IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Frank Garcia :

: No. 134 C.D. 2020

 :

: Argued: June 10, 2021

Appeal of: Frank Garcia and :

Kenneth Woods :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION 

BY JUDGE McCULLOUGH FILED: May 10, 2022

Frank Garcia and Kenneth Woods (Appellants) appeal the December 11, 

2019 order of the Court of Common Pleas of Philadelphia County (trial court), which 

affirmed the decision of the Philadelphia Zoning Board of Adjustment (ZBA) to grant 

a variance for property located at 2600-40 Hagert Street, Philadelphia (Property). The 

dispute concerned a project proposed by Spanish Capital Investment 5, LLC, and MYL 

Associates, L.P. (collectively, Applicant), to develop the Property, which had been 

abandoned for decades, in a manner that would include a multi-family residential use. 

Because the Property’s zoning classification allowed only for single-family residential 

uses, this proposal required a variance, which the ZBA granted.

Background

The Property is a rectangular, 45,664.6-square-foot lot located in the Olde 

Richmond section of Philadelphia. It is bounded by three streets—Almond, Hagert, 

and Boston. The Property’s zoning classification is RSA-5, which allows for single-
2

family residential use. The Property is abandoned and has been vacant for many years. 

(Trial Ct. Op. at 1-2; Reproduced Record (R.R.) at 760a-61a.)

Applicant initially filed a zoning/use permit application with the 

Philadelphia Department of Licenses and Inspections (L&I) in 2018, seeking to create 

a residential development at the Property. The proposal involved relocating the lot 

lines on the Property to create three new parcels—Parcels A, B, and C; constructing 

five, four-story structures for use as 30 residential dwelling units on Parcel A; and 

constructing 11, four-story structures for use as single-family dwellings on Parcel B. 

Applicant’s proposal required use variances for multi-family household living. On July 

31, 2018, L&I issued a Notice of Refusal, which Applicant appealed to the ZBA. On 

September 13, 2018, and October 18, 2018, Applicant met with the Olde Richmond 

Civic Association (ORCA) about the project. On September 18, 2018, ORCA 

submitted a letter of opposition to the project. (Trial Ct. Op. at 2.)

Applicant submitted the project for review by the Civic Design Review 

(CDR) of the Philadelphia City Planning Commission (PCPC) at PCPC’s meetings on 

October 2, 2018, and November 6, 2018. Following those meetings, PCPC sent a letter 

to the ZBA stating that it and the CDR supported the project and Applicant’s variance 

requests. However, a Philadelphia City Councilman, Mark Squilla, opposed the project 

and sent two letters to that effect to the ZBA. Id.

Following the refusal from L&I, and in response to Applicant’s meetings 

with ORCA and PCPC, Applicant altered the proposal in an effort to ameliorate some 

of the concerns that had been expressed by the community. The changes included: (1) 

a reduction of the building size on Parcel A; (2) a reduction of the total number of 

residential units by approximately 25%; (3) creation of a pedestrian walkway; (4) an 

increase in the amount of open area, rear yard depth, and side yard width; and (5) an 
3

increase in the landscaping and incorporation of existing trees (Revised Plan). Id. at 

3. The Revised Plan called for the erection of 10, four-story, two-family structures 

(duplexes) on Parcel A, and the erection of 11, four-story structures on Parcel B to be 

used as single-family dwellings. The Revised Plan thus provided for a total of 31 

residential units—a decrease of 10 units from the original proposal. 

On December 12, 2018, the ZBA held a hearing on the project to consider 

Applicant’s variance requests. Appellants, who are neighbors of the Property, opposed 

the development. Applicant’s project architect, Rustin Ohler, testified about the 

Property and the surrounding neighborhood. Ohler testified that Parcels A and B 

totaled over 24,800 square feet. Although the Property is zoned RSA-5 for singlefamily residences, Ohler noted that the Property is immediately adjacent to the 

Aramingo commercial corridor, and that it is near other properties that, although 

technically also zoned RSA-5, contain active commercial or industrial uses. Other 

neighboring lots, Ohler detailed, contain multi-family residences. With regard to 

concerns about parking and traffic congestion, Ohler explained that the proposal sought 

to provide off-street parking, that Applicant was willing to add three more parking 

spaces if the community agreed to other adjustments to the proposal, and that Applicant 

was willing to work with city authorities to improve existing traffic conditions. Ohler 

additionally noted that, if the Property was developed by-right to include only singlefamily residences, there would be no requirement that Applicant provide any off-street 

parking at all, which would increase congestion. (ZBA Findings of Fact (FOF) ¶¶10-

19; R.R. at 2a-4a.)

Also testifying on behalf of Applicant was a representative of Spanish 

Capital Investment 5, LLC, Keith Casey. Casey explained that, if Applicant’s 

development proposal was approved, Applicant would use corners of Parcel C to create 
4

a pocket park and community garden and grant either an easement or a lease for the 

community’s use. This arrangement would apply during the duration of a neighboring 

property’s lease of parking spaces on that Parcel, after which time a permanent 

easement could be granted to the community. (FOF ¶18.)

Multiple area neighbors appeared and testified in opposition to 

Applicant’s proposal, expressing concerns with the size, density, and multi-family use 

of the Property, as well as traffic congestion and parking problems. Jennifer Bazydlo, 

Esq., a neighborhood resident and attorney (and counsel for Appellants in this appeal), 

testified and argued in opposition, contending that Applicant had not demonstrated 

sufficient hardship to justify a variance, that the Property could be developed in a byright (single-family) manner, and that the proposal did not represent the minimum 

modification necessary to accommodate any hardship. Attorney Bazydlo asserted that 

the proposal was out-of-character with the neighborhood. She further contended that 

there were unpaid property taxes on the Property, and that under the applicable 

ordinance, a variance may not be granted until such taxes were paid. (FOF ¶¶26-28.)

