the commercial
uses existing at the Appellants industrial zoned property , friends with the Appellants and/or live
out-of-state.
Again, it is important to note that as is the case with the Subject Property and the
Applicants present proposal, Appellants adjacent property is situated in the I-2 Zoning District
and since being converted from a lumber yard has been and continues to be used for commercialtyped uses. (N.T. at 57). In fact, a tenant in the adjacent commercial shopping center had just
applied for yet another variance to expand an existing commercial use at the Appellants adjacent
property. (N.T. at 58.) As the sayings go, this surely seems like a case of the pot calling the
kettle black, or one of do what I say, not what I do.
In the end, the record makes it crystal clear that this is an appeal that has been taken not
because of the zoning variance at issue but because of concerns or impact unrelated thereto but,
instead, to the loss of the use of the property and the erection of a by-right building - the loss of
parking (which none of the protestants that appeared and the ZBA hearing, including the
Appellants, have a right to or can reasonably expect to every regain) and views currently existing
on, over and through the Subject Property of the Appellants industrial zoned property located on
the opposite side of the Subject Property from Washington Avenue. Appellants objections were
based on their personal desire and motivations to deny or prevent the Applicant from using its
property by and through the granting of a legitimate variance by the ZBA in order to continue to
rent Applicants property for off-site parking for their own commercial use and maintain an
unobstructed line-of-sight to and from the commercial uses at the Appellants property over,
through and across the Subject Property from and to Washington Avenue. Nevertheless, it is

Case ID: 140401398

important to note that the record made clear that the Subject Property is not the sole area used by
customers of the adjacent commercial shopping center. (N.T. at 49-50). Appellants currently
have a total of 108 parking spaces (N.T. at 52) and had leased only 35 to 40 parking spaces at the
Subject Property for about 15 years, on a month-to-month basis. (N.T. at 24, 52). Moreover, the
Board heard testimony that Appellants have the potential to provide additional on-site parking
through the construction of a parking garage on their own property. (N.T. 11) Importantly, the
record substantiated that Appellants were given the first opportunity to purchase the Subject
Property (and continue their accessory parking use). (N.T. at 25) and thereafter were provided
the opportunity to match the price offered by the Applicant herein. (N.T. at 26.) Appellants
refused to purchase the Subject Property and have instead pursued the instant zoning appeal.
After taking testimony, and waiting for the PCPC to issue its position letter (to support),
the ZBA voted unanimously to approve the requested use variance.

COUNTER STATEMENT OF THE STANDARD OF REVIEW:

It is evident from both the substance and tenor of the Appellants brief that the Appellants
are impermissibly asking the Court to exceed its permissible standard of review, make its own,
or worse yet, adopt the Appellants, credibility determinations, (re)weigh evidence found
credible and persuasive by the ZBA and essentially retry or rehear the case. Appellants are
asking the Court to substitute its judgment for that of the ZBA made after a lengthy hearing
where all parties were afforded a full and unfettered opportunity to present and rebut evidence.
As such, Appellants are asking the Court to exceed its permissible scope of review.
Section 754 of the Local Agency Law provides, in its entirety:
(a) Incomplete record.--In the event a full and complete record of the
proceedings before the local agency was not made, the court may hear the
appeal de novo, or may remand the proceedings to the agency for the
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Case ID: 140401398

purpose of making a full and complete record or for further disposition in

accordance with the order of the court.
(b) Complete record.--In the event a full and complete record of the
proceedings before the local agency was made, the court shall hear the
appeal without a jury on the record certified by the agency. After hearing
the court shall affirm the adjudication unless it shall find that the
adjudication is in violation of the constitutional rights of the appellant, or
is not in accordance with law, or that the provisions of Subchapter B of
Chapter 5 (relating to practice and procedure of local agencies) have been
violated in the proceedings before the agency, or that any finding of fact
made by the agency and necessary to support its adjudication is not
supported by substantial evidence.
2 Pa.C.S.A. 754 (Emphasis added.) Moreover, case law has made clear that, under Section 754
of the Local Agency Law, a common pleas court may not make its own findings of fact when it
has not taken additional evidence. Frey v. Zoning Bd. of Adjustment of City of Pittsburgh, 459
A.2d 917, 918 - 919 (Pa.Cmwlth.1983).

See also Society Created to Reduce Urban Blight v.

Zoning Bd. of Adjustment, City of Philadelphia, 804 A.2d 147, 150 n. 3 (Pa.Cmwlth.2002)
(noting that under Section 1005-A of MPC a court reviewing a zoning appeal is statutorily
authorized to make its own findings of fact based on the record below; whereas, a trial court
reviewing a zoning case under Section 754 of the Local Agency Law, can only make its own
findings after opening the record by means of remand or taking additional testimony).
Case law has clarified that a record is full and complete when all parties are afforded
the opportunity to present and rebut evidence. When the Local Agency Law addresses the
disposition of an appeal [i]n the event a full and complete record before the local agency was
made, by legal and logical implication, it means a full and complete record compiled before the
agency in accordance with the law. McAllister v. Civil Service Commission of City of
Philadelphia, 438 A.2d 1043, 1044 - 1045 (Pa. Cmwlth. 1982) (holding that the trial court
exceeded its authority by making findings of fact and conclusions of law and recognizing that

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Case ID: 140401398

full and complete record is lacking only where the underlying record hearing was in some
manner legally defective.) For the purpose of determining what constitutes a full and complete
record, the Commonwealth Court has clarified that:
A full and complete record is defined as a complete and accurate
record of the testimony taken so that the appellant is given a base upon
which he may appeal and, also, that the appellate court is given a
sufficient record upon which to rule on the questions presented. City of
Philadelphia v. Board of License and Inspection Review, 139 Pa.Cmwlth.
240, 590 A.2d 79, 86(quoting Springfield School District v. Shellem, 16
Pa.Cmwlth. 306, 328 A.2d 535, 538 (1974)), petition for allowance of
appeal denied, 529 Pa. 625, 600 A.2d 540 (1991). Nowhere in Section
754 is the reviewing court given general authority to make its own
findings of fact and conclusions of law when the local agency has
developed a full and complete record.... Society Created to Reduce Urban
Blight (SCRUB) v. Zoning Board of Adjustment of the City of
Philadelphia, 804 A.2d 147, 150 (Pa. Cmwlth. 2002).
In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006) (reasoning that a court on appeal
committed a reversible error when it exceeded its statutory authority and reviewed a case de
novo despite a full and complete record having been before council below.)
Here, there is no allegation by the Appellants that they (or any other person or party that
entered their appearance at the hearing and appeared before the ZBA) attempted or sought to
present or rebut evidence and was denied the opportunity by the ZBA. Moreover, and given the
foregoing it makes sense that, the Appellants have not sought to open the record for the taking of
additional testimony; and, pursuant to the Courts scheduling order, that right to re-open the
record has passed and, as such, the issue is waived.
Given the above, in an appeal from a land use decision where the trial court does not
take any additional evidence, the standard of review utilized by the trial court is limited to
determining whether or not the administrative zoning board below committed an error of law, an
abuse of its discretion and/or made findings not supported by substantial evidence. Valley View

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Case ID: 140401398

Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983); see also
Upper Salford Township v. Collins, 669 A. 2nd 335, 337 (Pa. 1995). Rhoads, v. Zoning Hearing
Bd., Bor. of Sewickley, 683 A.2d 122, 1263 n. 1 (Pa. Cmwlth. Ct. 1996), appeal denied, 548 Pa.
663 (Pa. 1997). If the evidence before the Board was such that a reasonable mind might accept
it as adequate to support the findings made, then those findings will not be disturbed on appeal.
Rhoads, 683 A.2d at 1265. Conversely, an abuse of discretion will generally only be found by
the trial court where the where the findings of the administrative zoning board below are not
supported by substantial evidence, substantial evidence being construed as being such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Hertzberg v.
Zoning Bd. of Adjustment, 554 Pa. 249, 721 A.2d 43, 46 (1998), citing Larson v. Zoning Board
of Adjustment of the City of Pittsburgh, 672 A.2d 286, 299 (Pa. 1996) and Valley View Civic
Association v. Zoning Board of Adjustment, 462 A.2d 637 (Pa. 1983).
Furthermore, decisional law makes clear that a trial courts standard of review includes
whether the administrative zoning boards decision constitutes capricious disregard of the
substantial evidence of record. As explained in Taliaferro v. Darby Twp. Zoning Hearing Board
as [a] capricious disregard occurs only when the fact-finder deliberately ignores relevant,
competent evidence. Capricious disregard of evidence is a deliberate and baseless disregard of
apparently reliable evidence. 873 A.2d 807, 814 (Cmwlth. Ct.) (citing Capasso v. Workers
Comp. Appeal Bd. (RACS Assocs., Inc.), 851 A. 2d 997 (Pa. Cmwlth. 2004)), pet. For allowance
of appeal denied, 585 Pa. 692, 887 A.2d 1243 (2005). Capricious disregards.is just another
name for [a board] abusing its discretion and is an error of law when the [board] fails to give an
indication that it has examined countervailing substantive testimony that had to be considered at
arriving at its decision. Hinkle v. City of Philadelphia, 881 A.2d 22, 27 (Pa. Cmwlth. 2005).

