              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Angel Martinez and Railroad              :
Recovery, Inc.,                          :
                        Appellants       :
                                         :
                   v.                    :
                                         :
Zoning Board of Adjustment of the        :   No. 1116 C.D. 2017
City of Philadelphia                     :   Submitted: April 13, 2018


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: July 25, 2018

            Angel Martinez (Martinez) and Railroad Recovery, Inc.1 (collectively,
Applicants) appeal from the Philadelphia County Common Pleas Court’s (trial court)
July 7, 2017 order denying Applicants’ appeal and affirming the Philadelphia Zoning
Board of Adjustment’s (ZBA) decision denying Applicants’ request for a special
exception and/or variances. Applicants present three issues for this Court’s review:
whether the trial court erred by affirming the ZBA’s denial of a (1) special exception
and (2) use variance; and, (3) whether the trial court erred by not ordering the ZBA to
grant Applicants a use variance for an expansion of a permitted non-conforming use.
After review, we affirm.
            On December 8, 2014, Applicants applied to the City of Philadelphia
(City) Department of Licenses and Inspections (L&I) for a zoning/use permit for a
proposed junk and salvage yard at 532 West Annsbury Street, Philadelphia

      1
         Railroad Recovery, Inc. owns the property at issue, 532 West Annsbury Street,
Philadelphia, and Martinez leases it therefrom.
(Property), located in a I-2 Medium Industrial Zoning District (I-2 Zoning District).
Applicants stated in their application that the proposed use was for “office space, [and
a] salvage[], scrap, crush[ing] car[s’] auto wrecking lot.” Reproduced Record (R.R.)
at 39a. L&I issued a Notice of Refusal determining that Applicants’ proposal for
retail sale of used parts was prohibited in the I-2 Zoning District and that the
proposed salvage yard required a special exception. On February 2, 2015, Applicants
submitted a special exception application and appealed from L&I’s decision to the
ZBA.
             The ZBA held a hearing on May 20, 2015, at which Applicants
presented only Martinez’ testimony and otherwise chose to rely on counsel’s
presentation.2 Nueva Esperanza Housing and Economic Development, a Residential
Community Organization (RCO), opposed the application.           In addition, licensed
engineer Josh Castille (Castille) testified on behalf of neighbors who also opposed the
application. See R.R. at 60a-66a. At the conclusion of the hearing, the ZBA denied
Applicants’ request for a use variance and a special exception. Applicants appealed
from the ZBA’s decision to the trial court which remanded the matter to the ZBA to
determine whether special exception approval would be granted if the outdoor
industrial processes involving the use of equipment for cutting, shredding,
compressing or packing were more than 300 feet from the residential multi-family
(RM-1) and/or residential single-family attached (RSA-5) zoning district parcels, as
set forth on the relevant zoning map.
             On October 12, 2016, the ZBA held the remand hearing. Applicants
presented revised plans and requested a special exception and a use variance for a
recycling plant for storage and removal of recyclables and for the purchase and
storage of cars and scrap metal. The revised plans excluded any cutting, shredding,

       2
         For the most part, Martinez answered basic questions about the Property and the
junkyard’s operations.
                                           2
compressing or packing activities. The ZBA incorporated all exhibits and testimony
from the first hearing as part of the remand hearing record. Applicants supplemented
the record with zoning records reflecting that St. Henry’s Church (St. Henry’s)
currently had a permit to operate a day care, a Catholic Service Office, and an
Evangelization Center with a chapel. Applicants argued that although St. Henry’s is
in a residential district and their closest residential neighbor, it is not used as a
residence, and therefore the Philadelphia City Code (Zoning Code) setback
requirement should not apply.3 Martinez did not appear at the remand hearing,
instead relying solely on the presentation of counsel.
                Nearby neighbors Brian Mast (Mast), Deb Ortez Vasquez (Vasquez),
and Shaylo Lopez (Lopez) testified in opposition to the application. Mast’s counsel,
Peter Hillman, also asserted that Applicants were in violation of a consent order
Applicants had made with the City that required them to clean the Property and cease
operations until ZBA approval was obtained. See R.R. at 95a-96a. Vasquez, who
works at Esperanza Health Center located adjacent to the Property, explained that
there is only a partial wall that would separate this proposed use from her workplace.
See R.R. at 96a-97a. Lopez reported that she lives behind the Property, that the
Property has an odor of oil and that she has observed trash, such as oil cans and “a
big load of stuff” on the Property.              R.R. at 97a.       In addition, City Planning
Commission Representative Ron Bednar (Bednar) testified in opposition to the
requested special exception and use variance, noting that Applicants had not
sufficiently addressed neighborhood impacts and health issues caused by the
proposed use. See R.R. at 98a. Bednar further related that the Zoning Code required
spacing to be measured from lot-to-lot. See id.