ORCA Board Member and Zoning Head Christopher Sawyer represented 

ORCA at the hearing and voiced community opposition to the project. Sawyer 

emphasized that he was involved in the PCPC zoning remapping process, and that they 

had considered the best use for the Property, given that it had sat fallow and vacant 

since approximately 1980, and determined that zoning RSA-5 for single-family 

residences was appropriate. Sawyer expressed particular concern with the traffic 

congestion issues that he expected would follow from Applicant’s proposal. On crossexamination, Sawyer acknowledged that there are properties surrounding the Property 

that are zoned for commercial uses, and he agreed that many of the neighboring 

properties zoned for single-family use have been legalized or used as multi-family 
5

dwellings. Sawyer also acknowledged that PCPC voted in favor of approving 

Applicant’s development proposal and variance requests. (FOF ¶¶29-32.)

In closing, Applicant’s counsel, David Orphanides, Esq., emphasized that 

the project included off-street parking designed to reduce traffic impact, and that 

Applicant had made revisions in response to community feedback, but nothing was 

deemed acceptable. Attorney Orphanides noted that the project had been reduced to 

include only single-family residences and duplexes, and argued that the commercial 

and industrial uses directly adjacent to the Property would compromise the 

marketability of single-family residences. Thus, Attorney Orphanides suggested, the 

variance requested was de minimis. Attorney Orphanides argued that complying with 

the RSA-5 zoning classification presented a hardship because the size and dimensions 

of the lot would not allow it to be broken up into exclusively single-family residences 

in a way that would allow for the provision of off-street parking while still making the 

project economically viable. (FOF ¶¶33-35.)

After the December 12, 2018 hearing, the ZBA delayed its vote pending 

further negotiations between Applicant and ORCA. Those negotiations failed to yield 

an acceptable compromise. On February 6, 2019, the ZBA held another hearing and 

received additional testimony and evidence. At that hearing, Applicant presented 

evidence regarding its attempt to cooperate with ORCA, and detailed the reduced 

financial viability of any further departures from the Revised Plan. On March 20, 2019, 

the ZBA voted unanimously to grant Applicant’s requested use variance, allowing 

multi-family household living on Parcels A and B.
6

In its conclusions of law, the ZBA related the requirements for approval 

of a variance under the Philadelphia Zoning Code (Zoning Code or Philadelphia 

Zoning Code):

1

(a) that denial of the variance would result in unnecessary 

hardship;

(b) that applicant did not create the unnecessary hardship 

supporting grant of the variance;

(c) that the requested variance is the minimum variance 

necessary to afford relief and the least modification possible 

of the regulation in issue;

(d) that grant of the variance will be in harmony with the 

spirit and purpose of the Zoning Code; 

(e) that 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;

(f) that grant of 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;

(g) that grant of the variance will not adversely affect 

transportation or unduly burden water, sewer, school, park, 

or other public facilities;

(h) that 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

(i) that grant of the variance will not create significant 

environmental damage or increase the risk of flooding, either 

during or after construction.

(ZBA Conclusions of Law (COL) ¶4 (citing Philadelphia Zoning Code §14-

303(8)(e)(.1)).)

1 Phila., Pa. Zoning Code (2012), available at 

https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-203439 (last visited 

May 9, 2022).
7

The determination of “unnecessary hardship,” moreover, requires all of 

the following findings:

(a) that there are unique physical circumstances or conditions 

. . . peculiar to the property, and that the unnecessary hardship 

is due to such conditions . . . .

(b) that because of those physical circumstances or 

conditions, there is no possibility that the property can be 

used in strict conformity with . . . this [Z]oning [C]ode, and 

that authorization of a variance is therefore necessary to 

enable the viable economic use of the property;

(c) that the use variance, if granted, will not alter the essential 

character of the neighborhood . . . 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.

(COL ¶5 (citing Philadelphia Zoning Code §14-303(8)(e)(.2)).)2

With regard to hardship, the ZBA concluded that the “Property is a large 

consolidated lot with three street frontages, surrounded almost exclusively by 

commercial and industrial uses.” (COL ¶10.) The Property, the ZBA noted, “has 

remained vacant and blighted the neighborhood for decades, but Applicant now seeks 

to develop it as a mix of single-family homes and duplex condominiums.” Id. Finding 

that the size and dimensions of the Property established a sufficient hardship, the ZBA 

also concluded that this hardship was not self-imposed, that the requested variances 

were the minimum necessary to afford relief, and that the development would not be 

detrimental to public health, safety, or welfare. (COL ¶12.) With regard to the 

2 These requirements for the establishment of entitlement to a variance and for the 

determination of unnecessary hardship echo those set forth in the Pennsylvania Municipalities 

Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202. See 

section 910.2(a) of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a).
8

minimum-necessary criterion, the ZBA noted that roughly half of the project would be 

single-family dwellings as permitted in the RSA-5 zoning district, and that Applicant 

had revised the plans multiple times to comply with all applicable dimensional 

requirements and to reduce the number, density, and type of units as part of the PCPC 

review process, resulting in PCPC’s support for the project. (COL ¶13.) In that vein, 

the ZBA noted that Applicant had undertaken extensive good faith efforts to engage 

with the community to resolve concerns with the proposal, despite ORCA’s continued 

opposition. (COL ¶14.) The ZBA finally concluded that the project was consistent 

with the Philadelphia Zoning Code’s purpose and would not adversely impact public 

health, safety, or welfare, “including considerations of traffic, light and air, public 

facilities, or the environment.” (COL ¶15.) Accordingly, the ZBA determined that the 

requested variances were properly granted.

