IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Solow RI, Inc. and Phila RI, Inc., :

Appellants :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment; H. Kulp, Inc. and : No. 333 C.D. 2019

Blenheim Capital Group, LLC : Argued: November 12, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 9, 2019 

Solow RI, Inc. and Phila RI, Inc. (Objectors) petition this Court for 

review of the Philadelphia County Common Pleas Court’s (trial court) February 6, 

2019 order affirming the Philadelphia Zoning Board of Adjustment’s (ZBA) decision 

granting H. Kulp, Inc. and Blenheim Capital Group, LLC’s (collectively, Applicant) 

variances. There are two issues before this Court: (1) whether Objectors have 

standing; and (2) whether substantial evidence supports the ZBA’s finding of 

unnecessary hardship. 

Facts

Applicant owns an 8.6-acre lot at 3601 Island Avenue (Property). There 

is an industrial warehouse on 6 acres of the lot and the remaining 2.6 acres are 

undeveloped. On October 18, 2017, Applicant applied to the Philadelphia 

Department of Licenses and Inspections (L&I) for a zoning/use registration permit 
2

for a proposed relocation of lot lines to create two lots, i.e., Lot 1 (6 acres) and Lot 2

(2.6 acres) at the Property, and for construction of a 4-story, 148-unit hotel with an 

eat-in restaurant, 151 accessory open-air parking spaces and 4 accessory signs on Lot 

2. L&I determined that the proposed eat-in restaurant and hotel (Visitor

Accommodation) were prohibited in the Property’s I-2 Industrial zoning district, and 

that the proposed signs were not permitted because they would be located above the 

proposed structure’s second floor windowsill. On November 11, 2017, L&I issued a 

notice of refusal. Applicant appealed from the refusal to the ZBA. 

The ZBA held hearings on April 3 and May 16, 2018. At the conclusion 

of the May 16, 2018 hearing, the three ZBA members in attendance voted 

unanimously to grant the requested variances. Objectors appealed to the trial court. 

On February 6, 2019, the trial court affirmed the ZBA’s decision. Objectors appealed 

to this Court.1 On March 4, 2019, the trial court directed Objectors to file a Statement 

of Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b) (Rule 1925(b) Statement). On March 22, 2019, Objectors filed 

their Rule 1925(b) Statement. On April 25, 2019, the trial court filed its opinion.

Discussion

Objectors argue that substantial evidence does not support the ZBA’s 

finding of unnecessary hardship. Applicant rejoins that Objectors are improperly 

using zoning proceedings to foreclose commercial competition.

 

1 Where the parties present no additional evidence, “our review is limited to determining 

whether the ZBA committed an abuse of discretion or an error of law.” Soc’y Hill Civic Ass’n v. 

Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1185 n.2 (Pa. Cmwlth. 2012). 
3

Standing

At the outset, Applicant asserts that Objectors do not have standing to 

bring this appeal because their challenge is based entirely on elimination of 

commercial competition. Objectors respond that, notwithstanding the fact that they 

are business competitors, they have standing because they are abutting property 

owners. Objectors cite A.R.E. Lehigh Valley Partners v. Zoning Hearing Board of 

Upper Macungie Township, 590 A.2d 842 (Pa. Cmwlth. 1991), to support their 

position.

This Court recognizes that “[w]e cannot allow zoning appeals to be used 

as a method to deter free competition.” In re Farmland Indus., Inc., 531 A.2d 79, 84

(Pa. Cmwlth. 1987). However, presented with the same argument, the A.R.E. Court 

explained:

[The applicant] argues that [the objector] lacks standing 

because it is merely a business competitor. In support of 

[its] position, [the objector] relies upon [Farmland]. . . . In 

that case, we held that a business competitor whose 

property neither abuts nor is in the immediate vicinity of the 

property subject to the zoning board’s action lacks the 

requisite standing. As [the objector’s] property abuts the 

[applicant’s] parcel, Farmland does not support [the 

applicant’s] argument. . . . As an abutting landowner, the 

appellant here has standing.

A.R.E., 590 A.2d at 843 (emphasis added); see also Abe Oil Co. v. Zoning Hearing 

Bd. of Richmond Twp., 649 A.2d 182, 185 n.3 (Pa. Cmwlth. 1994) (“Even if standing

had been raised below, we would hold that [the objector’s] status is not only as a 

business competitor, but as a ‘person affected’ by [applicant’s] application.”).

Moreover,

this Court explained that ‘[g]enerally, in order to establish 

standing as an ‘aggrieved person,’ it must be shown that the 

person has a substantial, direct and immediate interest in the 

claim sought to be litigated[;]’ notwithstanding, ‘a property 
4

owner need not establish pecuniary or financial loss if his 

property is located in close proximity to the subject 

property because the zoning decision is presumed to 

have an effect on the property owner’s property.’