      3
          The zoning records showed that St. Henry’s was zoned residential until at least 1998.
                                                  3
                At the conclusion of the remand hearing, the ZBA denied Applicants’
application in its entirety. The ZBA determined, in relevant part, that the Property
does not meet applicable distancing requirements and would need a use variance as
opposed to a special exception. The ZBA also determined that Applicants failed to
meet their burden for a use variance because they did not (1) meet the requisite
unnecessary hardship, (2) identify a unique physical characteristic or circumstance of
the Property that would prevent its use for a permitted purpose, (3) prove that the
requested variance is the least necessary to afford relief, or (4) establish that the
proposed use will not have a detrimental impact upon the public health, safety or
welfare of the community.
                In addition to denying the use variance, the ZBA determined that
Applicants failed to meet the less stringent special exception requirements because
the proposed use would cause congestion in the public streets, impair the use of
adjacent conforming properties and endanger the public health. The ZBA further
ruled that Applicants did not meet their initial burden of proving that the proposed
use would not have the specific detrimental impacts provided in Section 14-
303(7)(e)(.2) of the Zoning Code.4 Applicants appealed to the trial court. On July 7,

      4
          Section 14-303(7)(e)(.2) of the Zoning Code provides:
                Specific Detrimental Impacts on the Neighborhood.
                The applicant shall have the initial duty of presenting objective
                evidence, and the burden of proof, that the grant of a special
                exception will not cause the following specific detrimental impacts to
                the neighborhood beyond that which normally might be expected
                from the proposed use:
                (.a) Congestion in the public streets or transportation systems;
                (.b) Overcrowding the land;
                (.c) Impairing an adequate supply of light and air to adjacent property;
                (.d) Burdening water, sewer, school, park, or other public facilities;
                (.e) Impairing or permanently injuring the use of adjacent conforming
                properties;
                (.f) Endangering the public health or safety by fire or other means; or
                (.g) Inconsistency with the Comprehensive Plan of the City.
                                                   4
2017, the trial court, without taking evidence, affirmed the ZBA’s decision.
Applicants appealed to this Court.5
                Applicants first argue that the trial court erred by affirming the ZBA’s
denial of a special exception because the ZBA’s decision was not supported by
substantial evidence. Specifically, Applicants contend they presented evidence that
the proposed use satisfied the Zoning Code’s objective requirements, entitling them
to the presumption that the proposed use was consistent with the health, safety, and
welfare of the neighborhood; the objectors did not submit evidence of detrimental
impacts beyond bald assertions, personal opinions and speculation; and, if objectors
met their burden, they did not show that the detrimental impacts were of a nature not
normally associated with a junk and salvage yard.
                With respect to special exception approval, Section 14-303(7)(e) of the
Zoning Code provides, in relevant part:

                Criteria for Review and Action by the Zoning Board.
                The [ZBA] must approve, or approve with conditions, the
                application for a special exception if it determines that the
                criteria in [Sections] 14-303(7)(e)(.1) and [] 14-
                303(7)(e)(.2) [of the Zoning Code] below have been met,
                unless the [ZBA] finds that the objectors, if any, satisfied
                the criteria in [Section] 14-303(7)(e)(.3) [of the Zoning
                Code]. . . .


R.R. at 140a.
       5
              Where the trial court has taken no additional evidence, appellate
              review is limited to determining whether the [ZBA] committed an
              error of law or a manifest abuse of discretion. Hertzberg v. Zoning
              [Bd.] of Adjustment, . . . 721 A.2d 43, 46 ([Pa.] 1998). An abuse of
              discretion will be found only where the [ZBA’s] findings are not
              supported by substantial evidence. Id. Substantial evidence is ‘such
              relevant evidence as a reasonable mind might accept as adequate to
              support a conclusion.’ Id.
Dowds v. Zoning Bd. of Adjustment, 165 A.3d 75, 76 n.1 (Pa. Cmwlth. 2017). By April 6, 2018
order, the ZBA was precluded from filing a brief.