On April 1, 2019, Appellants filed an appeal of the ZBA’s Notice of 

Decision to the trial court. The trial court recognized that its review was limited to a 

determination of whether constitutional rights had been violated, an error of law had 

been committed, or findings of fact necessary to support the adjudication were not 

supported by substantial evidence. (Trial Ct. Op. at 5 (citing 2 Pa.C.S. §754(b); Lewis 

v. Civil Service Commission, 542 A.2d 519, 522 (Pa. 1988)).) Substantial evidence, 

the trial court correctly noted, is relevant evidence that a reasonable mind might accept 

as adequate to support a conclusion. Id. (citing Valley View Civic Association v. Zoning 

Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983)). In reviewing the ZBA’s 

determination, the trial court related, a court must not substitute its judgment for that 

of the ZBA, and it may reverse only if the ZBA’s findings are totally without support 

in the record. Id. (citing Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014); 

Republic Steel Corporation v. Workmen’s Compensation Appeal Board, 421 A.2d 1060 
9

(Pa. 1980)). The ZBA is the sole judge of the credibility of witnesses and the weight 

afforded to evidence, and, assuming the existence of substantial evidence, a reviewing 

court is bound by the ZBA’s findings that result from resolutions of credibility and 

conflicting testimony. Id. (citing Macioce v. Zoning Hearing Board of the Borough of 

Baldwin, 850 A.2d 882 (Pa. Cmwlth. 2004); Manayunk Neighborhood Council v. 

Zoning Board of Adjustment of the City of Philadelphia, 815 A.2d 652 (Pa. Cmwlth. 

2002)).

Although the trial court, like the ZBA, listed the criteria for a variance 

within the Philadelphia Zoning Code, it noted that our Supreme Court has, in its words, 

“boiled down” the criteria into three 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.” Id.

at 8 (quoting East Torresdale Civic Association v. Zoning Board of Adjustment of 

Philadelphia County, 639 A.2d 446, 447 (Pa. 1994)). After review of the record and 

the parties’ briefs and oral argument, the trial court concluded that the ZBA did not err 

in determining that the Property possessed a unique hardship; that the hardship was not 

self-created; that the variance would not adversely affect public health, safety, or 

welfare; and that the variances were the minimum necessary to afford relief.

Unnecessary hardship, the trial court noted, may be created by “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.” Id. at 9 (quoting Philadelphia Zoning Code §14-303(e)(.2)(.a)). 

Moreover, the Supreme Court has made clear that, “[i]n establishing hardship, an 

applicant for a variance is not required to show that the property at issue is valueless 
10

without the variance or that the property cannot be used for any permitted purpose.” 

Id. (quoting Marshall, 97 A.3d at 395).

The trial court agreed with the ZBA that “the physical shape, size and 

character of the . . . Property qualifies as a unique hardship” under both [s]ection 14-

303 of the Philadelphia Zoning Code and governing precedent. Id. The Property “is a 

45,664.6[-]square[-]foot vacant lot, with three (3) separate street frontages, in a 

neighborhood that has a zoning classification that allows for single-family residential 

use (RSA-5).” Id. at 10. The trial court reasoned that the “fact that the property has 

sat unused and vacant for decades would seem to indicate that the [P]roperty possesses 

a unique hardship that forestalls proper development.” Id. Evidence of the hardship 

in developing the Property with single-family residences only, the court observed, was 

presented in the form of testimony from Applicant’s architect, Rustin Ohler. Due to 

the unique size and street frontage, Ohler testified, a by-right option would result in 16 

single-family homes each 70 feet deep. Id. (citing December 12, 20183 Hearing 

Transcript (12/12/2018 Hr’g Tr.) at 23). Moreover, Applicant provided uncontroverted 

evidence that the Property “sits in an area that is a mix of industrial, commercial, multifamily and single-family uses.” Id. (citing 12/12/2018 Hr’g Tr. at 31). Finally, the trial 

court reiterated the ZBA’s observation that the Property had been vacant and blighted 

the neighborhood for decades. Id. The trial court thus found adequate support in the 

record for the ZBA’s determination that the Property suffered from a unique hardship 

in the RSA-5 district due to its “unique size, shape, configuration and surroundings.” 

Id. at 11. The hardship, moreover, was not self-created, because these features existed 

at the time that Applicant purchased the Property.

3 For the referenced portion of Ohler’s testimony, the trial court incorrectly cited the transcript 

from the February 6, 2019 hearing. The cited testimony appears in the transcript from the December 

12, 2018 hearing.
11

The trial court further found sufficient support for the ZBA’s 

determination that the variances granted were the minimum necessary to afford relief 

to Applicant. The evidence of record demonstrated that the Revised Plan reflected a 

substantial reduction in scope from the original proposal, reducing the proposed 

development to half single-family residences and half duplexes. Id. at 12. Applicant,

further, revised the plans multiple times to comply with all applicable dimensional 

requirements and to reduce the number and type of units, which allowed it to gain the 

support of PCPC. Id.

Finally, the trial court found no error in the ZBA’s determination that the 

variances would not detrimentally impact public health, safety, or welfare. Applicant 

presented ample evidence to that effect, and “worked extensively with community 

groups, even cutting into the financial lucrativeness of the venture, so as to ensure that 

the [project] would not negatively impact the surrounding community.” Id. In support, 

the trial court cited Applicant’s modification of the plans to accommodate parking 

concerns, its commission of a traffic study and pledge to improve existing traffic 

conditions, and its reduction of the building size on Parcel A and reduction of the total 

residential units by 25%. Id. at 12-13. Moreover, the trial court opined that the project 

was more contextually appropriate for the neighborhood than the existing auto repair 

and warehouse uses that were adjacent to it. As the sole arbiter of credibility, the trial 

court reasoned, it was within the ZBA’s authority to conclude that Applicant’s “good[-

]faith negotiations, [and] expert traffic, and expert safety analysis constituted 

substantial evidence that the [project] will not endanger the public health, safety, or 

general welfare.” Id. at 13.

