          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Abbotts Square Condominium             :
Association, Sherri Tiller-Nikazy,     :
Jean Dardzinski and Heather Downs      :
                                       :
                 v.                    :      No. 1645 C.D. 2018
                                       :      Submitted: March 26, 2020
City of Philadelphia, Zoning Board     :
of Adjustment and City of Philadelphia :
                                       :
Appeal of: Abbotts Resurrection, LP    :

BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                     FILED: May 8, 2020

             Abbotts Resurrection, LP (Applicant) appeals an order of the Court of
Common Pleas of Philadelphia County (trial court) which reversed the decision of
the City of Philadelphia Zoning Board of Adjustment (ZBA) granting a variance to
The Philadelphia Code (Code) to Applicant. Applicant argues that the trial court
erred in reversing the decision of the ZBA as the ZBA did not abuse its discretion or
commit an error of law. Applicant also asserts that because the trial court found that
the ZBA’s findings of fact failed to consider unnecessary hardship, the matter should
be remanded to the ZBA for further consideration. Discerning no error below, we
affirm.
                                       I.     Background
               Applicant owns real property at 530 South 2nd Street, Philadelphia,
Pennsylvania (Property), which is located within the South Street/Head House
Square area control district (Control District) of the Center City Overlay District
(Overlay District). Applicant intends to enter into a lease agreement with a tenant
who will operate an “Escape the Room” in the mezzanine level of the Property. An
“Escape the Room” is a “puzzle game where groups of people use clues that are
provided by the staff to solve the puzzle and thus escape the room.” Philadelphia
ZBA, Dec. 2017, Finding of Fact (F.F.) No. 8. The “Escape the Room” would
occupy about 3,800 square feet of the second floor of the Property. F.F. No. 9.


               The first four floors of the Property contain commercial and residential
space and a separately owned residential condominium occupies the top four floors.
Trial Ct. Op., 10/15/2018 at 1. The proposed entry to the “Escape the Room” is
directly adjacent to the residential condominium entrance. Id. The Property includes
70,000 square feet that was previously authorized as retail space. F.F. No. 9.


               On August 7, 2017, Applicant submitted an application for a variance
to the existing permitted uses of the Control District to the ZBA. The permitted uses
for the Control District do not include “assembly and entertainment.”1 Philadelphia
Zoning Code (Zoning Code) §14-505(5), Table 14-502-2.                      The Code defines
assembly and entertainment as “[u]ses that provide gathering places for participant


       1
         On June 27, 2017, Applicant applied to the Philadelphia Department of Licenses and
Inspections (L&I) for approval of a “tenant fit-out of Escape the Room” in Suite 109A of the
Property. F.F. No. 1. L&I issued a notice of refusal on July 7, 2017, citing “assembly and
entertainment” as a prohibited use for the Control District. F.F. No. 2. Applicant then appealed
to the ZBA for a variance to the Code, and the variance application is the matter presently before
this Court.


                                                2
or spectator recreation, entertainment, or other assembly activities. Assembly and
entertainment uses may provide incidental food or beverage service for on- or off-
premise consumption.”      Code §14-601(7)(c).     The ZBA found that Applicant
established entitlement to the requested variance and granted the request for variance
on December 6, 2017. The ZBA granted the variance with two provisos: 1) no sale
of food or beverages; and 2) maximum occupancy of 30 individuals, including staff.
Applicant’s Br. at 6. In making its decision, the ZBA considered the low intensity
nature of the proposed use, the past and present uses of the Property, the nature of
the surrounding area, and the Property’s underlying, commercial zoning.
Conclusions of Law Nos. 7, 10, 11.


             Abbotts Square Condominium Association (Objector), joined by Sherri
Tiller-Nikazy; Jean Dardzinski; and Heather Downs, appealed the decision of the
ZBA to the trial court. Objector argued that the ZBA abused its discretion and
committed an error of law by granting the variance. Objector asserted that there was
not a requisite finding of hardship to properly grant the variance. Additionally,
Objector argued that it was an abuse of discretion and error of law to grant the
variance without addressing public safety and welfare issues. Finally, Objector
alleged that without addressing the minimum variance that would afford relief when
granting the variance, the ZBA abused its discretion and committed an error of law.
Trial Ct. Op., 10/15/2018 at 11.


             In opposition to the granting of the variance, Objector presented
petitions signed by concerned condominium residents. Forty-two individuals in total
signed the petition in September 2017. The language of the petition reads:




                                          3
             We, the undersigned, are concerned citizens who urge our
             leaders to act now to prohibit the “Escape the Room”
             tenant or any similar undesirable tenant, in the mezzanine
             space … due to concerns of neighborhood residents
             regarding congestion, emergency egress, noise filled
             activities, encouraging loitering, and limiting parking in
             the Loading Zones immediately near the Abbotts Square
             Condominium entrance at 530 S. 2nd St.

