Neighbors Group Response to Zoning Hearing Board Decision

This response was provided by Stephen Iula, representing the neighbors group, with his permission. He notes, "conclusions in the high level summary are based upon my recollection of the hearing and w/o the benefit of the transcript of the hearing."

SUMMARY

The Zoning Hearing Board's (Board") decision is clearly deficient as the articulated "Findings of Fact" are lacking/inadequate and/or not supportive of the "Conclusions of Law." In particular the Board committed an error in law and/or abused its discretion in failing to recognize applicant: 1) failed to introduce any evidence establishing the condition of the site applicant alleges caused it hardship, 2) failed to introduce any evidence establishing the precise nature of the hardship (ie. by failing to demonstrate without the variances nine units could not otherwise be constructed within code having no more than distress value), and in particular 3) failed to introduce any evidence demonstrating that the variances sought represent the minimal variances necessary to afford it relief.

PERTINENT FACTS

The current owners, 9425 Stenton Properties, LLP ("applicant") [ a partnership consisting of local realtor Daniel J. Helwig; William Littleton; William Littleton, Jr.; and Christopher English] of the 1.75 acre site in dispute seek four variances of existing zoning code needed to permit the construction of a 35 multi-family residential unit condominium with underground parking at the site. The most significant of these is a 1) use variance allowing multifamily units and 2) a density variance allowing the site to support 35 units where the current code would only allow 9 units. On October 15, 2007, the Board unanimously approved the applicant's request for the use variance and the density variance to an increase from nine to 30 units.

The bordering neighborhood of the project have been adamantly opposed to it since its inception. Our objections are best summed up by a comment of one of our neighbors who compares the proposed building to "a foot that is way too big for its shoe." The footprint of the building is so substantial that parking under the building is necessary. The sheer mass of the building is far greater than anything else in the neighborhood, and perhaps a greater in mass of any building so imbedded in a residential community of all of Springfield Township. In short the project as proposed is an unattractive monstrosity out of character with the surrounding neighborhood of single family homes, with inadequate buffer areas, inadequate open space that will substantially impact the surrounding neighborhood.

THE LAW

Variance is defined in the Zoning section of Springfield Township's municipal code ("Zoning Code") in pertinent part as the "approval granted by the Zoning Hearing Board ... in situations where the literal enforcement of the [zoning code] would result in unnecessary hardship." Section 114-21. Before granting a variance the Zoning Hearing Board must determine that the applicant for the variance has meet criteria as set out in section 114-65 of the Zoning Code. In this section there are eleven elements. The most notable with respect to the the variance request made and approved by the Zoning Hearing Board required the applicant (NOT the neighbors to disprove) to demonstrate:

B(1) That there are unique circumstances or conditions, including, without limitation, irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other conditions peculiar to the particular property; and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the Zoning Ordinance in the neighborhood or district in which the property is located.

B(2) That because of such circumstances or conditions, there is little or no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

B(3) That such unnecessary hardship has not been created by the applicant.

B(4) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

Whatever the conditions of the property might be causing the Unnecessary Hardship" under section (B)1 quoted above the courts have clearly established that same must render the "property valueless without the grant of a variance" (Serban v. Zoning Board of Bethlehem, 84 PA . Commonwealth Ct. 558 (1984) and Laurento v. Zoning Board of the Borough of West Chester, 162 PA . Commonwealth Ct. 558 (1994)).

Legal Argument For Reversal on Appeal

1. Applicant failed to introduce any evidence supporting its closing argument that the shape of the property caused unnecessary hardship, thus failing to meet the requirement of code section 114.65 B(1).

   At the hearing the applicant's attorney argued in applicant's closing argument that the shape of the lot is the condition causing the applicant hardship. However, other than this statement, no evidence (to my recollection) was introduced by the applicant to support this position (i.e evidence demonstrating that 9 units could not be constructed within the existing code having more than distress value because of the shape of the property).

2. Applicant failed to demonstrate that the variances requested represent the minimal variance affording applicant relief as required by section 114.65 B(4) of the code.

   Let's assume for argument sake that applicant did or could demonstrate that the shape of the property caused hardship (making it impossible to develop nine detached units within current code). Then clearly the hardship complained of (ability to meet all other current code requirements) would be met by the granting of the use variance allowing multi-family use. Why? Its quite simple. If a 35 multi family unit complex can be constructed within the code with the aid of a multifamily variance then a nine multifamily unit complex could as well. Thus, applicant needs the density variance increasing capacity from 9 to 35 for one reason and one reason only — to make the project as profitable as possible. At no point in applicant's counsel's or my questioning of Dan Helwig or through the direct examination of applicant's other witnesses at the hearing did applicant demonstrate the minimal variance needed to make the project viable. To the contrary Helwig conceded that projects of a lesser scale without a parking garage were not even considered. This despite the fact that the addition of the underground parking garage will even by Helwig's admission (made at one of the two meetings) substantially add to the cost of the project. The bottom line is applicant has made absolutely NO EFFORT to demonstrate/delineate a minimal variance. Rather, what the applicant presented was a variance request geared to make the applicant as much money as possible.

3. As a matter of law, given the facts of this case, applicant CAN NOT be permitted to increase the allowable units beyond 9.

   The facts here are strikingly similar to the Laurento case, cited above. In that case the owner, Laurento, of an existing non-conforming warehouse in a residential Class B neighborhood (as ours) was proposed to be renovated/partial demolished creating a 12 unit attached family development. As in the instant case, Laurento sought variances for unit density and setbacks. Laurento argued under the code only 5 or six units would be permitted and as such would be too large to be marketable. The Zoning Hearing Board denied the variance request. Common Pleas Court of Chester County affirmed the Zoning Hearing Board's decision. On appeal before Commonwealth Court the Court concluded that Laurento's hardship arose from the impact on the entire district and not due to "the unique physical characteristics peculiar to his property." In reaching its decision the Court re-iterated its previous holding that relief from minimal unit requirements (bulk requirements) "is precisely the type of economic hardship" that is "insufficient to satisfy the standard of unnecessary hardship."