Thus, the trial court found that the ZBA’s decision to grant the requested 

variance was supported by substantial evidence. The trial court did not address 
12

Appellants’ argument concerning unpaid property taxes, which Appellants raised in 

their Pa.R.A.P. 1925(b) statement, and have pursued on appeal to this Court.

Appellants present three issues to this Court.4 They contend (1) that 

Applicant failed to present substantial evidence of hardship; (2) that the proposed 

variance was not the minimum variance necessary to afford relief; and (3) that the 

variance should not have been granted because over $50,000 in property taxes were 

due on the Property.

Arguments

Appellants principally take issue with the ZBA’s assessment of 

hardship—that the Property is “a large consolidate[d] lot with three street frontages, 

surrounded almost exclusively by commercial and industrial uses” and that the 

Property “has remained vacant and blighted the neighborhood for decades, but 

Applicant now seeks to develop it as a mix of single-family and duplex 

condominiums.” (Appellants’ Br. at 13 (quoting COL ¶10).) Appellants assert that the 

evidence showed that over 16 residential units are adjacent to the Property, so it is not 

“surrounded almost exclusively” by commercial and industrial uses. Id. 

4 Under our standard of review:

[W]hen, as here, the trial court did not take any additional evidence, an appellate court 

is limited to determining whether the zoning board committed an abuse of discretion 

or an error of law in rendering its decision. Township of Exeter v. Zoning Hearing 

Board, 962 A.2d 653, 659 (Pa. 2009); Noah’s Ark Christian Child Care Center, Inc. 

v. Zoning Hearing Board of West Mifflin, 880 A.2d 596, 596 (Pa. 2005), per curiam

(citing Valley View, 462 A.2d at 639). We may conclude that the zoning board abused 

its discretion only if its findings are not supported by substantial evidence, which we 

have defined as “relevant evidence which a reasonable mind would accept as adequate 

to support the conclusion reached.” Exeter, 962 A.2d at 659; see also Valley View, 

462 A.2d at 640, 642 (same). An appellate court errs when it substitutes its judgment 

on the merits for that of a zoning board. East Torresdale, 639 A.2d at 448.

Marshall, 97 A.3d at 331 (citations modified).
13

Appellants quote the Philadelphia Zoning Code’s requirement that 

hardship be established by a finding that 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.” Id. at 14 (quoting Philadelphia Zoning Code §14-303(8)(e)(.2)(.b)). 

Appellants assert that Applicant failed to present evidence demonstrating that 

compliance with the RSA-5 zoning designation was impossible. Appellants 

acknowledge that the Property is located near commercial corridors and industrial uses, 

but they maintain that this does not justify the finding that building only single-family 

homes would present a hardship. Appellants contend that Applicant offered no 

substantial evidence regarding the marketability of single-family homes that would 

face the nearby commercial and industrial buildings, aside from the statements of 

Applicant’s counsel. Although Applicant asserted that an exclusively single-family 

development would present a financial hardship, Appellants argue that Applicant failed 

to provide a financial evaluation to that effect, and that Applicant did not consider the 

financial viability of obtaining dimensional variances to build smaller single-family 

homes, rather than duplexes.

Appellants further note that the hardship requirements demand a showing 

that the variance will “not alter the essential character of the neighborhood . . . nor be 

detrimental to public welfare.” Id. at 16 (quoting Philadelphia Zoning Code §14-

303(8)(e)(.2)(.c)). Appellants argue that the project will negatively impact public 

safety because it includes a driveway for off-street parking accessible from Almond 

Street, which is a narrow, two-way street with no traffic controls and fast-moving 

traffic. Appellants acknowledge that Applicant commissioned a traffic study that 

found that no problems were likely, but Appellants note that the traffic study did not 
14

consider pedestrian safety. Moreover, Appellants argue, the project would be 

detrimental to the single-family character of the neighborhood, because nowhere else 

in the neighborhood is there a block of duplex-style residences. Id. at 17.

With regard to their second issue on appeal, Appellants argue that the 

ZBA erred in concluding that the requested variance did not reflect the minimum 

necessary variance to afford Applicant relief. Appellants note that the Philadelphia 

Zoning Code contains an exception to the minimum lot size requirement that would 

allow Applicant to divide the Property into 31 single-family parcels. Id. at 18. Thus, 

Appellants argue, the minimum variance necessary to afford relief to Applicant was 

dimensional—building smaller single-family residences than otherwise would be 

permissible. This would allow Applicant to build the same number of units as 

Applicant’s proposal, but without including any duplexes.

Finally, Appellants contend that the Philadelphia Zoning Code did not 

permit the ZBA to grant a variance to Applicant in light of the substantial amount of 

unpaid property taxes due on the Property. Appellants rely upon Philadelphia Zoning 

Code §14-303(15)(a)(.9), which states: “No special exception or variance shall be 

granted unless the person who owns the property for which the application is made has 

provided documentation satisfactory to the [ZBA] verifying that all of the person’s 

taxes due on the subject property . . . are current or are subject to a payment agreement.” 

(Appellants’ Br. at 19.) Appellants acknowledge the relevant exception from that 

requirement: 

If the applicant attaches a purchase and sale agreement 

providing that the sale of the subject property . . . is 

contingent upon approval of the application . . . the [ZBA] 

may conditionally approve the application if it otherwise 

meets the criteria for approval, with a condition that the 

special exception or variance will be finally approved when 

L&I is provided with a copy of the [ZBA’s] decision and 
15

documentation verifying that all the taxes due on the subject 

property are paid in full.