Reproduced Record (R.R.) at 210a-16a.


             The petition also identifies concerns regarding security and fire safety
because “Escape the Room” patrons would have access to a condominium fire exit
door that currently serves 171 residential condominiums. The petition organizers
cite a previously issued variance to the Property for non-compliance with current
fire safety codes as applied to the 2nd St. fire stairs. The petition further suggests
that the potential “Escape the Room” space should instead remain in compliance
with an Acceptable Use as defined by the Code. R.R. at 210a-16a.


             The trial court reversed the decision of the ZBA, stating that the ZBA
failed to establish hardship, to address public safety and welfare, and to consider the
minimum variance that would afford relief. The trial court also asserted that
Applicant did not meet the burden of proof required to demonstrate evidence of
hardship as Applicant did not put on evidence in this matter. Trial Ct. Op.,
10/15/2018 at 12. Applicant subsequently filed a Motion for Reconsideration to the
trial court on July 12, 2018. The request was denied on July 30, 2018. Applicant
appeals to this Court.




                                          4
                                       II.     Discussion
              On appeal,2 Applicant argues that the trial court erred in reversing the
decision of the ZBA granting the use variance for the Property. Applicant also
asserts that the trial court erred in failing to remand the variance matter to the ZBA
because the trial court failed to expressly state its findings of fact with respect to the
issue of unnecessary hardship.


              A. Granting the Use Variance and Unnecessary Hardship
              A variance is a departure from the exact provisions of a zoning
ordinance. A variance may be granted where a strict enforcement of the literal terms
of the ordinance will result in an unnecessary hardship upon a particular property
over and above the hardship that may be imposed on all properties in that
community. Brennen v. Zoning Bd. of Adjustment, 187 A.2d 180 (Pa. 1963). The
burden of proof in obtaining a variance is upon the landowner, and the burden on the
applicant seeking a zoning variance is heavy. Pham v. Upper Merion Twp. Zoning
Hearing Bd., 113 A.3d 879 (Pa. Cmwlth. 2015); Yeager v. Zoning Hr’g Bd. of City
of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001). Variances should be granted
sparingly and only under exceptional circumstances. Pham, 113 A.3d at 891.


              In the present case, Applicant requests a use variance, amounting to a
departure from the Allowed Use provisions outlined in the Code. The quantum of
proof required to establish unnecessary hardship is lesser when a dimensional

       2
          When, as here, a trial court accepts no additional evidence, “our review is limited to
considering whether the zoning hearing board erred as a matter of law or abused its discretion.”
S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 119 n.1 (Pa.
Cmwlth. 2012). “An abuse of discretion occurs when the findings of the [ZBA] are not supported
by substantial evidence.” MarkWest Liberty Midstream & Res., LLC v. Cecil Twp. Zoning Hr’g
Bd., 102 A.3d 549, 553 n.6 (Pa. Cmwlth. 2014).



                                               5
variance, as opposed to a use variance, is sought. Hertzberg v. Zoning Bd. of
Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998). 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.”
Marshall v. City of Philadelphia, 97 A.3d 323, 329 (Pa. 2014) (quoting Hertzberg
721 A.2d at 47). However, 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. Id. at 330.


                Under the Code, the ZBA “may, after public notice and public hearing
… [a]uthorize variances from the terms of this Zoning Code.”                             Code §14-
303(4)(a)(.3). The ZBA must determine that each criteria for a variance set forth in
the Code is met prior to granting a variance.3 When a request for a variance involves

      3
          Code §14-303(8)(e)(.1) states:
                        (.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;
                        (.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;



                                                  6
a use variance, the ZBA must consider additional criteria to find “unnecessary
hardship.”4



                     (.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.
       Code §14-303(8)(e)(.1).

       4
       Code §14-303(8)(e)(.2) states:
                     (.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.
Code §14-303(8)(e)(.2).


                                                7
             “The Zoning Board shall, in writing set forth each required finding for
each variance that is granted … and to the extent that a specific finding is not relevant
to the decision, shall so state.” Code §14-303(8)(e)(.1). Objector argues that the
trial court was correct in reversing the decision of the ZBA because there was no
evidence before the ZBA from which unnecessary hardship could be established.
Without a record of unnecessary hardship, a conclusion that an unnecessary hardship
existed was not supported by substantial evidence. The ZBA abuses its discretion if
its findings are not supported by substantial evidence, or relevant evidence which a
reasonable mind would accept as adequate to support the conclusion reached.
Marshall, 97 A.3d at 331.