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With this being said, in a zoning case, a zoning hearing board is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. Appeal of Lester M.
Prange, Inc., 647 A.2d 279, 282 (Cmwlth.Ct. 1994), citing McDonald v. Zoning Board of
Adjustment, 577 A.2d 240 (Cmwlth.Ct. 1990).
Thus, in reviewing the decision of the ZBA in this matter below, this honorable Court
must exercise a limited scope and standard of review. The Court should only determine if the
ZBAs findings are supported by substantial evidence of record - not whether there could or
should be more than a substantial amount of evidence or whether the Court, or worse yet, the
Appellants, could come to a different determination, one or both of which the Appellants would
seemingly have the Court believe and apply given the substance and tenor of and in their brief,
but whether there is just enough evidence of and in the record to warrant a determination that it
is substantial - and whether its conclusion conflicts with established law.

ARGUMENT IN OPPOSITION TO APPELLANTS APPEAL AND BRIEF:

I.

THE RECORD EVIDENCE SUBSTANTIATES THE ZBAS FINDINGS AND

CONCLUSIONS THAT IT WOULD CONSTITUTE AN UNNECESSARY
HARDSHIP TO USE THE SUBJECT PROPERTY FOR AN INDUSTRIAL
ZONED USE WHEN THAT PROPERTY HAS UNIQUE PHYSICAL
FEATURES, INCLUDING ITS LOCATION IN A LARGELY INDUSTRIAL
ZONED AREA THAT HAS ALREADY CLEARLY TRANSITIONED FROM
INDUSTRIAL USES TO A MIX OF COMMERCIAL AND RESIDENTIAL
USES.
An applicants burden to establish a hardship variance before the Philadelphia Zoning

Code is well established, yet, as will be elaborated below, it has been misstated and confused in
Appellants Brief.
As an initial matter, it must be noted that Appellants based each of their arguments on a
underlying challenge to the substantial evidence of record premised solely on the fact that such

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Case ID: 140401398

evidence was first introduced or summarized by counsel for Applicant before the ZBA. As will
be retailed and thoroughly discussed below, this underlying challenge to the right of counsel to
present and summarize evidence before the ZBA is completely without merit as both the plain
language of the Philadelphia Zoning Code and the very case law cited by Appellants recognizes
the propriety of counsel both introducing and summarizing record evidence. (Infra Argument
IV).
As just reiterated by the Pennsylvania Supreme Court, the following is a concise, and the
correct, test for whether an applicant establishes an unnecessary hardship sufficient to secure a
use variance from the terms and requirements of the Philadelphia Zoning Code:
Section 141802(1)[1] of the Zoning Code sets forth specific criteria that
the ZBA must consider in determining whether to grant a variance. This
Court has boiled down the 141802(1) criteria into three key
requirements: (1) unique hardship to the property; (2) no adverse effect
on the public health, safety or general welfare; and (3) ... the minimum
variance that will afford relief at the least modification possible. East
Torresdale Civic Association v. Zoning Board of Adjustment of
Philadelphia County, 536 Pa. 322, 639 A.2d 446, 447 (1994). The
hardship must be unique to the property at issue, not a hardship arising
from the impact of the zoning regulations on the entire district. Valley
View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462
A.2d 637, 640 (1983). In addition, the special conditions or circumstances
forming the basis for the variance must not have resulted from the actions
of the party seeking the variance. 141802(1)(d). The party seeking the
variance bears the burden of proof. Valley View, supra at 640.
This Court has previously held that, 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 v. Zoning Board of
Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 47
1

With the 2013 reenactment of the Philadelphia Zoning Code, the criteria previously set forth in
Section 14-1802 was reenacted in Section 14-303 of the Zoning Code.

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(1998) (citing Allegheny West Civic Council, Inc. v. Zoning Board of

Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225, 22728
(1997)); see also Eighteenth & Rittenhouse Associates v. Zoning Board of
Adjustment, 26 Pa.Cmwlth. 554, 364 A.2d 973, 975 (1976) (same, in a
decision affirming the Philadelphia Zoning Board's denial of a variance).
Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323 (2014) (emphasis in original).2

The complete list of factors set forth in Section 14-303 of the Zoning Code are as follows:
The Zoning 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 14-303(8)(e)(.2) (Use Variances) below, in the case of use variances, or the criteria set
forth in 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; 102
(.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.
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.

15

Case ID: 140401398

Fundamentally, Appellants challenge the ZBAs findings and conclusions as not being
based on substantial evidence of record. In making a substantial evidence challenge,
Appellants bear a heavy burden. When reviewing a decision of the ZBA, a court must exercise a
limited standard of review to determine if findings are based on substantial evidence. That
standard is now well established and oft cited as:
where the court of common pleas has taken no additional evidence, [it] is
limited to determining whether the zoning hearing board abused its
discretion or committed an error of law. An abuse of discretion will be
found only if the zoning board's findings are not supported by substantial
evidence, that is, such relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Upon reviewing a decision of
a zoning hearing board, a court may not substitute its judgment for that of
the board; and, assuming the record demonstrates substantial evidence, the
court is bound by the board's findings which result from resolutions of
credibility and the weighing of evidence rather than a capricious disregard
for the evidence.
Lamar Advertising of Penn, LLC v. Zoning Hearing Bd. of Borough of Deer Lake, 915 A.2d
705, 709 (Pa.Cmwlth.2007) (quoting Zoning Hearing Board of Sadsbury Township v. Board of
Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa.Cmwlth.2002).) See also Airport
Professional Office Center 100 Condominium Ass'n v. Zoning Hearing Bd. of Moon Tp., 20
A.3d 649, 653 (Pa.Cmwlth.2011) (reiterating that [t]he role of the zoning hearing board is that
of fact-finder [and a] reviewing court may not substitute its judgment for that of the zoning
hearing board; rather, the court is bound by the zoning hearing board's determinations of witness
credibility and evidentiary weight.) (quoting In re Rural Route Neighbors, 960 A.2d 856, 860
(Pa.Cmwlth.2008) To determine whether the findings of the ZBA are supported by substantial
evidence, the Commonwealth Court must consider the totality of the evidence in the existing
record. North Chestnut Hill Neighbors v. Zoning Bd. of Adjustment of City of