[Laughman v. Zoning Hearing Bd. of Newberry Twp., 964 

A.2d 19, 22 (Pa. Cmwlth. 2009),] (emphasis added). Thus, 

‘[t]he owner of property that is adjacent to or abuts the 

property at issue is ‘aggrieved’ and has standing to appeal a 

[zoning] board decision.’ Bradley v. Zoning Hearing Bd. of 

Borough of New Milford, 63 A.3d 488, 491 (Pa. Cmwlth. 

2013).

Plaxton v. Zoning Bd. of Adjustment, 213 A.3d 374, 379-80 (Pa. Cmwlth. 2019) 

(emphasis added; footnote omitted). Because Objectors’ status is not only as 

business competitors, but also as abutting property owners, they have standing to 

appeal. 

Unnecessary Hardship

Objectors contend that Applicant’s hardship is attendant to his person, 

not the Property. Further, Objectors assert that Applicant did not present any 

evidence that the Property has unique physical conditions but, rather, presented only 

an unsuccessful attempt to sell the entire Property. Applicant rejoins that it presented 

sufficient evidence of unnecessary hardship. In particular, Applicant claims that it 

presented evidence of a lack of marketability for industrial use and a change of 

circumstances indicating a transition away from such a use. 

Initially, Section 14-303(e)(.1) of the Philadelphia Zoning Code (Code) 

provides, in relevant part:

The [ZBA] shall grant a variance only if it finds each of the 

following criteria are satisfied:

(.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 [Section] 14-303(8)(e)(.2)
5

[of the Code] (Use Variances) [], in the case of use 

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 [] 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;

(.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.

Phila. Code § 14-303(e)(.1). Section 14-303(8)(e)(.2) of the Code specifies:

To find an unnecessary hardship in the case of a use 

variance, the [ZBA] must make all of the following 

findings:

(.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 
6

unnecessary hardship is due to such conditions and not to 

circumstances or conditions generally created by the 

provisions of this [] 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 [] 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.

Phila. Code § 14-303(e)(.2). The Pennsylvania Supreme Court has explained:

[I]n 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.’ Hertzberg v. Zoning [Bd.] of Adjustment 

of the City of Pittsburgh, . . . 721 A.2d 43, 47 ([Pa.] 1998)[.]

This 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. 

On several occasions, we have reversed the Commonwealth 

Court when it had relied on such a standard for unnecessary 

hardship in reversing the grant of a variance. Showing that 

the property at issue is ‘valueless’ unless the requested 

variance is granted ‘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.’

Hertzberg, [721 A.2d] at 48. Rather, ‘multiple factors are 

to be taken into account’ when assessing whether 

unnecessary hardship has been established. Id. 
7

Furthermore, we have never required a property owner 

seeking a variance to present direct evidence as to the value 

of the property as zoned. In addition, although evidence of 

a property owner’s inability to sell may be probative, id.,

we have concluded that it is ‘unreasonable to force a 

property owner to try to sell his property as a prerequisite to 

receiving a variance.’ Allegheny [W. Civic Council, Inc. v. 

Zoning Bd. of Adjustment of the City of Pittsburgh, 689 

A.2d 225,] 228 [(Pa. 1997)].

Although a property owner is not required to show that 

his or her property is valueless unless a variance is 

granted, ‘[m]ere economic hardship will not of itself 

justify a grant of a variance.’ Wilson v. Plumstead [Twp.] 

Zoning Hearing [Bd.], . . . 936 A.2d 1061, 1069 ([Pa.] 

2007) (citation omitted). In Valley View [Civic Association 

v. Zoning Board of Adjustment, 462 A.2d 637,] 640 [(Pa. 

1983)], we explained that ‘mere evidence that the zoned use 

is less financially rewarding than the proposed use is 

insufficient to justify a variance.’ Particularly where a 

variance is sought in order to make a change from an 

existing use consistent with the zoning code to an 

inconsistent use, ‘the mere fact that the property would 

increase in value if a variance were granted, is not of itself a 

sufficient basis’ upon which to find unnecessary hardship.

O’Neill v. Phila[.] Zoning [Bd.] of Adjustment, . . . 120 A.2d 

901, 904 ([Pa.] 1956); see also Wilson, [936 A.2d] at 1070 

(‘A variance will not be granted because a zoning 

ordinance deprives the landowner of the most lucrative 

and profitable uses.’) (internal quotation marks and 

citation omitted).

However, a zoning board’s discretion is ‘not so 

circumscribed as to require a property owner to reconstruct 

a building to a conforming use regardless of the financial 

burden that would be incident thereto. Especially is this 

true where the change sought is from one non[-]conforming 

use to another more desirable non[-]conforming use that 

will not adversely affect but better the neighborhood.’

O’Neill, [120 A.2d] at 904; see also Halberstadt v. Borough 

of Nazareth, . . . 687 A.2d 371, 373 ([Pa.] 1997) (in a case 

in which a variance was granted for a massive, legally nonconforming, one-story building erected in 1914, stating that 

‘[p]roperty owners are not required to reconstruct a building 

to a conforming use regardless of the financial burden.’). 
8

Thus, economic factors are relevant, albeit not 

determinative, in a variance assessment.

