In the case of Metal Green Inc. v. City of Philadelphia, decided on December 22, a majority of the Pennsylvania Supreme Court has agreed that the abandoned and blighted status of a nonconforming building under the Abandoned and Blighted Property Conservatorship Act (Act 135) is an appropriate consideration in tandem with the minimum variance factor.
According to Horn Williamson attorney Stephen G. Pollock, who with Ryan Lockman, Esq., led the legal team that argued the case for Metal Green, this decision opens the door to those seeking to put abandoned properties back into productive re-use to present evidence on the detrimental impact of a blighted non-conforming building on the character of a neighborhood in the context of satisfying the minimum variance necessary to afford relief prong of the variance requirements.”
Horn Williamson client Metal Green, Inc. had applied for a use variance to convert a non-conforming abandoned and blighted auto garage into a new apartment complex. In separate litigation, the garage had been determined by a Court of Common Pleas to be “abandoned and blighted” under Act 135. Rather than demolish the structure entirely, Metal Green sought a variance to rehabilitate the original structure by converting it into 18 apartment units with on-site car and bicycle parking. However, the Philadelphia Zoning Board of Adjustment denied the application for a variance. It found that Metal Green failed to show that its proposed variance was the “minimum variance necessary to afford relief.”
The case then made its way through the appellate process. First, the Court of Common Pleas reversed the Zoning Board of Adjustment, finding a variance was warranted. Next, the Commonwealth Court reversed the Court of Common Pleas and reinstated the decision of the Zoning Board. In doing so, it deferred to the “implicit determinations” purportedly made by the Zoning Board.
However, the Supreme Court in Metal Green has reversed that decision and remanded the case back to the Commonwealth Court and the Zoning Board of Adjustment with instructions. The Justices found that the decision of the Zoning Board was so “substantially deficient” that it precluded an appellate court from properly reviewing the minimum variance requirement. The Supreme Court went further, stating that “the Zoning Board failed to make specific findings of fact, engage in credibility determinations, or offer sufficient rationale as to why the criteria for a use variance were not satisfied.” The Court then rejected the Commonwealth Court’s acceptance of the Zoning Board’s “implicit determinations.” These specific failures were found by the Supreme Court to be “especially notable in light of the largely uncontradicted expert testimony offered by Metal Green that seemingly spoke to the minimum variance requirement.”
A majority of Justices also found that whether a property was “abandoned and blighted” under Act 135 is a relevant factor when the Zoning Board considers whether the variance sought is the minimum one necessary to afford relief. Agreeing that blight is a relevant consideration in this context provides owners and developers of abandoned properties with ammunition to persuade zoning boards to allow them to be put back into productive re-use and is a positive step for community redevelopment.
“This is an important decision,” Pollock said. “Historically, the hardest requirement to prove was the showing of a unique hardship to the property. More and more the productive re-use of an abandoned and blighted building has been prevented by a very strict interpretation of what is the minimum variance needed to afford relief. Is it 14 or 15 units rather than 18 units? Why can’t you build fewer units?”
Pollock added. “Now, after Metal Green, where you have a blight situation, that factor has to be considered by a Zoning Board. But not only does it have to be considered, a Zoning Board also will have to state and explain what factors they considered and what factors they rejected as the basis for its decision on each variance criteria, as well as whose testimony did it believe and why it did not believe credible expert testimony. Zoning Boards will need to proverbially ‘put more meat on the bones’ of their written decisions.
Pollock said his legal team was supported by many others at Horn Williamson and that Vincent B. Mancini, Esq., of Mancini & Kodumal, served as co-counsel before the Supreme Court.