Id. (quoting Philadelphia Zoning Code §14-303(15)(a)(.9)(.d)). Appellants emphasize 

that the ZBA may grant a conditional approval in such circumstances. Contrary to this 

provision, Appellants assert, the ZBA granted Applicant an unconditional approval 

despite the unpaid taxes on the Property. In any event, Appellants assert that Applicant 

failed to provide the ZBA with the correct documentation to show that it obtained the 

necessary tax clearances.

Applicant contends that there was no error in the ZBA’s decision, or in 

the trial court’s affirmance of it. As to Appellants’ challenge to the finding of hardship, 

Applicant asserts that Appellants merely dispute the ZBA’s credibility 

determinations—a matter over which the ZBA is the sole judge. (Applicant’s Br. at 

17.) That is, Applicant asserts that it presented ample evidence of the hardship faced 

by the Property, and the ZBA credited that evidence. The hardship, Applicant argues, 

is derived from the Property’s unique size, shape, and character. Id. at 18. Applicant 

contends that the Property is extremely large for a single-family zoned lot. The fact 

that it has three street frontages, as well, poses unique difficulties. Applicant notes that 

evidence of the hardship was presented in the form of Ohler’s testimony, explaining

that a by-right option would result in 16 single-family homes each 70 feet deep and 

over 20 feet wide, with a large amount of open space that would be out of context with 

the surrounding area, where residences are less than 20 feet wide and have an average 

of 25% open area. Id. at 19 (citing 12/12/2018 Hr’g Tr. at 23). Thus, Applicant 

contends, the size of the lot creates a unique situation where a subdivision into singlefamily homes would be extremely challenging. The fact that the Property has been 

vacant and blighted for decades, in Applicant’s view, provides additional evidence that 

it is not developable under its existing zoning designation. Id. at 19-20.
16

Further, Applicant notes that under Valley View, 462 A.2d at 640, the use 

of adjacent and surrounding land is relevant to the determination of hardship. 

(Applicant’s Br. at 20.) Here, Ohler’s testimony established that the Property is 

immediately adjacent to a gym, which is on the Aramingo commercial corridor, that 

the Property is immediately adjacent to industrial uses on the Boston Street side, multifamily and commercial/light industrial uses on the Hagert Street side, and industrial 

and commercial buildings catty-corner from the Property. Id. (citing 12/12/2018 Hr’g 

Tr. at 9). An auto repair and body shop is nearby on Hagert Street, and many of the 

properties zoned for single-family residences are in fact used as multi-family 

residences. Id. at 21 (citing 12/12/2018 Hr’g Tr. at 11; ZBA FOF ¶31). Contrary to 

Appellants’ suggestion, then, Applicant asserts that the surrounding area amply 

supports a project that includes multi-family residences. Stressing the substantial 

evidence standard, Applicant asserts that the ZBA’s finding of hardship was supported 

by testimony from architects, the representative of the developer, and a real estate 

appraiser, as well as evidence in the form of site plans, photos, and financial analysis. 

The ZBA found Applicant’s evidence credible, and Applicant argues that this 

determination should not be disturbed on appeal.

With regard to the minimum-necessary requirement, Applicant stresses 

the ZBA’s conclusions of law recognizing that Applicant had revised the plans to 

comply with all applicable dimensional requirements, to reduce the number of units 

such that half of the project consisted of single-family residences, and that Applicant 

had made good faith efforts to engage with the community about the project. Id. at 24-

25 (citing COL ¶¶13-14). These efforts, Applicant notes, were amply documented in 

the record. The evidence also established, through Keith Casey’s testimony, that any 

further reduction in the number of units would make the project financially unviable. 
17

Specifically, Casey testified that Applicant’s proposal could be expected to result in a 

return on investment of approximately 3.1%, and any unit count below 31 would result 

in a loss. Id. at 26 (citing 2/6/2019 Hr’g Tr.; R.R. at 672a). This, in Applicant’s view, 

demonstrates that not only did the Property present a hardship, but the variance 

allowing Applicant to build a certain number of residences as duplexes was the 

minimum variance necessary to afford relief from that hardship. Moreover, Applicant 

stresses that off-street parking is not required in the RSA-5 district, so if it was to build 

only single-family homes as Appellants suggest, it could do so without providing any 

parking spaces—magnifying the community’s parking concerns. Id. at 27-28. Thus, 

Applicant’s proposal, although necessitating a use variance, was even less disruptive 

than Appellants’ alternative suggestion.

Applicant further contends that its proposal presented no concerns with 

public health, safety, and welfare. Applicant again emphasizes the other uses in the 

neighborhood, including auto repair and warehouse space, and contends that its 

proposal was more contextually appropriate than those uses. Id. at 28. The community 

had a specific concern with parking and traffic, and Applicant contends that it amply 

addressed these issues. Applicant again stresses that single-family residences are not 

required to have off-street parking at all, but Applicant sought to provide off-street 

parking for nearly all of the proposed units. Id. Applicant also presented a traffic study 

from Dynamic Traffic, which concluded that adding a driveway for the development 

on Almond Street would provide safe and efficient access to the roadway system. Id.

at 29. Applicant notes that Appellants provided no evidence to the contrary. The ZBA, 

Applicant stresses, was entitled to credit its evidence regarding public health, safety, 

and welfare, including “considerations of traffic, light and air, public facilities, or the 

environment.” Id. at 30 (quoting COL ¶15).
18

Finally, Applicant contends that any unpaid property taxes posed no 

obstacle to its ability to obtain a variance. With regard to the Philadelphia Zoning 

Code’s property tax requirement, and the exception thereto, Applicant acknowledges 

that the exception allows that the ZBA “may conditionally approve the application if it 

otherwise meets the criteria for approval.” Id. at 31-32. Applicant argues that this does 

not indicate that the ZBA must include a conditional proviso to any approval. Id. at 32. 