16

Case ID: 140401398

Philadelphia, 977 A.2d 1196, 1203 (Pa.Cmwlth.2009) (reasoning that the findings of the ZBA
must reflect that it carefully reviewed the entire record and that there is substantial evidence
therein to support its decision). So long as the record demonstrates that there was no manifest
abuse of discretion, the judgment of the ZBA should receive deference.
From even a cursory review of the record, it is clear that Appellants are making a
substantial evidence argument that is wholly undermined by the actual substantial evidence of
record.
A. The ZBA Correctly Found and Concluded that Applicant Established an
Unnecessary Hardship Relating to the Unique Physical Characteristics of
the Subject Property
In their first argument section, Appellants assert that the substantial evidence of record
does not support a finding: (i) that the Subject Property is irregularly shaped; or (ii) that the
shape the Subject Property does not prevent Applicant from operating a use permitted under the
I-2 Industrial Distribution, such as Wholesale Sale and Distribution and Distributor of Malt or
Brewed Beverages. (Appellants Br. at 14-18.) Appellants first argument is without merit for
multiple reasons.
i. Substantial Evidence of Record Supports the Boards Findings
that there are Unique physical features of the Subject Property
Appellants argue that the ZBAs reference to the irregular, triangular shape of the Subject
Property constitutes a reversible error. Appellants are wrong as a matter of law and, moreover,
have attempted to grossly obfuscate the relevance of the Subject Propertys triangular shape and
the weight afforded to that fact by the ZBA. Applicants burden was to establish the existence of
physical features of the property that limit permitted uses. As will be elaborated upon below,
the record contains more than substantial evidence on the existence of the Subject Propertys
irregular shape.
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Case ID: 140401398

Importantly, while the ZBA referenced the irregularly shaped features of the Subject
Property, the shape of the Subject Property, as Appellants seemingly attempt to lead the Court
to believe, was not the sole basis for the finding of a hardship. This is not a case where the
hardship solely arises from the Subject Property being irregularly shaped; rather, this is a case
where the shape of the Subject Property is but one of the contributing factors that led to the
ZBAs finding of unique physical features that created an unnecessary hardship. Contrary to
the focal argument in their brief, the law has never made the shape of property a dispositive
element. The law and the ZBAs decision is premised on the unique physical features of the
Subject Property.
Appellants extensive discussion of geometry and the design of prominent buildings like
the Pentagon is misleading to whether the ZBA correctly found that the physical features of
the Subject Property contribute to its finding of an unnecessary hardship. In their brief, after
reviewing dictionary definitions, Appellants came to the conclusion that the Subject Property is
not actually irregular because a triangle is a three sided object and such a shape has
symmetry, regularity and even boundaries (Appellants BR. at 15) so it cannot be irregular.
(Appellants Br. at 15-16.) Appellants contend that the mere invocation of the words irregularly
shaped, without anything further, is a hollow shibboleth[3] not supported by the substantial
evidence on the record as a whole. (Appellants Br. at 17-18).
Foremost, the ZBA correctly found that the Subject Property is irregularly shaped and its
irregular shape was a factor in finding an unnecessary hardship. (See FOF 7, 22(a)-(b).) As
noted by the ZBA, the record substantiates that:

The Merriam-Webster Dictionary defines shibboleth as an old idea, opinion or saying that is commonly
believed and repeated but that may be seen as old-fashioned or untrue. MERRIAM-WEBSTER DICTIONARY
(available at http://www.merriam-webster.com/dictionary/shibboleth)

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Case ID: 140401398

The lot is very irregularly shaped. Its not even a full triangle. It guess it
would be a trapezoid, almost looks like a baseball diamond.
(N.T. at 6). In addition to the summary of the physical shape of the Subject Property, the
exhibits introduced into the record, including the Citys zoning map (applicant Ex. D); an
aerial photograph (Applicant ZBA Ex. E), plans submitted and approved by the Streets
Department (Exhibits G); and, plans submitted to L&I and SOSNA (Exhibits H, L, and M-O)
provided the ZBA with additional evidence to review and weigh when making its determination
that the triangular/diamond like shape of the Subject Property is irregular in the context of
building parcels in the I-2 zoning district. Ultimately the ZBA found:
that because of the particular size and configuration of the Subject
Property, i.e., an irregularly shaped corner lot with narrow corners (almost
like a triangle), the Subject Property cannot support an industrial use and
literal enforcement of the Zoning Code would result in an unnecessary
hardship;
that the conditions which the appeal for a variance are based are unique to
the Subject Property, in particular being an irregularly shaped corner lot
that has been used as parking for retail/commercial use for many years and
which is located in an area that has been and continues to be transitioning
from industrial to a mix of commercial and residential and such conditions
make it impractical to use the Subject Property for industrial use.
(FOF 22(a)-(b).) Based on these findings, which are supported by the evidence of the record
evidence, the ZBA properly found that the Subject Property is irregularly shaped for
development with a permitted industrial use. This factual determination, moreover, was solely
within the province of the ZBA. See Marshal __ Pa. at __, 97 A.3d at 332 (recognizing that,
when reviewing the record as a whole and rendering its findings, the ZBA is permitted to utilize
its expertise in and knowledge of local conditions and is entitled to infer that the building
could not be used for any permitted purpose.).

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Case ID: 140401398

Furthermore, and contrary to the focus of Appellants argument, the record includes
substantial evidence that the hardship does not just arise from the shape of the Subject
Property but, more importantly, its physical features. As seen through historic pictures of
Washington Avenue that were produced by protestants, the Subject Property was originally part
of an industrial corridor of Washington Avenue that was served by multiple rail lines that
previously ran along the entire length of Washington Avenue. On parcels like the Subject
Property, the rail lines actually traversed the parcel and provided direct service to a specific
industrial manufacturer. (See Protestant ZBA Ex. A-E.) To this day, the pictures of the Subject
Property, which were entered into the record before the ZBA, depict portions of the nowabandoned rail system that served Washington Avenue. And, as was explained to the ZBA, the
Subject Property itself was acquired by its prior owner directly from CONRAIL (N.T. at 23) and
Appellants own property (now a commercial shopping center) was previously a lumber yard
when Appellants purchased it approximately 23 years ago. (Trans at 48). Not only are the
physical remnants of the corridors industrial past documented in the record, but the testimony
and documents clearly substantiated that a industrial nature has left the Washington Avenue
corridor and the Subject Property is now surrounded by a mix of residential and commercial uses
Washington Avenue and commercial uses all along that corridor. A copy of the Zoning Map
intro into the record is appended here as Appendix F. Photographs of the uses on Washington
Avenue are appended hereto as Appendix G.
In its decision, the ZBA made several findings concerning the physical features of the
Subject Property. In finding a hardship and how the location of the Subject Property contributed
to its hardship determination, the ZBA: (i) reviewed and considered pictures and other exhibits
and documents and concluded that Washington Avenue currently includes a significant

20

Case ID: 140401398

commercial use (FOF 7); (ii) weighed testimony and documentary evidence and came to a
reasoned determination there istransition in the neighborhood from obsolete industrial uses to
residential uses (FOF 7); (iii) found credible the testimony of a representative from the local
RCO that SOSNA has no interest in our neighborhood having industrial uses on Washington
Avenue and that current demand is for mixed use, a combination of commercial and
residential like the instant application, (FOF 11); accorded greater weight to the testimony
from Councilman Johnsons representative that the application for mixed use development at the
Subject Property would be a great addition to the neighborhood (FOF 12); and, even afforded
the Philadelphia City Planning Commission additional time to hear, review and make a
recommendation (to support) the instant application (FOF 21).
Thus, there is simply overwhelming substantial evidence of record to support the ZBAs
conclusion that:
9. The record before the Board, demonstrates that the literal enforcement
of the Zoning Code against the Subject Property would result in an
unnecessary hardship due to the physical surroundings and particular
size and configuration of the Subject Property; that the proposed use of
the Subject Property as mixed use commercial and residential
development will have no adverse effect on the public health, safety or
general welfare; and that the variance being requested represents the
minimum variance that will afford relief at the least modification possible.
10. The Owner presented sufficient evidence demonstrating the unique
nature of the Subject Property. In particular, the Owner demonstrated that
the Subject Property is an irregularly shaped corner lot with narrow
corners (almost like a triangle) that cannot support industrial use. The
Owner also demonstrated that the Subject Property was located in an area
that is clearly transitioning from its industrial roots into a commercial
corridor with support from residential. Such evidence demonstrates that
the Subject Property cannot and should not be used for an industrial use.
.
(COL 9-10.) As correctly found and concluded by the ZBA, the hardship justifying the use
variance arose from the Subject Property being zoned for I-2 industrial uses in an immediate area
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Case ID: 140401398