             While the ZBA opinion quotes the language contained in Code §14-
303(8)(e)(.1)-(.2), which outlines the burden that must be met by an applicant for a
variance - and specifically, a use variance - to be granted, the opinion does not apply
these criteria to the facts of Applicant’s request. Conclusions of Law Nos. 3-4. The
ZBA does not conduct an analysis of “unnecessary hardship,” instead simply
concluding that “Applicant here established entitlement to the requested variance.”
Conclusion of Law No. 7. Without evidence to support a finding of an “unnecessary
hardship,” the ZBA abused its discretion.


             Applicant argues that the record does contain sufficient evidence to
support the granting of the variance by the ZBA. Applicant cites the testimony of
Applicant’s witness, Mr. Blumfield, who stated: “We’re talking about commercial
[space] that’s sandwiched between one level of parking below and what used to be
one level of parking above which is now apartments, my apartments.” R.R. at 72a.
Applicant attempts to frame this comment as a description of the “unique location
of the [P]roperty.” Applicant’s Br. at 12. Mr. Blumfield does not expand upon this

                                           8
statement and does not characterize the Property as “sandwiched” for the purposes
of establishing its uniqueness. Taken within the greater context of the deposition,
this statement was presented as a defense to potential noise complaints from
condominium residents. R.R. at 72a.


             Applicant also points to evidence of the Property’s previous approval
for non-residential use and history of use for assembly and entertainment as
demonstrating an unnecessary hardship if the variance is not granted. Applicant’s
Br. at 12. The ZBA did take into account the past uses of the Property including its
history of use for higher intensity assembly and entertainment uses. Conclusions of
Law Nos. 8-9.      “[T]here is no constitutionally protected right to change a
nonconforming use to another use not allowed by the zoning ordinance, nor may an
additional nonconforming use be appended to an existing nonconformity.”
Pietropaolo v. Zoning Hr’g Bd. of Lower Merion Twp., 979 A.2d 969, 977 (Pa.
Cmwlth. 2009). Therefore, previous assembly and entertainment uses that violate
the Code do not support the present appeal for a use variance. Additionally, the four
criteria in Code §14-303(8)(e)(.2) that Applicant must meet in order to receive a
grant of a use variance do not include a reference to the historical uses of the
property. Previous examples of assembly and entertainment uses on the property do
not support “unique physical circumstances or conditions” that prevent “strict
conformity” with the Code. Code §14-303(8)(e)(.2)(a)-(b).


             Therefore, the trial court did not err in reversing the decision of the
ZBA, which granted Applicant’s request for a use variance. The ZBA abused its
discretion by granting a variance without substantial evidence to support that
finding. Applicant did not provide evidence to prove that an “unnecessary hardship”
would result if a variance to the Code is not granted. The ZBA was not able to make

                                         9
a determination as to the existence of an “unnecessary hardship” without evidence
of the record for this issue.


                                     B. Remand to the ZBA
               Applicant argues that if this Court concludes that the ZBA’s grant of
the variance was inappropriate on the basis of lack of substantial evidence to support
the finding, then the matter should be remanded to the ZBA to make specific findings
and to expressly state its basis for finding unnecessary hardship. Applicant contends
that the trial court abused its discretion and committed errors of law in not remanding
the case to the ZBA. Applicant expresses an intent to present additional evidence,
if remand is granted, to demonstrate the “unattractive” quality of the Property for
most permitted uses. Applicant asserts that this evidence would show that an
“unnecessary hardship” results without the grant of a use variance. Applicant’s Br.
at 15-16.


               Applicant filed a Motion for Reconsideration which was denied on July
30, 2018. Applicant requested that the case be remanded to the ZBA.5 On appeal to


       5
           Applicant requested remand to the ZBA for the first time in its motion for reconsideration.
Applicant notes that the verified statement of Christopher R. Cordaro, Vice President of EB Realty
Management Corp., was presented before the trial court within Applicant’s motion for
reconsideration as a summary of the evidence to be considered by the ZBA if the trial court
remanded the matter. Applicant indicates that this evidence goes to “unnecessary hardship,” which
the trial court determined to be lacking in the evidence of record for the ZBA to appropriately grant
a use variance within its discretion. Applicant’s Br. at 15-16.
         Objector correctly argues that Applicant inappropriately requests from this Court relief
from the trial court’s July 30, 2018, order denying Applicant’s motion for reconsideration.
Objector’s Br. at 27. A trial court order denying reconsideration is not an appealable order. City
of Philadelphia v. Glim, 613 A.2d 613 (Pa. 1992); In re Estate of Merrick, 247 A.2d 786 (Pa.
1968). Therefore, we do not consider Objector’s argument regarding the invalidity of the appeal
of a motion for reconsideration within this opinion. We turn our analysis instead to the question



                                                 10
this Court, Applicant requests the same remedy of remand to the ZBA for further
consideration.