Instead, Applicant suggests, “the attachment of a conditional approval is only 

applicable where the ZBA believes it is appropriate.” Id. Here, the ZBA declined to 

make its approval conditional. Applicant pledges that any taxes will be paid before 

closing.

Discussion

A. Unnecessary Hardship

As noted above, the Philadelphia Zoning Code provides that unnecessary 

hardship in the case of a use variance requires the following findings: 

(.a) That there are unique physical circumstances or 

conditions (such as irregularity, narrowness, or shallowness 

of the 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 . . . ; 

(.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 . . . 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.
19

Philadelphia Zoning Code §14-303(8)(e)(.2)(.a)-(.d).

Our Supreme Court has summarized 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.” Marshall, 97 A.3d at 

329 (emphasis in original) (quoting Hertzberg v. Zoning Board of Adjustment of the 

City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998)). However, the Supreme 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.” Id. at 330 (emphasis in original). 

Indeed, the Supreme Court has repeatedly reversed decisions of this Court for requiring 

a showing of impossibility of compliance or valuelessness to demonstrate hardship. Id.

(citing, inter alia, Hertzberg; Valley View). A showing of valuelessness, for instance, 

“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.” Id. (quoting Hertzberg, 721 

A.2d at 48). Rather, “multiple factors are to be taken into account” in assessing the 

presence of unnecessary hardship. Id.

On the other hand, although valuelessness is not a required showing, 

“[m]ere economic hardship will not of itself justify a grant of a variance.” Id. (quoting 

Wilson v. Plumstead Township Zoning Hearing Board, 936 A.2d 1061, 1069 (Pa. 

2007)). “[E]conomic factors are relevant,” the Supreme Court has held, “albeit not 

determinative, in a variance assessment.” Id. at 331. Moreover, as Applicant 

emphasizes, the Supreme Court has stated that, “[i]n evaluating hardship the use of 
20

adjacent and surrounding land is unquestionably relevant.” Valley View, 462 A.2d at 

640.

Applicant presented evidence that satisfies the criteria for a finding of 

unnecessary hardship. In assessing that evidence, we must bear in mind that our review 

is limited to a determination of whether Applicant provided substantial evidence—

relevant evidence which a reasonable mind would accept as adequate to support the 

conclusion reached—and that the ZBA was the sole judge of the credibility of that 

evidence and the weight to be afforded thereto.

With regard to the “unique physical circumstances or 

conditions . . . peculiar to the property,” Philadelphia Zoning Code §14-

303(8)(e)(.2)(.a), Applicant presented the testimony of its architect, Rustin Ohler:

Q: And with the – given the dimensions of the lot, is it not 

correct that we would basically – you would have two 

options if you were to create a by[-]right plan with no parking 

and that would be to either subdivide the lot basically down 

the middle from Almond Street away and have lots facing on 

Hagert and lots facing on Boston. They would be 

approximately, what, 70-something feet deep?

A: Correct.

Q: And they would then be approximately 20 feet wide?

A: Correct.

Q: And how many of those would we have? How many of 

those parcels would we have?

A: I don’t know.

Q: If I told you it was 16, would that sound reasonable?

A: From memory, I thought it was 17.

Q: And that would be what the minimum lot size 

requirement? 1,440?

A: Of 1,140, yes.

Q: The other option would obviously be single lots that 

would run street to street, but they would be very large lots. 

They would have a minimum lot width of 16 feet, is that 

correct?

A: Correct.
21

(12/12/2018 Hr’g Tr. at 22-23; R.R. at 31a-32a.) In his closing argument, Attorney 

Orphanides explained that these dimensional issues created an unnecessary hardship:

The lot, it may be square or a rectangle but it’s an odd size in 

its dimensions. It’s too long to run a lot street to street. And 

then if you cut it in half down the middle, then you end up 

with very wide lots, 20 feet – it’s 140-something feet from 

Almond to Boston. So you end up with 70-something feet 

by 20-something feet, very odd shaped lots compared to 

everything around it. If you look at the zoning maps which 

have the parcel map overlaid on it, it becomes a very odd 

animal for that area if we’re going to do it buy [sic] right.

(2/6/2019 Hr’g Tr.;5 R.R. at 705a-06a.)

Applicant thus provided testimony via Ohler from which the ZBA could 

conclude that “the size of [the lot] and the dimensions of it do not allow it to be broken 

up necessarily in a way that would promote also providing off street parking and still 

making it viable.” (FOF ¶35 (quoting 12/12/2018 Hr’g Tr. at 128); see also COL ¶10 

(finding sufficient hardship because “[t]he Property is a large consolidated lot with 

three street frontages”); Trial Ct. Op. at 9 (agreeing that “the physical shape, size and 

character of the . . . Property qualifies as a unique hardship”).) Moreover, to the extent 

that the size and dimensions of the lot gave rise to an unnecessary hardship, the 

hardship was not self-created, because those features existed prior to Applicant’s plan 

to acquire and develop the Property.