that no longer supports industrial uses. As substantiated in the record, the Board was correct in
weighing the evidence and determining that there is no viable industrial use and that the
Washington Avenue corridor has developed for the type of mixed commercial and residential
uses that are unquestionably not permitted by the applicable zoning provisions.
ii. The ZBA Weighed the Record Evidence and Properly Determined
that the Subject Property Cannot Be Viably Used for a Permitted
Purpose
Appellants make the core argument that [t]he Board failed to take any testimony, nor did
the Applicant offer any evidence that the [Subject] Property could not be used for a multitude of
other permitted uses in the I-2 zoning district. (Appellants Br. at 20.)
In arguing that Applicant was required to establish that no other permitted use was viable,
Appellants are making precisely the same argument that the Pennsylvania Supreme Court
rejected in Marshall. In Marshall, the Pennsylvania Supreme Court squarely rejected the same
argument being relied upon now by Appellants, in relevant part, when it reasoned:
This Court has repeatedly made clear that in establishing hardship, an
applicant for a variance is not required to show that the property at issue
is valueless without the variance or that the property cannot be used for
any permitted purpose.
Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323 (2014) (Italics in original.) A copy of
the Marshall decision is appended hereto as Appendix H. Accordingly, Appellants are
presenting an argument that was expressly rejected by our Supreme Court on July 24, 2014 in the
Marshall decision.
Furthermore, a detailed review of the Supreme Courts recent decision in Marshall is
particularly instructive on the deference that should be accorded to the ZBA in making its
findings and conclusions, as well as the impropriety of demanding that an applicant produce
evidence on the unviability of the score of uses permitted in any given zoning district. In
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Case ID: 140401398

Marshall, the zoning applicant sought to convert an existing school building into housing for
low-income seniors in a single-family zoning district. The objector in Marshall based his
opposition on an alleged failure of the applicant to establish a hardship unique to the school
building because, in seeking a variance, the Archdiocese [applicant] had the burden to show
why it was impractical to build single-family houses in that single-family residential district.
The ZBA disagreed with the protestant and granted the requested variance. The trial court
affirmed on appeal.
On appeal to the Commonwealth Court, the underlying decision to grant the requested
variances was reversed. In its decision, the Commonwealth Court reasoned that the applicant in
Marshall:
had completely failed to address how the physical characteristics of the
property would prevent it from being utilized as one of the many other
permitted uses in an R10A Zoning District, the court held that the ZBA
had improperly found that a unique hardship existed, and its grant of the
variances was not based on substantial evidence.
Marshall v. City of Philadelphia, __ Pa. __, 97 A.3d 323, 328 (2014). The Supreme Court then
granted allocatur and reversed the decision of the Commonwealth Court. In relevant part, the
Supreme Court strongly rebuked the Commonwealth Court and its disregard of the findings and
conclusions made by the ZBA and reasoned:
This Court has repeatedly made clear that in establishing hardship, an
applicant for a variance is not required to show that the property at issue is
valueless without the variance or that the property cannot be used for any
permitted purpose. On several occasions, we have reversed the
Commonwealth Court when it had relied on such a standard for
unnecessary hardship in reversing the grant of a variance. See,
e.g.,Hertzberg, supra at 50 (rejecting the Commonwealth Court's
unnecessary hardship standard, which required an applicant for a variance
to demonstrate that the property at issue could not be used for any
permitted purpose); Allegheny West, supra at 228 & n. 3 (rejecting the
Commonwealth Court's holding that unnecessary hardship can be
established only by showing that the property at issue is practically
23

Case ID: 140401398

valueless as zoned); Valley View, supra at 641 (rejecting the

Commonwealth Court's view that evidence of unnecessary hardship is not
conclusive absent a showing that the property at issue is practically
valueless as zoned). Showing that the property at issue is valueless
unless the requested variance is granted is but one way to reach a finding
of unnecessary hardship; it is not the only factor nor the conclusive factor
in resolving a variance request. Hertzberg, supra at 48. Rather, multiple
factors are to be taken into account when assessing whether unnecessary
hardship has been established. Id. (citing Allegheny West).
Furthermore, we have never required a property owner seeking a variance
to present direct evidence as to the value of the property as zoned. Valley
View, supra at 64142. In addition, although evidence of a property
owner's inability to sell may be probative, id., we have concluded that it is
unreasonable to force a property owner to try to sell his property as a
prerequisite to receiving a variance. Allegheny West, supra at 228.
Marshall, 97 A.3d at 330.
Accordingly, Appellants wrongly assert that Applicant had to offer evidence that the
Property could not be used for one or more of the no less than thirty-nine (39) permitted uses in
the I-2 zoning district. (Appellants Br. At 21). As can be seen above, that clearly was not
Applicants burden. In effect, Appellants are impermissibly asking that this court substitute its
judgment for that of the ZBA that the Subject Property cannot be used as zoned. (Appellants
Br. At 20 (quoting COL 11).)
Here, a decision to reverse the ZBA would necessarily require the same level of disregard
of the ZBAs factual findings and legal conclusions as was specifically and strongly rejected in
Marshall. As already detailed above, the ZBA issued a thorough decision that included
recognition of all elements set forth in Section 14-303 of the Philadelphia Code, weighed several
factors in finding an unnecessary hardship, including, the shape of the Subject Property, its
inclusion in a former industrial corridor that has long-since transformed into a mixed-use
corridor, the broad and strong support of the Philadelphia City Planning Commission,
Councilman Kenyatta Johnson, the Washington Avenue Businesspersons Association and
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Case ID: 140401398

SOSNA. And, as has been long recognized, evidence like the support of local neighborhood
associations, while not dispositive, is considered significant evidence for the ZBA to base its
decision. See City of Philadelphia Zoning Bd. of Adjustment v. Earl Scheib Realty Corp., 301
A.2d 423, 426 (Pa. Cmwlth. 1973) (citing Riccardi v. Plymouth Township Board of Adjustment,
393 Pa. 337, 142 A.2d 289 (1958).)
In furtherance of the Appellants aforementioned flawed and erroneous line of
contentions and arguments regarding the ability to actually utilize the Subject Property for a use
or uses permitted in the I-2 zoning district, the Appellants also attempt to advance the
unsubstantiated and seemingly illogical proposition that the Subject Property can be used for an
I-2 permitted use simply because the Applicants underlying zoning permit application
included a request, in part, for the approval of uses that are permitted in the CMX-2 zoning
district, a few of which could be permissible in the I-2 zoning district, in the designated nonresidential portion(s) of the structure proposed to be erected upon the Subject Property specifically business and professional office, group medical, dental or health practitioner
office, business support, financial services and maintenance and repair of consumer.
(Appellants Br. at 20) Based upon a review of the record before the ZBA, as well as common
sense and logic, it is clear that here again, as above, there are serious deficiencies in the
Appellants assertion.
First, as expressly found by the ZBA, the Applicants underlying zoning permit is not just
for commercial uses but for residential uses as well, and residential uses are clearly not permitted
in the I-2 zoning district. (See FOF 3.) In fact, the proposed residential uses consume far more
of the proposed mixed-use structure, approximately four-fifths of the gross floor area, than the
proposed non-residential uses. (Applicants ZBA Ex. O.) Second, there was an extensive and

25

Case ID: 140401398

detailed exchange at the Hearing between two of the members of the ZBA and counsel for the
Applicant regarding the need for further or additional zoning permit applications for a
commercial use. In that exchange, it was acknowledged that further or additional review by
L&I, and possibly further or additional appeals to the ZBA in connection with other or additional
requirements of the Zoning Code related to or triggered by those non-residential uses in the
Applicants zoning permit application, including, but possibly not limited to, off-street parking
requirements. (See FOF 10, N.T. 85-92) For reasons well known and obvious to both parties
counsel and the Court, there is no guarantee that these additional requirements can or will be met
or satisfied, particularly (given the opposition in/to this case) if relief of or from the ZBA is
required, and, as such, it is clearly not a given that the Subject Property can be used for any of
the non-residential uses proposed in the Applicants zoning permit application, not just those
referenced by the Appellants. Third, and finally, just because a use is permitted by-right under
the Zoning Code does not necessarily mean that such use is actually viable at a particular
property, in a particular building, in a particular location or area and that said property can or
will actually be used as such.
Given the foregoing, it is more than evident that it is pure speculation on the part of the
Appellant to (and a reasonable mind could not) generally conclude that the mere inclusion of byright uses in a zoning permit application whether such uses permitted in the applicable zoning
district or in any other zoning district means or proves that the property for which such use(s)
are proposed can actually be used for or as such. As was thoroughly discussed before the ZBA,
any commercial use will be realize at the Subject Property only following a second zoning
application.