                                             5
            (.1) Specific Conditions of Use.
            The applicant shall have the initial duty of presenting
            evidence, and the burden of proof, that the proposed use
            meets the definition for a use permitted by special
            exception, that all dimensional standards are satisfied, and
            that the application complies with all the criteria and meets
            all the conditions applicable to the proposed use, including
            all applicable use-specific standards in [Section] 14-603
            [of the Zoning Code] (Use-Specific Standards).

Phila., Pa. Code § 14-303(7)(e) (2016) (text emphasis added). Section 14-603(9)(b)
of the Zoning Code specifies that “[j]unk and salvage yards and buildings may not be
located within 150 [feet] of any [r]esidential district.”   Phila., Pa. Code § 14-
603(9)(b) (2016). Further, Section 14-603(9)(c) of the Zoning Code requires that

            [i]f the junk and salvage yard/building is located in any
            district other than the [heavy industrial] I-3 or [port
            industrial] I-P, a masonry wall, not less than eight [feet]
            in height and not more than 12 [feet] in height, shall be
            constructed and maintained in good condition around
            all property boundaries abutting a zoning district other
            than I-3 or I-P. All activities and stored materials must be
            confined to the walled-in area. There may be no stacking of
            material above the height of the masonry wall, but
            moveable equipment used in the conduct of junk or salvage
            activities may exceed that height.

Phila., Pa. Code § 14-603(9)(c) (2016) (emphasis added). Finally, Section 14-202(1)
of the Zoning Code mandates that

            [u]nless otherwise expressly stated, when the provisions of
            this Zoning Code require that two or more uses be separated
            by some minimum distance, the separation distance shall be
            measured from lot line to lot line along the shortest
            imaginary line between the subject lots. Where uses are
            required to be separated by some minimum distance from a
            zoning district boundary, the separation distance shall be
            measured from the lot line to the zoning district boundary
            along the shortest imaginary line between the lot and the
            zoning boundary.


                                         6
Phila., Pa. Code § 14-202(16) (2016) (emphasis added).
             Here, the ZBA denied the special exception because Applicants did not
meet the applicable use-specific standards in Sections 14-603(9)(b) and (c) of the
Zoning Code. With respect to Section 14-603(9)(b) of the Zoning Code, the ZBA
concluded:

             16. It is undisputed that the Property is adjacent to an RM-1
             Residential District. [Castille] . . . testified, and presented
             exhibits showing, that the Property is within 150 feet of
             residentially zoned properties other than the church
             property. Applicant[s] did not present any expert witness to
             challenge [] Castille’s findings. Indeed, Applicant[s’]
             attorney . . . appeared to rely on those findings in proposing
             a scaled back use that would occupy only that portion of the
             [P]roperty identified by [] Castille as outside of the 150 foot
             setback area.
             17. With respect to Applicant[s’] argument that the church
             property is not a residential use and should not be
             considered in determining setback requirements, the [ZBA]
             notes that churches are permitted by right in most
             residential districts, including RM-1. The zoning records
             submitted by Applicant[s] do not show the existing use at
             the church property to have been permitted by variance; but
             a change in use permitted by variance would not, in any
             case, change the property’s base zoning classification or
             affect distancing requirements.
             18. The church property is located in a residential district.
             That residential district is within 150 feet of the Property,
             measured to its nearest property line. The proposed salvage
             yard therefore requires a use variance.
             19. The [ZBA] notes that Applicant[s’] argument that
             setback requirements can be met by confining the use to a
             limited, interior portion of the lot is flawed on a second,
             independent ground. The scaled back use proposed on
             remand would not satisfy the requirement that salvage yards
             be a minimum of two acres in size. Applicant[s] cannot use
             a limited portion of the lot for purposes of meeting setback
             requirements and simultaneously use the [P]roperty in its
             entirety to meet size requirements.

                                           7
R.R. at 124a. The ZBA stated that these conclusions are supported by Castille’s
unrebutted testimony, see R.R. at 60a-64a, and the accompanying exhibits. See R.R.
at 100a-101a. After a thorough review of the record, this Court rules that the ZBA’s
decision denying the special exception is supported by substantial evidence. Because
Applicants cannot meet “all applicable use-specific standards in [Section] 14-603” of
the Zoning Code, the trial court properly affirmed the ZBA’s denial of Applicants’
request for a special exception.6 Philadelphia Code § 14-303(7)(e)(.1) (emphasis
added).
               Applicants next assert that the trial court erred by affirming the ZBA’s
denial of a use variance because the ZBA’s decision was not supported by substantial
evidence. Specifically, Applicants contend that expert testimony was not needed7 and
Martinez’ testimony and his counsel’s submission of maps and photographs were
sufficient to show unnecessary hardship, lack of adverse impact to the public interest
and the variance is the minimum variance necessary to afford relief.
               The law is well-settled:

               An applicant seeking a variance must prove that
               unnecessary hardship will result if the variance is denied
               and that the proposed use is not contrary to the public
               interest. When an applicant seeks a variance for a property
               located in the City, the ZBA must also consider the factors
               set forth in the Zoning Code. Essentially, an applicant
               seeking a variance pursuant to the Zoning Code must show:
               (1) the denial of the variance will result in unnecessary
               hardship unique to the property; (2) the variance will not
               adversely impact the public interest; and, (3) the variance is
               the minimum variance necessary to afford relief. The
               burden on an applicant seeking a variance is a heavy


       6
           Because this Court agrees with the ZBA that Applicants did not satisfy Section 14-
603(9)(b) of the Zoning Code’s setback requirement, it need not address whether Applicants met
any other special exception requirements.
        7
          Applicants are correct that expert testimony is not required, however, the ZBA did not base
its decision on the lack thereof.
                                                 8
               one, and the reasons for granting the variance must be
               substantial, serious and compelling.

Liberties Lofts LLC v. Zoning Bd. of Adjustment, 182 A.3d 513, 529-30 (Pa. Cmwlth.
2018) (footnote and citations omitted; emphasis added). Further,

               [t]his 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.

Id. at 531 (quoting Marshall v. Phila. Zoning Bd. of Adjustment, 97 A.3d 323, 329
(Pa. 2014)).
               Applicants contend that their evidence of the Property’s dimensions,
grade and location was sufficient to meet the unnecessary hardship requirement.
However, as the ZBA stated:

               29. Applicant[s] ha[ve] not shown that denial of the
               requested variances will result in unnecessary hardship, as
               defined by the relevant [Zoning] Code provisions and
               applicable case law. . . .
               30. Applicant[s’] attorney argued that the proposed salvage
               yard is the only viable use of the Property due to its grading
               and narrowness. He did not, however, present evidence or
               expert testimony relating to the grading, or even offer a
               description. He also did not present evidence of attempts to
               use or market the Property for any other use permitted in
               the [I]-2 [Zoning District] classification. Applicant[s’]
               claim of hardship is supported only by [their] attorney’s
               conclusory, unsupported representation that the Property
               cannot be used for another purpose. This is not sufficient to
               satisfy [their] burden of establishing hardship.
               31. Applicant[s’] failure to show hardship is sufficient, in
               itself, to require denial of the requested variances. The
               [ZBA] notes, however, that Applicant[s] ha[ve] also [] not
               established that the remaining criteria for grant of a
               variance are satisfied.

                                              9
            32. Applicant[s] ha[ve] not demonstrated that the proposed
            use is the least necessary to afford relief or that the
            proposed use will not have a detrimental impact upon the
            public health, safety, or welfare.

R.R. at 120a.
            “In order to establish unnecessary hardship, a party must demonstrate
that the property cannot be used for a permitted purpose, that the cost of conforming
the property for a permitted purpose is prohibitive, or that the property has no value
for a permitted purpose.” Bawa Muhaiyaddeen Fellowship v. Phila. Zoning Bd. of
Adjustment, 19 A.3d 36, 40 (Pa. Cmwlth. 2011) (emphasis added). Here, Applicants
did not attempt to demonstrate any of those factors. Their mere submission of the
dimensions, grade and location of the Property clearly does not satisfy any of the
required elements to establish unnecessary hardship. See id. Accordingly, the trial
court properly affirmed the ZBA’s denial of a use variance.
            Lastly, Applicants declare that the trial court erred by not ordering the
ZBA to grant Applicants a use variance for an expansion of a permitted non-
conforming use. Initially,

            [a]lthough the Pennsylvania Supreme Court has indicated
            that, to be approved, expansion of a non-conforming use
            must ‘meet the ordinary requirements for the grant of a
            variance,’ Jenkintown Towing Serv[.] v. Zoning Hearing
            [Bd.] of Upper Moreland [Twp.], . . . 446 A.2d 716, 720
            ([Pa. Cmwlth.] 1982) (quoting Walter v. Zoning [Bd.] of
            Adjustment (Phila[.]), . . . 263 A.2d 123, 126 ([Pa.]1970)),
            some of those requirements are more easily satisfied when
            the existing use is non-conforming.