Applicant, moreover, presented ample, uncontradicted evidence 

concerning the use of adjacent and surrounding properties, which included commercial, 

industrial, single-family residential, and multi-family residential uses. (12/12/2018 

Hr’g Tr. at 8-12, 32-34; R.R. at 17a-21a, 41a-43a.) Such evidence of “adjacent and 

5 The transcript of the February 6, 2019 hearing is unpaginated.
22

surrounding land is unquestionably relevant” to a determination of hardship, Valley 

View, 462 A.2d at 640, and it is evidence from which the ZBA reasonably could 

conclude that Applicant’s proposed project would “not alter the essential character of 

the neighborhood or district in which the property is located.” Philadelphia Zoning 

Code §14-303(8)(e)(.2)(.c). Applicant presented evidence, through Casey’s testimony, 

that it already had substantially reduced the size and scope of the proposed project, to 

the point where it expected a return on investment of approximately 3.1%, and that 

further reduction would make the project economically unviable. (2/6/2019 Hr’g Tr.; 

R.R. at 668a-73a.) Such “economic factors are relevant, albeit not determinative” of 

hardship, Marshall, 97 A.3d at 331, and this served as evidence from which the ZBA 

could conclude that the Property could not “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.” Philadelphia Zoning 

Code §14-303(8)(e)(.2)(.b) (emphasis added). Applicant’s reduction of the size and 

scope of the project also allowed it to avoid any violation of dimensional requirements, 

and, thus, “the hardship [could not] be cured by the grant of a dimensional variance.” 

Id. §14-303(8)(e)(.2)(.d).

Applicant accordingly presented evidence that a reasonable mind could 

accept as adequate to support the conclusion—substantial evidence—that strict 

compliance with the Property’s RSA-5 zoning designation presented an unnecessary 

hardship for purposes of the Philadelphia Zoning Code. The ZBA clearly credited 

Applicant’s evidence, as was its prerogative, and Appellants have presented no basis 

upon which to disturb the ZBA’s fact-finding and credibility determinations. Although 

it is something of a lesser focus of Appellants’ argument, the same goes for the ZBA’s 

determinations that the project would not be detrimental to the public welfare. 
23

Appellants primarily express concern with traffic, however, the ZBA was entitled to 

credit Applicant’s Traffic Assessment Report which indicated no safety problems, as 

well as Ohler’s testimony that the project “opened ingress and egress and visibility at 

the Property driveway, allowing adequate space for the current traffic patterns nearby.” 

(FOF ¶20.) It is worth noting, moreover, that Appellants now suggest that Applicant 

could have proposed the erection of 31 small single-family residences on the Property, 

which would not allow for any off-street parking—a proposal that, common sense 

dictates, would seem likely to increase Appellants’ concern with traffic and congestion.

In sum, given the ample evidence presented, we find no error or abuse of 

discretion in the ZBA’s finding of unnecessary hardship, nor in the trial court’s 

affirmance thereof.

B. Minimum Necessary Variance

Many of the same factors discussed above also demonstrate that there was 

substantial evidence supporting the ZBA’s determination that the variance requested 

was the minimum necessary to afford relief. The ZBA made several conclusions of 

law concerning this factor—that “roughly half of the project will be single-family 

dwelling use as permitted in the RSA-5 zoning district, that Applicant revised plans 

multiple times to comply with all applicable dimensional requirement[s] and to reduce 

density in number and type of units,” and that Applicant “undertook extensive and 

lengthy project planning and good faith community engagement efforts to resolve 

neighbors’ current and future concerns with the proposal, despite ORCA’s ultimate 

opposition.” (COL ¶¶13-14.) 

This Court has recently discussed the application of the minimumnecessary requirement as it concerns use variances. See In re Ridge Park Civic 

Association, 240 A.3d 1029, 1033-38 (Pa. Cmwlth. 2020). This minimum-necessary 
24

requirement “applies to use variances despite the fact that, generally, ‘a use variance 

marks a qualitative rather than a quantitative departure from an existing ordinance’ and 

‘a minimum variance is [more] difficult to assess in use variance cases [than in] 

dimensional variance cases[.]’” Id. at 1033 (quoting Paganico v. Zoning Hearing 

Board of the Municipality of Penn Hills, 227 A.3d 949, 954-55 (Pa. Cmwlth. 2020)). 

That is, the “minimum variance criterion is more readily and practically applicable to 

quantifiable restrictions, such as dimensional requirements (i.e., distance or size), 

rather than those that are not quantifiable, as are most use restrictions (i.e., types of 

development).” Id. at 1033-34. As it concerns use variances, we noted that, once it is 

established that use of the property in strict conformance with the governing ordinance

is unachievable, the minimum-necessary variance requirement can be satisfied “by 

showing that of all the viable alternatives, the proposed use is the least departure from 

the terms of the ordinance, or the most similar to the uses in the surrounding 

neighborhood.” Id. Ridge Park Civic Association, moreover, further entailed a 

determination as to the number of residential units necessary to build given the cost of 

development in an area that presented technical challenges. “In other words,” we 

noted, “the inquiry required resolution of the factual issue of a reasonable profit and 

the minimum number of units necessary for it to be economically feasible to proceed.” 

Id. at 1035. 

As discussed above, the evidence produced before the ZBA thoroughly 

addressed the inability to develop the Property in strict conformance with the Zoning 

Ordinance, and Applicant provided evidence demonstrating both that its proposal 

reflected the least possible departure from the Zoning Ordinance and that the 

development would be in conformity with the surrounding neighborhood. As noted 

above, uncontradicted evidence established that the use of adjacent and surrounding 
25

properties included commercial, industrial, single-family residential, and multi-family 

residential uses. (12/12/2018 Hr’g Tr. at 8-12, 32-34; R.R. at 17a-21a, 41a-43a.) The 

fact that Applicant already had significantly reduced the size and scope of the project 

lends support to the ZBA’s determination that the variance sought was the minimum 

necessary. Casey’s above-referenced testimony regarding economic viability provides 

significant further support, inasmuch as he specifically testified that additional

reduction in the project and the number of units sought to be built would make the 

project economically unviable. (2/6/2019 Hr’g Tr.; R.R. at 668a (Casey describing the 

reduction in the scale of the project and testifying that “anything under that 

really . . . just does not financially work”).) Thus, Applicant provided evidence 

addressed to the “factual issue of a reasonable profit and the minimum number of units 

necessary for it to be economically feasible to proceed.” Ridge Park Civic Association, 

240 A.3d at 1035. This evidence, which the ZBA was free to accept, supports the 

ZBA’s determination that it provided the minimum variance necessary to afford 

Applicant relief from the hardship presented by the Property’s zoning designation. 