26

Case ID: 140401398

Furthermore, in attempting to make their point in this regard the Appellants have clearly
chosen to focus or look only at the Applicants proposed non-residential uses, by themselves and
separate and apart from the larger residential component of the Applicants proposed project.
(Appellants Br. at 20) The purely speculative nature of the Appellants proposition is even more
obvious when applied to this specific scenario, i.e., to (incorrectly and erroneously) conclude that
the mere inclusion of possible or potential commercial uses, as part of a project with a far larger
residential component, in a zoning permit application means that the Subject Property could be
feasibly used independently for said commercial use(s), particularly, as in this case, where the
property is shaped as it is, is located where it is and will have a building as is proposed erected
upon it. It is clear that Applicants submission of a list of permitted CMX-2 type commercial
uses in conjunction with the far larger residential component (of 35 residential units) in the
instant zoning permit application does not substantiate that the Subject Property can be used
independentlyfor one or more or any of the CMX-2 type commercial uses that are also
permitted in the I-2 zoning district.
It is simply a non sequitur that a commercial use found viable as part of a large, mixed
residential/commercial development would necessary be viable as a stand-alone commercial use
of the Subject Property. The intangibles to viably developing a stand-alone commercial use at
the Subject Property are both well beyond both the proper scope of this brief and (more
importantly) what was submitted to in the underlying application and present to the ZBA.
Appellants are again speculating as to the viability of a laundry list of permitted uses (which, as
reiterated in Marshall, was not Applicants burden to satisfy before the ZBA) and confuses the
viability of a mixed-use proposal for the Subject Property (which was before the ZBA) with

27

Case ID: 140401398

speculation on the viability of independent commercial uses of the Subject Property (which
undoubtedly was not before the ZBA).
Finally, Appellants assert that the current month-to-month rental of the Subject Property
for accessory parking for Appellant owners commercial center constitutes a viable by-right nonaccessory parking lot. Nevertheless, the record is clear that parking at the Subject Property
was completely accessory to Appellants commercial center; and, as a matter of law, accessory
parking is not a permitted use within the I-2 zoning district.
The only type of by-right parking permissible within the I-2 Industrial District is nonaccessory parking. The Philadelphia Zoning Code defines non-accessory parking and draws a
distinction between non-accessory parking and accessory parking. The Code provides that
non-accessory parking is limited to:
Parking that is not provided to comply with minimum off-street parking
requirements and that is not provided exclusively to serve occupants of or
visitors to a particular use, but rather is available to the public at-large. A
parking facility that provides both accessory and non-accessory parking
shall be classified as non-accessory parking if it leases 25% or more of its
spaces to non-occupants of or persons other than visitors to a particular
use.
(Code 14-203(213) (incorporating Code 14-601(7)(k) (Parking, Non-Accessory)).)
Here, the facts of record make it unequivocally clear that Appellants used the Subject
Property for accessory parking to their adjacent commercial shopping center. First, the I-2
Zoning District does not have a minimum parking requirement, so their prior use of the Subject
Property could not have been to comply with minimum off-street parking requirements.
Second, the record pictures make clear that the Subject Property was previously fenced off,
except for those accessing it through a curb cut on Appellants commercial shopping center (N.T.
at 21), so is was clearly provided exclusively to serve occupants of or visitors to a particular
usei.e., Appellants shopping center. Furthermore, the reality of the current accessory use
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Case ID: 140401398

is revealed when Appellants acknowledged in their brief that the [Subject Property] is being
used as an accessory, open air parking lot. (Appellants Br. at 30 (emphasis added).)
Accordingly, the plain language of Section 14-601(7)(k) preludes the prior parking use
from being construed as a non-accessory use (which is permitted in the I-2 district) rather than
an accessary parking use (which is not permitted in the I-2 district).
iii. The Valley View Analysis is Applicable to this Case and Supports
the Decision of the ZBA to Grant the Use Variance.
Appellants assert that the ZBA improperly made findings relating to surrounding postindustrial uses. (Appellants Br. at 23) (arguing that [w]hile the Board hear testimony on the
nature of adjacent surrounding land, the Board did not hear or receive sufficient evidence.
(emphasis added)). For example, Appellants believe that the record evidence of a prior variance
granted to allow a mixed-used structure at 1731-37 Washington Avenue was inexplicable
(Appellants Br. at 36-37); Appellants challenged whether the pictures of the surrounding area
depicted mixed use or single use residential or commercial buildings (Appellants Br. at 24);
Appellants sought to distinguish the conversion of the Marine Club as being part of an existing
building (Appellants Br. at 25, 37); and, Appellants contended that the ZBA did not properly
comprehend the pictures introduced into the record of the surrounding uses and rather made their
own, different observations from those picture (Appellants Br. at 37) Nevertheless, with this
argument, Appellants are plainly and impermissibly asking the Court to substitute its judgment
on matters such as the weight afforded to evidence and the credibility of witnesses for findings
made by the ZBA.
As properly concluded by the ZBA below, the Supreme Courts decision in Valley View
Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983) allowed the
ZBA to consider the impact of the surrounding uses on the Subject Property and supports the
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Case ID: 140401398

grant of the use variance at issue in this appeal. In Valley View, the Supreme Court upheld a
decision of the ZBA to grant a use variance to convert a three story detached dwelling, located in
a residential district, to a takeout sandwich shop with a residence on the second and third floors.
In reaching its decision, the Supreme Court concluded that the ZBAs decision that the property
was unfit for residential use was supported by substantial evidence that the property was located
on a busy street, abutted by a gas station and convenience store, and virtually surrounded by
disharmonious commercial and industrial properties.
Like the analysis in Valley View, the ZBA below was correct in reviewing the
surrounding post-industrial uses in reaching its decision that the Applicant would suffer an
unnecessary hardship from being denied the requested use variance. As specifically cited by the
ZBA, the substantial evidence of record fully supports the ZBAs finding:
(i)

that the record as a whole substantiates that the Subject Property

is located in an area that has been and continues to be
transitioning from industrial to a mix of commercial and residential
and such condition make it impractical to use the Subject Property
for an industrial use. (FOF 22(b));

(ii)

that SOSNA has no interest in our neighborhood having industrial

uses on Washington Avenue. There is really only interest in mixed
use, a combination of commercial and residential. (FOF 11
(citing See N.T.at 34));

(iii)

that Mr. Bisiccia has personally seen the transition from industrial
to commercial over the past forty years. (FOF 13 (citing N.T. at
27));

(iv)

that the photographs presented by the Applicant indicate that there

is significant commercial use along Washington Avenue, most if
not all of which is zoned industrial. (FOF 7)

(v)

that there is a transition in the neighborhood from obsolete

industrial uses to residential uses. (FOF 7 (citing N.T. at 6, 18));

(vi)

that Washington Avenue is more of a commercial corridor now

with residential surrounding it than it is an industrial area. (FOF
7) (citing N.T.at 19)); and,
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Case ID: 140401398

(vii)

that the PCPC, after a separate post-hearing presentation by

Applicant and opposed by Appellants made a recommendation that
the ZBA support the instant application. (FOF 21).
iv. Appellants Rely Heavily on a Case that Actually Supports the
ZBAs Decision

Appellants rely heavily on North Chestnut Hill Neighbors v. Zoning Board of

Adjustment of the City of Philadelphia, 977 A.2d 1196 (Pa. Cmwlth. 2009). A review of that
case only lends support to the thorough decision issued by the ZBA below.
In North Chestnut I, the Commonwealth Court was presented with an appeal challenging
whether the applicant has established an unnecessary hardship North Chestnut Hill Neighbors
v. Zoning Bd. of Adjustment of City of Philadelphia, 928 A.2d 418, 426 (Pa.Cmwlth.2007).
After reviewing the record, the Court, as is clear in this case, found that the ZBAs findings were
supported by substantial evidence of record. In North Chestnut I & II, the building in questions
was currently a viable structure where the applicant proposed expansion of a currently
operational museum use located in a gilded aged mansion. Nevertheless, a hardship was found
in Chestnut Hill I and the ZBA granted inter alia the requested variance to legalize the existing
museum use and allow for its expansion. Then, after remanding the case for the ZBA to
determine if the request to expand the currently operational museum use was the minimum
variance that would afford relief, the ZBA weighed the evidence of record as a whole and
found that variance requested to expand the currently operational museum to meet modern
standards was the minimum variance. Chestnut Hill II, 977 A.2d at 1202. Importantly, in its
decisions to affirm, the ZBA in both North Chestnut I & II, as in this case, weighed the record
evidence of broad community support in making its findings and conclusions on unnecessary
hardship.

