Appealing Zoning Board of Administration Hearing to CCP

[Kevin M.]

BP Family,

Wanted to share some specifics of my journey of applying for Single Room Occupancy (SRO) and get some advice for my pending appeal.

Application

Back in September 2019, I applied for a Use Permit for Single Room Occupancy of my existing Three Family dwelling on my RM-1 lot. This was (of course) denied and I received my Referral shortly after. I appealed the denial seeking a Special Exception (SE). The first available date to go in front of the Zoning Board of Adjustment (ZBA) was late January 2020, unless of course I wanted to pay their $700 "expediting fee". I took the January date. 

Registered Community Organization (RCO) Meeting

I reached out to the RCO coordinator and mailed out letters to all my neighbors as required. The RCO didn't get back to me for a few emails until I finally got a response. In classic Philadelphia fashion- about 80% of the addresses that I was required to use did not exist. I showed up at the RCO meeting to present the SE request. About 12 community members attended. They asked a few unrelated questions and took turns sharing some personal unrelated stories. I never received any notification of the "voting results" of the meeting. I requested these a few times from the RCO and finally about 10 days later received an email that "the project didn't get support". No official records of voting or any transparency of voting by project presented. I called to talk to the RCO chair who claimed that none of the 3 projects presented that evening received a vote of support. Still never received any written documentation of results. Well then... 

ZBA Hearing

The ZBA hearing was interesting. No community members showed up in protest of the SE. Special Exceptions (as opposed to Variances) are supposed to have a lower standard for approval, but I felt the Board did not care either way. The Board gave me little chance to explain the Special Exception and why the application meets the legal standards for approval. Instead the Chair of the Board was focused on the basement unit (unrelated to the SE) and suggested a Provision of "No residential dwelling unit in basement". Enough of his Board Members signed on and this Provision was attached to my Special Exception Approval. 

Court of Common Pleas (CCP) Appeal

I'm currently in the process of appealing the Provision attached to the approval to the CCP. It's my position that the opposition to the SE did not add any evidence to the record that could justify the ZBA's provision to the SE. Has anyone (or your attorney) ever appealed a ZBA decision to CCP? Any tips or notes from your experience? Happy to answer any questions about my journey so far and update after CCP if people are interested...

[Chris K.]

I can't say I had to deal with the Philadelphia ZBA and I'm by no means a zoning law specialist. But as a general rule, you have the burden of showing that you meet the requirements of a special exception. If you do, then the burden shifts to the objecting party. They now need to show that there's some other reason why the special exception should not apply.

There is various case law on what are valid objections. It can get rather technical. But they basically need to prove that granting the special exception will lead to a "substantial threat" to the health and safety of the community.

The tricky issue that you may need to deal with is the "record." As a general rule, the Court of Common Pleas accepts the record before the Zoning Board. On appeal, the Court will generally not allow either party to introduce more evidence. There are exceptions but that's the default rule.

Based on what you wrote, it sounds like they rushed through it. I don't know if that is favorable to you since I have no idea whether you made your case. If you did, then they probably want to introduce more evidence. You can try to contest that.

Something to note: the above is one reason why a large corporation may send a team of lawyers to argue the case at the Zoning Board level. They do so despite fully knowing that the Zoning Board hates whatever they are proposing. The lawyers have no illusion that they will change anyone's mind. Instead, they are there to build a solid record to win at the Court of Common Pleas and beyond.

Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.