Arter v. Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1229-30 (Pa. Cmwlth.
2007) (footnote omitted). Further,

            [t]he natural expansion doctrine provides that ‘a
            nonconforming use cannot be limited by a zoning ordinance
            to the precise magnitude thereof which existed at the date of
            the ordinance; it may be increased in extent by natural

                                         10
            expansion and growth of trade, neither is it essential that its
            exercise at the time the ordinance was enacted should have
            utilized the entire tract upon which the business was
            being conducted.’ Nettleton v. Zoning [Bd.] of Adjustment
            of the City of Pittsburgh, . . . 828 A.2d 1033, 1037 n.3 ([Pa.]
            2003) (quoting Humphreys v. Stuart Realty, . . . 73 A.2d
            407, 409 ([Pa.] 1950)).

Arter, 916 A.2d at 1230 (emphasis added).
            At the outset, Applicants appear to imply that a remand is required
because the ZBA failed to address the issue of whether Applicants were entitled to a
variance as an expansion of a permitted non-conforming use.             The following
discussion occurred on the record during the remand hearing:

            [ZBA Attorney]: How much area does [the junkyard
            recycling facility] occupy?
            [Applicants’ Counsel]: It’s not a large area. And most of
            this is only 15 feet wide and runs back approximately 150
            feet beyond the setback.
            [ZBA Attorney]: Wouldn’t it violate the requirement that
            any junkyard be at least two acres in size?
            [Applicants’ Counsel]: This would be an expansion of
            4,500, so our entire operation would exceed the two acres. I
            understand what you’re saying. But we need the additional
            space. So it’s not as though we’re operating a junkyard on
            a small lot. It’s actually a junkyard or recycling – we
            prefer to call it recycling – on an existing lot, which then
            would expand into this, which would be a bigger area
            for what we are doing.
            [ZBA Attorney]: Is it different tha[n] what was originally
            proposed here?
            [Applicants’ Counsel]: Yeah. Originally the proposal was
            to allow the entire lot from Cayuga to Annsbury for cutting,
            shredding, dismantling, and all those operations. We have
            withdrawn that. We no longer want to do that.
            As a matter of fact, I’m told that some of the crushing –
            that’s old school. They don’t do that anymore. That’s not

                                          11
             how the business operates these days. So the shredding and
             the crushing is no longer done in the more modern
             operations.
             Chairperson: Okay.
             Mr. Toliver: Good afternoon. Walter Toliver, 4261 North
             Fifth Street, Philadelphia, Pennsylvania 19140. I’m here on
             behalf of the Esperanza Housing and Economic
             Development, which is one of the [RCOs] for the
             community.
             At the initial hearing, we submitted a letter in opposition to
             this application. We continue to object to the proposed use.
             Even though [Applicants’ counsel] is saying that it’s an
             expansion of an existing business, it’s actually a separate
             lot. And he’s looking to have a junkyard on this particular
             [P]roperty. . . .

R.R. at 94a (emphasis added). This colloquy was the entirety of any mention of an
expansion. Given the context of the above statements, the ZBA’s only mention of
the expansion was in Finding of Fact 36, wherein, it stated:

             When asked whether the area of the proposed junkyard, as
             identified by [Martinez] for distancing purposes, would
             violate the requirement that junkyards be at least two acres
             in size, [Applicants’ counsel] contended the proposed use
             should be treated as an ‘expansion’ of an existing junkyard
             [Martinez] operates on an adjacent property so that ‘our
             entire operation would exceed the two acres.’ . . .

R.R. at 114a.
             Because Applicants’ counsel never requested a variance as an expansion
of a permitted non-conforming use, much less presented any evidence to support that
the Property was in fact an expansion of a non-conforming use, the trial court did not
err by not ordering the ZBA to grant Applicants a use variance for an expansion of a
permitted non-conforming use.




                                          12
For all of the above reasons, the trial court’s order is affirmed.


                             __________________________
                             ANNE E. COVEY, Judge




                              13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Angel Martinez and Railroad            :
Recovery, Inc.,                        :
                        Appellants     :
                                       :
                  v.                   :
                                       :
Zoning Board of Adjustment of the      :   No. 1116 C.D. 2017
City of Philadelphia                   :



                                     ORDER


            AND NOW, this 25th day of July, 2018, the Philadelphia County
Common Pleas Court’s July 7, 2017 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