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Case ID: 140401398

B. Appellees Purchase Did Not Create the Hardship and the Purchaser-WithKnowledge Doctrine Has No Application.
Appellants rely heavily on the Supreme Courts decision in Wilson v. Plumstead Tp.
Zoning Hearing Bd., 594 Pa. 416, 430-431, 936 A.2d 1061 (2007). Appellants argue that
Applicants only hardship here is that it desires greater uses than that which currently exists on
the [Subject] Property or could exist in compliance with the existing zoning. (Appellants Br. at
29.)
In effect, Appellants seek to misconstrue Applicants purchase with knowledge of the
zoning restrictions applicable to the I-2 Industrial District as barring Applicants from the relief
rightly granted by the ZBA. (Appellants Br. at 28-29) Appellants reliance on Wilson and their
argument that this case involves a self-inflicted hardship or an attempt by Applicant to
maximize its financial gain based on its pre-sale knowledge of the zoning restriction is
misplaced.
In Wilson, the Supreme Court squarely held: pre-purchase knowledge of zoning
restrictions limiting development, without more, does not create a hardship. Wilson, 594
Pa. at 430-431, 936 A.2d at 1069 (emphasis added) (recognizing that the hardship was
established through the property and surrounding environment and was not created by the
purchase).) In relevant part, the Supreme Court in Wilson, in rejecting an argument that a new
owner who sought to operate an office in a residential district could not be granted a variance
because of pre-sale knowledge, explained:
With respect to a landowner who purchases with knowledge of the
property's condition and existing zoning restrictions, the hardship is
deemed self-inflicted only where he has paid an unduly high price because
he assumed the anticipated variance would justify the price, or where the
size and shape of the parcel was affected by the transaction itself.

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Wilson, 594 Pa. at 416, 936 A.2d at 1, 936. Moreover, in reaching its conclusion, the Supreme
Court cited and quoted Manayunk Neighborhood Council v. Zoning Board of Adjustment, 815
A.2d 652 (Pa.Cmwlth.2002), wherein the Commonwealth Court explained:
While older cases explain the "purchaser with knowledge" concept ...,
more recent cases recognize that where hardship arises from intensity of
restriction, the right to relief runs with the land ... Unless the hardship
arises from the purchase itself, as where the purchase price was too dear,
transfer of the property does not create the hardship ... Thus, pre-purchase
knowledge of zoning restrictions limiting development, without more,
does not create a hardship.
Id. at 657 (citations omitted and emphasis added).
Here, as in Wilson and Manayunk, Applicant had presale knowledge of the applicable
provisions of the I-2 Industrial District, but no evidence was present to indicate, let alone
substantiate, that Applicant paid too high a price or that the purchase price was too dear.
Moreover, as extensively discussed supra, Applicants hardship arises from intensity of
restrictioni.e., being zoned I-2 on a former industrial corridor of Washington Avenue that no
longer is viable for industrial uses and the right to relief runs with the land. As correctly found
by the ZBA, the record substantiates that Applicant desires a reasonable, viable use of Subject
Property and, contrary to the argument raised by Appellants (Appellants Br. at 29), is not seeking
an optimum use. In fact, Applicants proposal does not require height or parking variances, as
the instant application otherwise complies with the applicable dimensional restrictions of the I-2
Industrial District.
Therefore, before the ZBA, no evidence was produced of impermissible pre-sale
knowledge and the instant case is in full accord with Wilson, and the modern judicial view of the
relevance of pre-purchase knowledge.

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II.

APPELLANTS PERSONAL CONCERN ABOUT THE LOSS OF THEIR

PREVIOUSLY LEASED PARKING IS INSUFFICIENT TO RENDER THE
APPLICANTS USE VARIANCE AS BEING CONTRARY TO THE PUBLIC
INTEREST
With their second issue, Appellants argue that ZBA committed an error of law by not

finding that the proposed will not be contrary to the public interest. (Appellants Br. at 30
(emphasis added).) Appellants assert that the loss of their accessory parking will injure the use
of their adjacent property by limiting their customers parking options and altering the view of
their commercial property from Washington Avenue.
i. Appellants Opposition to Applicants Proposed Mixed
Commercial/Residential Use Based Solely On Their Loss of
Parking For Their Adjacent Commercial Use Is Not a Good Faith
Basis to Oppose the Instant Application, Let Alone a Legal Basis
to Reverse the ZBA.
Foremost, it is telling that Appellants fail to cite to any case law to support their unique
proposition that the ZBA should deny Applicant a use variance because any development of the
Subject Property would cause Appellants to lose access to parking it had rented for a number of
years. There is none.
As a general matter, a property owner has no vested right in the use of anothers property
to satisfy a parking requirement in his or her own property. See Ken-Med Associates v. Bd. of
Tp. Sup'rs of Kennedy Twp., 900 A.2d 460, 467-468 (Pa.Cmwlth.2006) (reasoning that where an
applicant had the opportunity to renew parking license for 28 off-site parking spaces previously
utilized by applicant, that business owner could not claim an unnecessary hardship sufficient to
justify the grant of dimensional variances to allowed for the construction of an on-site parking
garage and that the actions/inactions on the part of applicant, at the very least, contributed to the
current parking difficulties for the Property and the claimed hardship by Landowner) The
Commonwealth Court has also recognized the impropriety of opposing the development of a
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Case ID: 140401398

neighbor property to continue an off-site benefit enjoyed by a neighboring, protestant property

owner. See Ruddy v. Lower Southampton Tp. Zoning Hearing Bd., 669 A.2d 1051, 1055 (Pa.
Cmwlth. 1995) (noting that the requirement that a variance be consistent with the public interest
cannot be used as a substitute for condemnation where testimony established that the proposed
developed would increase flooding on adjacent property owned by the municipality).
Here, the almost singular basis for Appellants opposition is the loss of the use of the
Subject Property for accessory parking to its adjacent commercial shopping center.
Unquestionably, Appellants had been utilizing the Subject Property since its prior owner
acquired it from CONRAIL as accessory parking pursuant to a month-to-month lease. The
Subject Property, however, was not the sole area used by customers of the adjacent commercial
shopping center (N.T. at 49-50), with the Subject Property accounting for only 35 to 40 parking
spaces of the their current total of 108 parking spaces. (N.T. at 52). The record moreover
substantiated that Appellants have the potential to provide additional on-site parking through the
construction of a parking garage. (N.T. 11) Appellants were given the first opportunity to
purchase the Subject Property (and continue their accessory parking use). (N.T. at 25.)
Appellants were even provided the opportunity to match the price offered by the Applicant
herein. (N.T. at 26.)
Most important for the purpose of the instant appeal, the ZBA was well aware of the then
current accessory parking use of the Subject Property by Appellants. (FOF 7) (recognizing that
the Subject Property is currently rented on a month-to-month basis by the [Appellant] owners of
the supermarket/mall that is located directly to the North of and adjacent to the Subject Property
for parking). Nevertheless, the ZBA, after eliciting testimony on the accessory parking use and
making specific findings of fact, concluded that such a past accessory use did not preclude the