Marshall v. City of Phila., 97 A.3d 323, 329-31 (Pa. 2014) (emphasis added; citations 

omitted).

The Marshall Court reversed this Court and upheld the ZBA’s decision 

which found a hardship based on the following:

The ZBA concluded that the [applicant] had established the 

‘overwhelming support’ of the surrounding community for 

the housing project. In addition, the [applicant] had 

demonstrated the ‘unique nature’ of the property, one aspect 

of which was its legally non-conforming character. The 

building currently was vacant, in need of repair and 

providing no benefit to the community. The variances 

sought for parking, traffic, trash, and aesthetics ‘would not 

adversely impact the health, safety and welfare of the 

surrounding community,’ and in fact, the proposed use 

would be less burdensome on the community than the 

previous use as a school or other uses permitted as of right. 

The conditions that formed the basis for the requested 

variances were not the result of the [applicant’s] actions, 

but rather were unique to the property and related to its 

legally non-conforming character. 

Id. at 327-28 (emphasis added; record citations omitted).

Similarly, in Liberties Lofts LLC v. Zoning Board of Adjustment, 182 

A.3d 513 (Pa. Cmwlth. 2018), this Court affirmed a trial court’s order upholding a 

ZBA’s hardship determination. The Liberties Court explained:

[T]he ZBA’s finding of unnecessary hardship is based on its 

supported determinations that the subject property, which 

is currently improved with a mostly vacant, dilapidated 

warehouse, is valueless as zoned or could only be 

converted to a permitted use at a prohibitive expense.

This constitutes unnecessary hardship. Marshall. 

Additionally, the ZBA relied on the fact that the area 

surrounding the subject property ha[d] transitioned from 

industrial to residential use. No error is apparent in that 

regard.
9

Liberties, 182 A.3d at 534-35 (emphasis added; record citations omitted).

Here, the ZBA concluded:

The Property is surrounded by similar and/or compatible 

uses (including six other hotels) and efforts to market it 

failed to produce any offers from parties interested in 

developing it for a permitted industrial use.

The [ZBA] concludes that these circumstances are 

sufficient to establish the hardship required for grant of a 

variance.

ZBA Dec. at 7 ¶¶ 10-11. 

This Court is mindful that “[i]t is the function of the [ZBA] to determine 

whether the evidence satisfies the criteria for granting a variance[,]” and that “[a]n 

appellate court errs when it substitutes its judgment on the merits for that of [the 

ZBA].” Marshall, 97 A.3d at 331. However, “[t]he burden on an applicant seeking a 

variance is a heavy one, and the reasons for granting the variance must be substantial, 

serious and compelling.” Liberties, 182 A.3d at 530. Neither ZBA in Marshall, nor 

in Liberties, based its hardship conclusion solely on the combination of the property’s 

lack of marketability and the change in the surrounding neighborhood. In one 

instance, “[t]he building [] was vacant, in need of repair and provid[ed] no benefit to 

the community[,]” Marshall, 97 A.3d at 327, and the other, the subject property was 

“a mostly vacant, dilapidated warehouse, [was] valueless as zoned or could only be 

converted to a permitted use at a prohibitive expense[.]” Liberties, 182 A.3d at 534.

In the instant case, Lot 1 contains a viable 84,000-square-foot industrial 

building currently housing a car rental operation, as well as one long-term tenant and

one short-term tenant. See Reproduced Record (R.R.) at 24a. The fact that Applicant 

tried unsuccessfully to sell the entire 8.6-acre Property to no avail, see R.R. at 24a25a, does not establish an unnecessary hardship. Notwithstanding that subdividing

the Property into two lots and constructing the Visitor Accommodation would be 
10

lucrative to Applicant, “a variance will not be granted because a zoning ordinance 

deprives the landowner of the most lucrative and profitable uses.” Marshall, 97 

A.3d at 330 (quoting Wilson, 936 A.2d at 1070). “Although a property owner is not 

required to show that his or her property is valueless unless a variance is granted, 

‘[m]ere economic hardship will not of itself justify a grant of a variance.’” Marshall, 

97 A.3d at 330 (quoting Wilson, 936 A.2d at 1069). Because “economic factors are 

relevant, albeit not determinative, in a variance assessment[,]” this Court is 

constrained to hold that substantial evidence does not support the ZBA’s conclusion 

that Applicant met its burden of proving an unnecessary hardship. Marshall, 97 A.3d 

at 331. 

Conclusion

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

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Solow RI, Inc. and Phila RI, Inc., :

Appellants :

:

v. :

:

Philadelphia Zoning Board of :

Adjustment; H. Kulp, Inc. and : No. 333 C.D. 2019

Blenheim Capital Group, LLC :

O R D E R

AND NOW, this 9

th day of December, 2019, the Philadelphia County 

Common Pleas Court’s February 6, 2019 order is reversed.

___________________________

ANNE E. COVEY, Judge