              “A [trial] court faces compulsion to hear additional evidence in a zoning
case only where the party seeking the hearing demonstrates that the record is
incomplete because the party was denied an opportunity to be heard fully, or because
relevant testimony was offered and excluded.” Caln Nether Co., L.P. v. Bd. of
Supervisors of Thornbury Twp., 840 A.2d. 484, 498 (Pa. Cmwlth. 2004). If a party
does not demonstrate that it was denied this opportunity through its argument on
appeal, the trial court does not abuse its discretion by refusing to expand the record.
Reformed Seventh Day Adventist Church, Inc. v. Phila. Zoning Bd. of Adjustment,
561 A.2d 1324 (Pa. Cmwlth. 1989).


              Applicant argues that the ZBA made the record inadequate by not
including sufficient evidence regarding unnecessary hardship. Applicant contends
that while evidence was presented by Applicant to support the unnecessary hardship
required to grant a variance, the ZBA did not include an explanation of its reasoning
in its decision. In supporting its position, Applicant cites Riverfront Development
Group, LLC v. City of Harrisburg Zoning Hearing Bd., which held: “Where the
record is not adequate for appellate review, the case should be remanded to the
[ZBA] to develop the record and make the necessary findings.” 109 A.3d 358, 370
(Pa. Cmwlth. 2015).




of whether a remand to the ZBA is appropriate for the purpose of admission of new evidence by
Applicant under Applicant’s appeal of the trial court’s July 12, 2018, order.


                                             11
             However, Applicant fails to acknowledge that the absence of evidence
from the record to support Applicant’s unnecessary hardship does not result from an
inadequacy created by the ZBA. The trial court stated that Applicant “was given
ample opportunity to present evidence of any unnecessary hardship, and the [ZBA]
did not preclude or limit Applicant’s ability to present any witnesses or other
evidence that may have supported its claim of unnecessary hardship.” Trial Ct. Op.,
10/15/2018 at 12. Applicant chose to simply present the testimony of its witness,
Mr. Blumfield, who explained that the Property is “sandwiched.” R.R. at 72a.
Applicant was at liberty to expand upon this testimony and to provide additional
evidence to the hardship that would be suffered by Applicant in the absence of a use
variance. Applicant did not exercise this opportunity before the ZBA.


             The record further demonstrates that the ZBA highlighted the
requirement and the importance of Applicant’s burden to prove unnecessary
hardship during the hearing. R.R. at 85a-89a. The ZBA’s counsel stated during his
questioning of the ZBA Chairman at the November 29, 2017, ZBA Hearing that “…
there is a necessity to prove the hardship.” R.R. at 87a. The ZBA did not prevent
Applicant from putting on evidence concerning unnecessary hardship, instead
providing an explicit reminder of this mandatory requirement.


             To grant Applicant’s requested remand would be to provide Applicant
with a “second bite at the apple.” Applicant did not present evidence of unnecessary
hardship to the ZBA at the zoning hearing. Where the trial court does not accept
additional evidence — as in the present case — the ZBA is the initial, and ultimate,
factfinder. See German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa.
Cmwlth. 2012). While Applicant argues that the trial court cannot replace the
discretion of the ZBA to determine the credibility of evidence for its own, the trial

                                         12
court does not attempt to assume the role of the ZBA. The trial court determined
that because the evidence of record was insufficient to support a finding of an
unnecessary hardship in support of a use variance, the ZBA abused its discretion and
committed an error of law by granting Applicant a variance. However, in the trial
court’s opinion, the lack of evidence to demonstrate unnecessary hardship was not a
result of an error by the ZBA, but a failure of Applicant to present evidence of this
kind. For the foregoing reasons, we affirm the decision of the trial court and decline
to remand the matter to the ZBA.


                                              _____________________________
                                              J. ANDREW CROMPTON, Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Abbotts Square Condominium             :
Association, Sherri Tiller-Nikazy,     :
Jean Dardzinski and Heather Downs      :
                                       :
                 v.                    :   No. 1645 C.D. 2018
                                       :
City of Philadelphia, Zoning Board     :
of Adjustment and City of Philadelphia :
                                       :
Appeal of: Abbotts Resurrection, LP    :

                                  ORDER

            AND NOW, this 8th day of May 2020, we AFFIRM the order of the
Court of Common Pleas of Philadelphia County.


                                           ______________________________
                                           J. ANDREW CROMPTON, Judge