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Case ID: 140401398

finding of a hardship. At the conclusion of Appellants individual testimony, ZBA Board

Member Staten made the pertinent observation on the central object to the loss of parking at the
adjacent commercial shopping center:
At the end of the day, its their property. Its their property. You cant
say they cant build anything. I dont care what they build there. Its their
property to build on. You can be objecting to them building the building
because its certain things they need from zoning, but you cant stop them
from building because they can build on the parking lot Parking will go
away regardless. It will go away. They have a right to build on their
property.
(N.T. at 46).
Therefore, the central complaint made by Appellantsi.e., that they will lose the former
contractual benefit of accessory parking at the Subject Propertyis insufficient to justify the
denial to Applicant of its requested use variance. As aptly and correctly noted by Mr. Staten, any
development of the Subject Property would cause Appellants to lose their prior enjoymentby
contractof the Subject Property for their personal benefit. A reversal of the ZBA would
effectively sanction a private taking of Applicants property.
ii. Appellants Have No Legal Right to a View of Washington
Avenue
In addition to the loss of their contractual right to accessory parking, Appellants also
objected based on a limitation of an existing line-of-sight of their commercial shopping center to
Washington Avenue. (Appellants Br. at 31)
As with the loss of their prior contractual use of the Subject Property, the ZBA elicited
testimony, made findings of fact and concluded that the loss of visibility did not justify the denial
of the requested use variance. As a matter of law, it is well established in Pennsylvania thatan
adjacent owner has no right to a view through or on a neighboring property owners land. See,
e.g., Maioriello v. Arlotta, 364 Pa. 557, 558, 73 A.2d 374, 375 (Pa.1950) (recognizing that
Cohen et ux. v. Perrino et ux., 355 Pa. 455, 50 A.2d 348, this Commonwealth Court decided that
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Case ID: 140401398

an owner has the privilege of building, upon his own land, a structure which obstructs the light,
air and view of an adjoining owner, even though such structure serves no useful purpose and is
erected solely to annoy the adjoining owner and interfere with the use and enjoyment of his
land). As noted by the Supreme Court:
a property owner cannot assert a right to preserve the view from his
property. It is well established that adjoining landowners can erect
structures that interfere with one's view and that no cause of action thereby
arises.
Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 543 Pa. 415, 429, 672 A.2d 286, 293
(1996) (citing Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950); Cohen v. Perrino, 355 Pa.
455, 50 A.2d 348 (1947).)
iii. The ZBA Weighed the Competing Facts and Found That The
Proposal Will Neither Increase Congestion Nor Overcrowd the
Land or Create an Undue Concentration of Population
Appellants contend that the ZBA did not properly accord sufficient weight to testimony
on the potential increase in traffic congestion and parking demand at, and around, the Subject
Property, as well as block light and impact walkability. (Appellants Br. At 32-35)
Appellants are again asking the Court to substitute its judgment for that of the ZBA,
which, as previously discussed is impermissible and would constitute reversible error. See.
Marshall. In its decision, the ZBA recognized the objections and competing evidence based on
parking, traffic, congestion, shadows and walkability (FOF 15-20, 22(e)-(j)) and did not find
that those objections substantiated an actual detriment to the public welfare. Furthermore, the
ZBA could not base its decision on the lack of a shadow study, which was not a requirement
imposed upon Applicant by the Zoning Code. See South of South, 54 A.3d at 123 (recognizing
that the Philadelphia Zoning Code contains no requirement for an owner seeking a variance to
conduct a formal traffic study). And, in South of South, the Commonwealth rejected the precise
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Case ID: 140401398

argument being raised by Appellants here as to an alleged increase in traffic congestion. The
Commonwealth Court explained that:
the ZBA, in considering [Section 303 of the Zoning Code criteria],
evaluates certain of those criteria in light of the umbrella of the publicinterest prong of the three-part standard for the granting of a variance. In
this regard, the ZBA's responsibility is to consider whether congestion
will affect the public welfare. In exercising the discretion that the Zoning
Code grants the ZBA, the ZBA may grant a variance, even if congestion
is expected, as long as the ZBA also concludes that such congestion will
not be detrimental to the public welfare.
South of South Street, 54 A.3d at 123.
Therefore, Appellants argument that the ZBA erred in not affording sufficient weight to
protestants objections based on traffic, parking, congestion and light are without merit.
iv. The ZBAs Finding That the Proposed Development Will Not
Adversely Affect the Supply of Air and Light to the Adjacent
Commercial Property is Supported by Substantial Evidence
Finally, Appellants argue that the ZBA abused its discretion in finding that the proposed
development will not affect the adequate supply of light and air to their adjacent commercial
shopping center. Appellants contend that Applicants should have been required to prepare and
produce a shadow study. (Appellants Br. at 35)
Foremost, it cannot be ignored that Appellants fail to provide any legal authority to
support their argument that Applicant was required to produce a shadow study. As a matter of
law, there is no such requirement and the ZBA properly weighed the competing evidence on the
impact of the proposed development on the supply of air and light to the adjacent commercial
property.
Appellants are plainly and impermissibly asking the Court to substitute its judgment for
that of the ZBA.

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III.

APPELLANTS ARGUMENT AS TO MINIMUM VARIANCE IS DIRECTLY

IN CONFLICT WITH THE COMMONWEALTH COURTS DECISION IN
SOUTH OF SOUTH STREET NEIGHBORHOOD ASS'N V. PHILADELPHIA
ZONING BD. OF ADJUSTMENT, 54 A.3D 115 (PA. CMWLTH. 2012)
With their third argument, Appellants contend that the ZBAs decision should be

reversed because Applicant did not establish that the requested use variance was the minimum
variance that would afford relief. In South of South Street Neighborhood Ass'n v. Philadelphia
Zoning Bd. of Adjustment:
We note, however, that this minimization requirement contained in both
the MPC and the Zoning Code appears to pertain more to dimensional
variance requests. In the context of a use variance, the criteria other
than the minimization requirement serve the purpose of placing
restrictions on the exercise of a zoning board's inherent power to exercise
discretion in the granting of a variance. The Association offers no legal
citation to cases in which zoning hearing boards or reviewing courts have
applied the minimization requirement in the context of a pure use
variance application. We acknowledge here that our own research may
have failed to discover such a case, but, even so, absent such a reference in
the Association's brief, we conclude that the minimization requirement is
not relevant in this case.
54 A.3d 115, 124 (Pa.Cmwlth.2012)

See also Oakbrook Fire Co. No. 14 Relief Ass'n v. City of

Reading Zoning Hearing Bd., 2014 WL 61312, 4 (Pa.Cmwlth.2014) (recognizing the holding in
South of South that the minimization requirement is only relevant in dimensional variance cases
and not use variance cases such as the instant appeal). A copy of the South of South decision is
appended hereto as Appendix I.
Here, as in the South of South decision, the ZBA was presented with a pure use variance
where the minimum variance requirement is not relevant.
A review of the South of South decision, moreover, strongly supports the ZBAs decision
below. In that case, the property in question was located at 2310 Washington Avenue, which is
part of the same post-industrial corridor at issue in the instant appeal. The Zoning of the parcel
-i.e., G-2 Industrialwas the same zoning classification as the current I-2 Industrial District.
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Case ID: 140401398

The G-2 District was converted to the I-2 District with the 2013 reenactment of the Philadelphia
Zoning Code. Like the Applicant herein, Dung Phat was a property owner/applicant who sought
a use variance from the provision of the G-2 Industrial District to allow for the development of
commercial use(s) at his vacant industrial parcel. The proposal in South of South concerned the
conversion of a vacant industrial building into a multi-tenant shopping center. In seeking his
variance, Dung Phat argued to the ZBA that:
[his] Property was subject to a hardship by virtue of the zoning
requirements, arguing that the G-2 zoning restrictions are inappropriate in
the area, whichis becoming increasingly commercial in nature.
South of South, 54 A.3d at 119. In granting the requested variance, the Commonwealth Court
not only recognized the increasing commercial nature of the Washington Avenue corridor, but
also recognized, like with the blocks surrounding the Subject Property, the existence of
residential uses on the blocks surrounding 2301 Washington Avenue. Id. At 124. In rejecting an
argument that the proposed commercial uses in South of South would negatively impact the
surrounding community, both the ZBA and the Commonwealth noted that Dung Phat was
proposing to down-zone from Industrial to Commercial, which inherently would be more
beneficial to a transitioning commercial corridor and its surrounding residential community than
a new by-right industrial development. The Commonwealth Court in affirming the decision of
the ZBA reasoned:
the ZBA was cognizant of the fact that the Property itself is zoned for
industrial uses. Since an industrial use is permitted as of right, it was
reasonable for the ZBA to conclude that permitting a commercial use of a
property zoned for industrial use would not alter the essential character of
the neighborhood. The ZBA clearly considered the effect of the proposed
use on the use of adjacent properties, and it reasonably concluded that the
proposal would not detrimentally affect the public welfare.
South of South, 54 A.3d at 124.