Accordingly, we find no error in the ZBA’s determination as to the 

minimum-necessary variance requirement, nor in the trial court’s affirmance thereof.

C. Unpaid Property Taxes

Appellants’ third issue, however, is problematic for Applicant. Applicant 

does not dispute that there were property taxes due on the Property at the time of the 

hearings; rather, the parties differ over the interpretation of the relevant provision of 

the Zoning Code. For clarity, it is worth setting forth this language in its entirety:

(.9) No special exception or variance shall be granted unless 

the person who owns the property for which the application 

is made has provided documentation satisfactory to the 

[ZBA] verifying that all of the person’s taxes due on the 

subject property pursuant to Title 19 of The Philadelphia 
26

Code are current or are subject to a payment agreement; or 

produces evidence that denial of the application will result in 

an unconstitutional taking of the property for which it is 

sought. The following exceptions shall apply:

* * *

(.d) If the applicant attaches a purchase and sale agreement 

providing that the sale of the subject property to the applicant 

is contingent upon approval of the application, together with 

an authorization for the application by the current owner of 

the subject property, the [ZBA] may conditionally approve 

the application if it otherwise meets the criteria for approval, 

with a condition that the special exception or variance will 

be finally approved when L&I is provided with a copy of the 

[ZBA’s] decision and documentation verifying that all of the 

taxes due on the subject property are paid in full.

Philadelphia Zoning Code §14-303(15)(a)(.9)(.d) (emphasis added).

The parties do not dispute that the acquisition of the Property was 

contingent upon approval of the requested variance, or that Applicant attached the 

agreement as required. The dispute, rather, is over the use of the word “may” in the 

relevant exception. Appellants argue that, if property taxes are unpaid, the ZBA’s 

approval must be conditioned upon payment of the taxes. Applicant argues that the 

word “may” means that the application of the exception is discretionary, and the ZBA 

is authorized to choose whether to provide a conditional or a final approval. 

Applicant’s interpretation of this language is unreasonable. It would be 

absurd for the Zoning Code to specifically articulate the circumstances under which 

the ZBA may approve a variance with respect to property with unpaid taxes, yet 

provide the ZBA with unbridled discretion to ignore the Zoning Code. The language 

at issue is an exception from a general rule that no variance “shall be granted” unless 

the taxes due on the property are current or subject to a payment agreement. That 

exception states that, if the requirements are met, the ZBA “may conditionally 
27

approve” the application. The exception then goes on to address the circumstances 

under which the “variance will be finally approved,” i.e., when L&I receives 

documentation that the taxes have been paid. Despite the clarity of this language, 

Applicant curiously suggests that the use of “may” in this section means that the ZBA 

simply may skip the conditional-approval step and proceed directly to a final approval, 

if it so chooses. This is simply an untenable reading of the language of the Zoning 

Code.

Appellants’ counsel made her objections based on the tax status of the 

Property amply clear at both hearings, and the parties and the ZBA thoroughly 

discussed the relevant language of the Zoning Code. (12/12/2018 Hr’g Tr. at 50-58; 

R.R. at 59a-67a; 2/6/2019 Hr’g Tr.; R.R. at 700a-02a.) Yet, the ZBA did not address 

this concern in its Findings of Fact or Conclusions of Law. Furthermore, even though 

Appellants raised the matter in their Pa.R.A.P. 1925(b) statement, which the trial court 

quoted in its Rule 1925(a) opinion, the trial court did not address the issue either.

Given that it is undisputed that there are outstanding property taxes due 

on the subject Property, that section 14-303(15)(a)(.9) of the Zoning Code plainly states 

that a variance shall not be granted in such a circumstance, and that Applicant’s 

contention regarding the exemption to that provision is untenable, it is clear that 

Appellants have advanced a meritorious challenge to the ZBA’s decision in this regard. 

Moreover, because Appellants clearly raised this issue at each step of the proceedings, 

we find that the ZBA and the trial court erred in failing to address Appellants’ 

argument. 

As such, although we have found no error in the ZBA’s determinations 

with regard to Applicant’s demonstration of unnecessary hardship and that it requested 

the minimum necessary variance to afford it relief, we must vacate the trial court’s 
28

order to the extent that Applicant failed to establish that it was entitled to a variance 

absent payment of the taxes due on the subject Property.

The order of the trial court is affirmed in part and vacated in part, and the 

matter is remanded to the trial court to remand to the ZBA to address the issue relating 

to unpaid taxes.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Frank Garcia :

: No. 134 C.D. 2020

 :

:

Appeal of: Frank Garcia and :

Kenneth Woods :

ORDER

AND NOW, this 10th day of May 2022, the December 11, 2019, order 

of the Court of Common Pleas of Philadelphia County (trial court) is AFFIRMED 

IN PART and VACATED IN PART, and the matter is REMANDED to the trial 

court to remand to the Philadelphia Zoning Board of Adjustment to address the issue 

relating to unpaid taxes in accord with this opinion.

Jurisdiction relinquished.

________________________________

PATRICIA A. McCULLOUGH, Judge