On July 21, the Pennsylvania Supreme Court rendered a decision in Marshall v. City of Philadelphia, 2014 Pa. LEXIS 1785 (Pa. 2014), that clarified the unnecessary hardship standard applicable to the granting of a use variance. Most notably, the court ruled that a use variance applicant is not required to prove that an existing building is “functionally obsolete” for any use permitted on the property in order to establish the requisite unnecessary hardship.
In Marshall, upon receipt of a nearly $10 million grant from the U.S. Department of Housing and Urban Development, the Archdiocese of Philadelphia sought a zoning/use registration permit from the Philadelphia Department of Licenses and Inspections to covert an old, vacant, nonconforming school building located in a residential zoning district into a 63-unit one-bedroom apartment complex for low-income senior citizens. Concluding that the proposed apartment complex failed to comply with several provisions of the Philadelphia Zoning Code, the department denied the archdiocese’s permit request. Specifically, the department found that, in addition to failing to meet certain parking, landscaping and setback requirements under the Zoning Code, the proposed housing project was not a permitted use in the subject residential zoning district.
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