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Here, as in South of South, the ZBA granted a pure use variance to allow down-zoned
commercial/residential uses of the Subject Property in a manner that comports with the postindustrial transitioning nature of the Washington Avenue corridor and its surrounding residential
communities. As previously discussed, the law does not require Applicant to prove that every of
the 39 other uses permitted in the I-2 Industrial District were not viable and, as expressly held by
the Commonwealth Court in South of South, it was not required of the Applicant to establish that
the requested pure use variance would afford the minimum variance from the restrictions of
the I-2 Industrial District. The ZBA property considered all arguments, weighed all facts and
ultimately concluded that Applicant would suffer an unnecessary hardship if its requested use
variance were denied.

IV.

IN MAKING ITS FINDINGS AND CONCLUSIONS, THE ZBA PROPERLY

RELIED ON THE DOCUMENTARY EVIDENCE AND ORAL TESTIMONY
PRODUCED BY, AMONG OTHERS, THE REGISTERED COMMUNITY
ASSOCIATION, THE LOCAL COUNCILMAN, THE PHILADELPHIA CITY
PLANNING COMMISSION, NEIGHBORHOOD BUSINESS OWNERS AND
RESIDENTS AND ON STATEMENTS MADE BY COUNSEL FOR
APPLICANT
In their final argument, Appellants argue that there was no substantial evidence for the

ZBA to base its findings because the testimony by Applicants attorney was never Agreed to
by the parties. (Appellants Br. at 39.) Appellants final argument is completely without merit.
Appellants reference one section of the Zoning Codei.e., Section 14-303(14)(f)in
support of their argument that Applicant had to formally adopt all statements made by their
counsel. Appellants argument is without merit because they are selectively referencing the
applicable provision of the Philadelphia Zoning Code, ignoring the fact that two partners of
Applicant actually testified and omitting a section of the Zoning Code that expressly allows for
counsel to testify at a hearing before the ZBA.
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Case ID: 140401398

There are two specific subsection of the Philadelphia Zoning Code dealing with the right
and ability of counsel to provide record evidence. Both are set forth in Section 13-306 of the
Zoning Code, which provides:
All Zoning Board hearings are subject to the following provisions:
(f) Except as provided in 14-303(14)(g)[4] below, any person
may appear in person or by an attorney, and may be accompanied
by a family member or translator. Statements by a persons
attorney on his behalf shall not be considered as testimony,
except where agreed upon by the parties.

(j) Attorneys representing applicants or objectors, including but

not limited to attorneys representing civic groups, will be permitted
to cross-examine, present evidence, and request the issuance of
subpoenas.
(Code 13-303(14)(f),(j).)
As expressly allowed by Section 13-303(14)(j) of the Code, the record is clear that
counsel for Applicant acted within his legal right to cross-examine and present evidence
during a record hearing. The requirement that counsels testimony be adopted or be agreed
upon by the parties applies where counsel is speaking on behalf of or testifying for an
applicant, such as where counsel speaks on behalf of an individual who is not able to speak for
himself. A classic example is someone who needs an interpreter or has a phobia that precludes
public presentations. When subsection 13-303(14)(f)&(j) are read in pari materia, as they must,
see 1 Pa.C.S. 1932(a), the record makes clear that counsels introduction and summary of
documents and other record evidence was permissible.
Furthermore, during the record hearing, the Chairwomen of the ZBA, who is the
individual responsible for interpreting the administrative provisions governing record hearings
summarized the application of Section 13-303 of the Philadelphia Code and concluded that
4

(g) Any corporation, including an incorporated nonprofit, that is the applicant in the matter before the Zoning
Board shall be represented by an attorney at the public hearing on that matter before the Zoning Board.]

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Case ID: 140401398

Applicants counsel was properly speaking on behalf of the Applicants in presenting their case
during the record hearing, the Chairwoman of the ZBA explained to the protestants that:
This gentleman [Applicants attorney David Orphanides] is an attorney.
Thats why he can speak on behalf of the developers. Its the rules that we
have.
(N.T. at 48) See, e.g., Williams Holding Group, LLC v. Board of Sup'rs of West Hanover
Tp., 2014 WL 4627749, 19 (Pa.Cmwlth.2014) (recognizing that [i]t is well established that
a zoning board's interpretation of its zoning ordinance is to be given great weight as representing
the construction of a statute by the agency charged with its execution and application). While
Appellants reference North Chestnut Hill I for the proposition that unsworn statements of
counsel that have no independent basis of support in the record are not competent testimony,
(Appellants Br. at 39), they omit the fact that counsels testimony in that case was deemed proper
and not excluded or considered inadmissible. As in this case, the Commonwealth Court in North
Chestnut Hill I recognized that where such is the case, the representations either were identified
as argument, ( see ZBA's Findings of Fact, Nos. 7, 8), or they had an independent basis of
support in the record, ( see ZBA's Findings of Fact, Nos. 9, 28, 31) that testimony was proper.
North Chestnut Hill I, 928 A.2d at 426. Moreover, at no point during the record hearing did
Appellants object to the testimony of counsel for Applicant, so, even if there was merit to
Appellants current argument, the issue has been waived. 1700 Columbus Associates, LLC v.
City of Philadelphia, Zoning Board of Adjustment, 976 A.2d 1257, 1268 (Pa.Cmwlth.2009)
(recognizing that issues not raised before the ZBA are waived for appellate review).
In this case, the record is not only clear that counsel for Applicant acted well within his
right to introduce and summarize testimony, as well as summarize the content of written
documents (which, under the Pennsylvania Rules of Evidence speak for themselves), but the

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Case ID: 140401398

two partners of the Applicant each appeared and provided their own testimony before the ZBA.
As properly found by the ZBA, the testimony by Applicants counsel consisted of introducing
the application and plans submitted to L&I (6) and explaining documents (FOF 2-4. 6) Said
documents are independently part of the record. Next, Appellants complain about Applicants
testimony on the Shape of the Subject Property, which, as is plan from the record, is
independently depicted on the application plans, aerial photographs, zoning map and pictures.
(FOF 6) Appellants objection to finding of fact seven is perhaps most clearly without basis.
In finding of fact 7, the ZBA cites to the independent testimony of Anthony Bisicchia. Finally,
Appellants object to findings 8 and 10, wherein Applicants Council plainly did nothing but
introduce and summarize the application plans, which are independently part of the record.
Therefore, there is no merit to Appellants objection to the hearing statements made by
Appellants counsel.

CONCLUSION:
As set forth above, Appellants entire argument is nothing less than a request for your
Honorable Court to disregard the findings made by the ZBA and substitute its judgment for that
of the ZBA on matters such as the weight afforded to evidence and the credibility of witnesses.
As a matter of law, Appellants are asking your Honorable Court to exceed to limited scope and
standard of review. There is no basis to reverse the thorough and extensive decision of the
Philadelphia Zoning Board of Adjustment.
ORPHANIDES & TONER, LLP
By:

__/s/ David G. Orphanides______

David G. Orphanides, Esquire
__/s/ Paul J. Toner_____________
Paul J. Toner, Esquire
Counsel for Intervening Appellee,
TVG 1601 Washington LLC

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Case ID: 140401398