Marshall v. City of Philadelphia

97 A.3d 323, 626 Pa. 385, 2014 WL 3579694, 2014 Pa. LEXIS 1785
Supreme Court of Pennsylvania·Decided July 21, 2014·Published·Cited by 101 cases

Opinions

OPINION

Justice McCAFFERY.

In this zoning matter, we must determine if the Commonwealth Court applied an improper standard in reversing a zoning board’s grant of a variance.

On November 8, 2010, the Archdiocese of Philadelphia (“Archdiocese”) filed an Application for Zoning/Use Registration Permit with the Philadelphia Department of Licenses and Inspections (“L & I”) for conversion of the Nativity B.V.M. Elementary School into a 63-unit, one-bedroom apartment complex for low income senior citizens, to be called Nativity B.V.M. Place. The school, in the Port Richmond section of Philadelphia, had been constructed in 1912 and operated by the Archdiocese in legal non-conformance with subsequently enacted zoning codes until 2008, when it had been closed due to declining enrollment and insufficient revenue. In 2009, the Archdiocese received funding under the Section 202 Supportive Housing for the Elderly program of the United States Department of Housing and Urban Development (“HUD”) to convert the school to senior housing.1

[326] L & I denied the Archdiocese’s Application for Zoning/Use Registration Permit as not in compliance with several provisions of the Philadelphia Zoning Code.2 Specifically, L & I found the following: (1) the proposed use was not a permitted use in the R-10A Residential Zoning District;3 (2) only four parking places were provided in the proposed project, whereas nineteen were required;4 (3) three of the parking spaces were not of sufficient size;5 (4) the landscaping in the proposed parking lot was insufficient; and (5) there were several dimensional non-conformities with respect to the rear and side yards and the height of the building. The Archdiocese appealed to the City of Philadelphia Zoning Board of Adjustment (“ZBA”) for use and dimensional variances.

On January 5, 2011, the ZBA held an evidentiary hearing at which John Hayes, the project architect, and John Wagner, a representative from Catholic Health Care Services, a part of the Archdiocese and the sponsor of the project,6 testified. The testimony established that the project constituted “an adaptable reuse of a neighborhood anchor that would have gone vacant, [and] which could have ended up as a nuisance and now [is] going to be adaptive and reused for the benefit of seniors of this community.” Notes of Testimony (“N.T.”), ZBA Hearing, 1/5/11, at 4. Other evidence indicated that the Archdiocese had engaged the community in discussion about the housing project and had found that there was wide support,7 and further[327] more, that there was a need for low income senior housing in the area. The Archdiocese made clear its intention to open up between 20 and 30 parking spaces on the street by petitioning the city to remove signs banning parking during school hours, signs no longer needed or appropriate since the school had closed. In addition, most of the new residents would have an income at or below the poverty level and all would be over age 62, a demographic in which not all individuals own vehicles. Id. at 3-9.

At the ZBA hearing, there was only one objector, attorney Jon Marshall, who was representing his mother Gloria Marshall (“Appellee”), a resident of the area who had attended community meetings regarding the project but had not previously raised any objections. Id. at 23-24. Ap-pellee argued that the Archdiocese had not shown hardship unique to the school building, as required for the grant of the variance. Id. at 14; see id. at 23 (Appellee’s statement that “Really, it’s the hardship issue I’m interested in.”). Furthermore, Appellee contended, the Archdiocese had itself created a hardship by choosing to close down all activities in the building rather than raise tuition to generate more revenue. Id. at 14-15. When asked by the ZBA co-chairman what her specific opposition was to the proposed project, Appellee responded as follows: “Parking is a problem in that area. The nature of the neighborhood does not have any multifamily housing.” Id. at 15-16. Appellee also contended that “people were against having Section 8 housing on the block. They found out it would bring people in who were low income, who didn’t work, had parties all night, who rolled in the kegs, and had a very enjoyable time on blocks where people had quiet homes.” Id. at 19. In addition, Appellee objected to placement of a driveway near where children walk; questioned where the trash would be picked up; and observed that pieces of cement had fallen off the building, one piece having landed on the top of a vehicle some twenty years ago. Id. at 20-21. Finally, Appellee asserted that, in seeking a variance, the Archdiocese had the burden to show why it was impractical to build single-family houses on the site. Id. at 24.

Just prior to the ZBA’s vote, co-chairperson Peter Gonzales, Esq., reviewed some of the other uses permitted in this R-10A-zoned district: professional offices, art galleries, a place of worship, a library, a telephone exchange building, a surgical or medical hospital, and a water and sewage pumping station. Id. at 30-31. Mr. Gonzales concluded that most of these permitted uses “would provide more congestion to the neighborhood in terms of parking and traffic” than the proposed senior housing project. Id. at 31.

Free access — add to your briefcase to read the full text and ask questions with AI

Marshall v. City of Philadelphia, 97 A.3d 323, 626 Pa. 385, 2014 WL 3579694, 2014 Pa. LEXIS 1785 (Pa. 2014).

97 A.3d 323 (Marshall v. City of Philadelphia) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Vinwell Partners, LLC v. Peters Twp. ZHB
Commonwealth Court of Pennsylvania, 2025
J. Hoekstra & J. Hoekstra v. Amity Twp. ZHB
Commonwealth Court of Pennsylvania, 2025
L. Palmer v. Susquehanna Twp. ZHB
Commonwealth Court of Pennsylvania, 2025
L. Harding v. Harrisburg City ZHB v. Heinly Homes, LLC
Commonwealth Court of Pennsylvania, 2024