IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Ridge Park Civic :

Association :

: No. 1159 C.D. 2020

Appeal of: Ridge Park Civic : ARGUED: November 15, 2021

Association :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: February 24, 2022

Objector, Ridge Park Civic Association, appeals for the second time from an 

order of the Court of Common Pleas of Philadelphia County affirming the decision 

of the City of Philadelphia’s Zoning Board of Adjustment, which granted the 

application for use and dimensional variances filed by Applicants, David Henderson 

and Pasquale Bianculli, for a multi-family residential housing project located at 6995 

and 6997 Pechin Street in the City’s Roxborough section. The present appeal 

follows our remand in In re Appeal of Ridge Park Civic Association, 240 A.3d 1029 

(Pa. Cmwlth. 2020) (Ridge Park I). Once again, we vacate the trial court’s order 

and remand this matter to the trial court for further proceedings.

The relevant background of this matter is as follows. Applicants seek to build 

three structures, with three units in each structure, on two lots in an RSA-2 

Residential (residential single-family attached-2) zoning district where the 

Philadelphia Zoning Code (Zoning Code) permits only one principal structure per 

lot and prohibits multi-family use. Zoning Code § 14-401(4)(a). In addition to 
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dimensional variances,1they also applied for a use variance to build the desired nine 

units.

At the initial hearing before the Board, Applicants sought to establish undue 

hardship due to the property’s unique circumstances. These included an elongated 

shape with narrow frontage and geotechnical issues necessitating a costly 

constructive foundation consisting of a pillar-pier foundation system. Objector’s 

representative testified that nine units was “too much density for the space,” having 

previously suggested that four units would be appropriate. The City Planning 

Commission’s representative opined that nine units was an overuse of the property.

The Board unanimously voted to grant the application, affording great weight 

to Applicants’ undisputed evidence pertaining to the cost of dealing with the 

challenging geotechnical issues and concluding that the nine units proposed in the 

initial application satisfied the minimum variance criterion. Ridge Park I, 240 A.3d 

at 1037. In addition, it focused on the qualitative factor that the proposed use would 

remain residential, and that the appearance of the units would be similar to singlefamily homes with separate entrances.2

 Id. The trial court affirmed without taking 

additional evidence, stating that the minimum variance criterion was inapplicable to 

use variances despite the Zoning Code’s provision to the contrary. Id. at 1031.

In Ridge Park I, we vacated the trial court’s order and remanded for further 

proceedings. Noting that Applicants sought a change in the intensity of the permitted 

residential use of the property but not a change in the nature of the permitted use, we 

1 A front setback of forty-seven feet is required whereas Applicants proposed a seventeen-foot 

setback and a maximum curb cut width of twelve feet is permitted whereas Applicants proposed a 

sixteen-foot curb cut.

2

In Paganico v. Zoning Hearing Board of the Municipality of Penn Hills, 227 A.3d 949, 956 

(Pa. Cmwlth. 2020), we endorsed the board’s reliance upon the same qualitative factor in our 

determination that the board did not err in concluding that the minimum variance criterion was 

met. Ridge Park I, 240 A.3d at 1037.
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stated that once the Board concluded that a use variance was necessary to enable the 

viable economic use of the property under the applicable provision of the Zoning 

Code, it had to ascertain the extent of any variance authorized. Id. at 1035. We 

detailed the Board’s inquiry:

Unlike the cases in which a use variance entails only a 

qualitative departure from the terms of the ordinance, this 

case . . . involves a quantifiable departure. Here, such a 

determination entailed ascertaining how many units were 

necessary for Applicants to build given the cost of 

developing in an area with undisputed geotechnical 

issues. In other words, 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. (emphasis added).

In ascertaining the adequacy of what was done, we stated:

The Board’s factual findings are fully supported and 

the record makes clear that the property could not be 

viably developed in accordance with the strict terms of the 

Zoning Code. Moreover, the factors it cited are clearly 

relevant and would provide support for its conclusion that 

the variances are the minimum necessary if they were of 

the sort lacking any quantifiable measure. Here, however, 

in addition to the pertinent qualitative factors, the 

necessary departure from the measurable requirements 

must also be established. The trial court did not take 

additional evidence to amplify the record, apparently 

because of its erroneous view that the minimization 

doctrine did not apply to use variances. Given the costs 

inherent in such a project, including the purchase price 

and engineering costs related to challenging geotechnical 

issues, as well as the extraordinary costs for the necessary 

helical piers, it does not seem unlikely that nine units is the 
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minimum number needed to afford relief. Similarly, the 

testimony that the farther from the road the townhomes 

were placed, the deeper the bore for the piers would have 

to go and the more earth that would have to be displaced, 

the reduced setback may well be justified. However, we 

cannot substitute our guess as to what is likely for actual 

proof.

Id. at 1037-38 (emphasis added). Consequently, we “remand[ed] to the trial court 

to make appropriate findings as to the quantitative aspects of the minimum variances 

necessary for this to be a viable project.” Id. at 1038.

On remand, the trial court once again affirmed without taking additional 

evidence. In support, it reasoned that the existing record was complete and that there 

was substantial evidence to support the determination that the granted variances 

were the minimum necessary to afford relief. Objector’s second appeal to this Court 

followed.

On appeal, the parties’ dispute centers on the nature of our remand in 

Ridge Park I and whether the trial court responded appropriately. The remand 

directive involved ascertaining whether Applicants’ plan for exactly nine units 

satisfied the Zoning Code’s requirement that “[t]he 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 at issue[.]” Ridge Park I, 240 A.3d at 1032 [quoting Zoning Code § 14-

303(8)(e)(.1)(.b)]. Mindful that “the minimum variance criterion is more readily and 

practically applicable to quantifiable restrictions, such as dimensional requirements 

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

of development)[,]”3 we nonetheless directed on remand that a factual determination 

3 Ridge Park I, 240 A.3d at 1033-34 (citation omitted).
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be made based on actual proof that nine units is the minimum number needed to 

afford relief and that the dimensional variances are justified. Ridge Park I, 240 A.3d 

at 1037. In so doing, we reiterated that “whether an applicant satisfies the minimum 

variance criterion is fact dependent and grounded in an analysis as to whether the 

accepted evidence constitutes substantial evidence.” Id. at 1034.

As noted, the burden of submitting actual proof is on Applicants. As they

acknowledge, however, “there is no perfect testimony [in the existing record] 

regarding the proposed nine units being the least minimum variance[.]” (Applicants’ 

Br. at 21.) In that respect, the segment of the transcript that the trial court cites as 

support for its statement “that the foundation will cost the same amount, no matter 

how many units are built[,]”4is not the equivalent of evidence that the proposed nine 

units constitutes the least minimum variance. The segment in question, where 

Applicants’ counsel questions general contractor Pasquale Pellicciotti, provides:

Mr. Pollock [Applicants’ counsel]: [T]alking about 

utilities and everything, do the utilities present a challenge 

for this development, whether it be one house or whether 

it be nine homes?

Mr. Pellicciotti: The utilities also will sit on these 

helical piers. There’ll be a channel cut out and there’ll be 

like a concrete encasement, and then a concrete 

encasement will actually sit on the helical piers and the 

gas, electric, sewer will run through.

Mr. Pollock: Okay. And that is something that also 

involves a little bit of engineering. Isn’t that correct?

Mr. Pellicciotti: A lot of engineering.

Mr. Pollock: Okay. And that’s something that if 

you were to build the two homes that might be allowed as 

of right, you’d have to do this --

4

(Jan. 6, 2021 Trial Ct. Op. at 2.)
6

Mr. Pellicciotti: Right.

Mr. Pollock: -- with the helical piers and 

channeling out for utilities. Is that correct?

Mr. Pellicciotti: That’s correct.

(May 17, 2018 Hearing, Notes of Testimony “N.T.” at 46-47; Reproduced Record 

“R.R.” at 178a-79a.)

Moreover, while Pellicciotti acknowledged that the utilities would present a 

challenge for the project whether it be two or nine homes, he did not testify that the 

number of units was irrelevant to the cost. He testified that the proposed 

development for 9 units would require a total of 147 piers at $6,800 per pier, and 

that the costs just for the piers and foundations would be a little less than $1.135 

million. (Id. at 44; R.R. at 79a.) When pressed as to whether fewer piers would be 

required for fewer homes, Pellicciotti failed to answer. However, the colloquy 

between the Board’s chairman and Objector’s counsel is telling:

Mr. Klein [Objector’s counsel]: You were talking 

about the cost of these helical piers, how much they cost 

to dig and put them in. If you built fewer homes[,] you 

would need less [sic] helical piers. Right?

Chairman DiCicco: Well, I think I asked that same 

question.

Mr. Klein: Yeah. Correct. If you’re doing two 

structures instead of three it --

Chairman DiCicco: Fewer. Yeah. Obviously, 

yeah.

(Id. at 52; R.R. at 52a.) Notably, Pellicciotti did not refute the Chairman’s 

conclusion.

In sum, while the effort and cost that would have to be expended for the 

utilities might be the same for two or nine homes, that is not the equivalent of proving 
7

that the proposed nine units constitutes the least minimum variance. The trial court’s 

attempt to bootstrap Pellicciotti’s testimony in order to arrive at a determination that 

Applicants satisfied their burden is reflective of the struggle that this Court had in 

Ridge Park I, thereby leading to our determination that despite establishing the many 

challenges in developing the lots, Applicants did not conclusively prove that nine 

units was the minimum number necessary to afford relief. Absent actual and more 

precise proof on that quantitative issue, Applicants simply cannot meet their burden

with the requisite substantial evidence. Consequently, we once again remand this 

matter to the trial court to afford Applicants an opportunity to establish that nine 

units and no fewer satisfies the minimum variance criterion. If Applicants choose 

to take this opportunity, then they must present the necessary expert testimony and 

evidence “required [for] resolution of the factual issue of a reasonable profit and the 

minimum number of units necessary for it to be economically feasible [for the 

project] to proceed.” Ridge Park I, 240 A.3d at 1035.

Accordingly, we vacate and remand this matter to the trial court in 

accordance with the foregoing opinion.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Appeal of Ridge Park Civic :

Association :

: No. 1159 C.D. 2020

Appeal of: Ridge Park Civic :

Association :

O R D E R

AND NOW, this 24th day of February, 2022, the order of the Court of 

Common Pleas of Philadelphia County is hereby VACATED. This matter is 

REMANDED to the trial court for further proceedings.

Jurisdiction relinquished.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita