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March 19, 2026 Get Citation Alerts Download PDF Add Note

In re: Appeal of: A. Schell & Olde Richmond Civic Assoc. ~ From a Decision of: ZBA ~ Appeal of: A. Schell & Olde Richmond Civic Assoc.

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 1249 C.D. 2023

• Judges: Fizzano Cannon

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (45.4K)

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Lead Opinion

                        by Fizzano Cannon

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of: Alyssa Schell and :
Olde Richmond Civic Association :
:
From a Decision of: Zoning Board :
of Adjustment :
:
Appeal of: Alyssa Schell and : No. 1249 C.D. 2023
Olde Richmond Civic Association : Argued: February 3, 2026

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STELLA M. TSAI, Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: March 19, 2026

Alyssa Schell (Schell) and Olde Richmond Civic Association
(Association) (collectively, Objectors) appeal from the October 4, 2023 order of the
Court of Common Pleas of Philadelphia County (Trial Court). The Trial Court’s
order affirmed the decision of the Zoning Board of Adjustment of the City of
Philadelphia (Board)1 granting use and dimensional variances to Olde Richmond
Ventures, LLC, which is owned by Carlos Masip (collectively, Applicant). In
addition to requesting consolidation of three contiguous lots on Tulip Street in
Philadelphia into one lot, Applicant requested several variances including a use
variance to construct a multi-family triplex dwelling on the consolidated lot and
related dimensional variances. For the reasons that follow, we reverse the Trial
Court’s order.

1
Because the Board failed to file a brief as directed by order dated September 17, 2024,
this Court precluded the Board from filing a brief or participating in oral argument of this matter.
See Commonwealth Court Order dated September 17, 2024.
I. Background and Procedural Posture
The property at issue consists of three zoning lots2 at 2409R, 2411R,
and 2413-15R Tulip Street in Philadelphia (collectively, the Property), all located
within Philadelphia’s RSA-5 zoning district (District), which is zoned for single-
family use. See Trial Court 1925(a) Opinion filed March 4, 2024 (Trial Court
Opinion) at 2, Reproduced Record (R.R.) at 241; Findings of Fact and Conclusions
of Law of the Philadelphia Zoning Board of Adjustment (Board Decision) at 1, R.R.
at 126. Lots 2409R Tulip Street and 2411R Tulip Street measure 311 square feet
and 561 square feet,3 respectively,, and are landlocked, meaning that they are located
behind other lots and are not directly accessible from any street. See Trial Court
Opinion at 2, R.R. at 241. Lot 2413-15R measures 1,143 square feet and has 36 feet
of street frontage.4 See Trial Court Opinion at 2, R.R. at 241. Applicant owns all
three lots. See Board Decision at 3, R.R. at 128.
Applicant filed an application with the Philadelphia Department of
Licenses and Inspections (L&I) seeking, first, to consolidate the three lots into one
lot and, second, to erect thereon a triplex with three dwelling units for multi-family
household living, which structure would in turn require a use variance and three
dimensional variances (Application). See Board Decision at 1, R.R. at 126; see also

2
Although designated as three zoning lots, the Property actually consists of four tax
parcels. See Findings of Fact and Conclusions of Law of the Philadelphia Zoning Board of
Adjustment (Board Decision) at 1, Reproduced Record (R.R.) at 126.

3
The minimum lot area in the District is 960 square feet. Zoning Code, Table 14-701-1.

4
Despite its Tulip Street address, Lot 2413-15R’s street frontage is on Boston Street, which
intersects perpendicularly with Tulip Street. See Trial Court Opinion at 2, R.R. at 241.

2
Notice of Refusal dated June 13, 2022 (Notice of Refusal),5 R.R. at 8. L&I denied
the Application, explaining that the proposed multi-family triplex use is prohibited
in the District, that the proposed structure to be built did not comply with the
District’s dimensional requirements for rear yard depth and side yard width, and
further that a proposed fence on the Property did not comply with District
requirements. See Trial Court Opinion at 2-3, R.R. at 241-42; Board Decision at 1,
R.R. at 126; see also Notice of Refusal, R.R. at 8.6

5
We observe that the Application does not appear in either the Reproduced Record or the
Certified Record of this matter. However, the Notice of Refusal indicates that the Application
requested the following:

Relocation of lot lines to create one (1) lot (Lot-D), from three (3)
deeded lots with four (4) OPA accounts (size and location shown on
the plan)[.]

New construction of a semi-detached building with a roof deck and
a roof access structure (size and location as shown on
plans/[A]pplication) for use as a multi-family household living (3
units)[.]

Notice of Refusal, R.R. at 8 (all capitals omitted).

6
The Notice of Refusal expressly included “one (1) use refusal[,] three (3) zoning refusals.”
Notice of Refusal, R.R. at 8 (all capitals omitted). Thus, L&I refused the use variance and the
three requested dimensional variances required by the Application’s second request. The
consolidation of the lots was not before the Board and, accordingly, is not before us on
appeal. Under the Philadelphia Zoning Code, a reverse subdivision, also referred to as a lot
consolidation or lot line adjustment, requires approval from the Philadelphia City Planning
Commission before L&I can issue any zoning permits related to the adjustment. See Philadelphia,
Pa. Code § 14-304(6)(b)(.1) (L&I shall not issue any zoning permits for a lot adjustment unless
the lot adjustment has been first reviewed and approved by the Commission) (current through
2025).

3
Applicant timely appealed the Notice of Refusal to the Board, which
conducted a hearing on the matter.7 See Trial Court Opinion at 3, R.R. at 242; Board
Decision at 2, R.R. at 127; see also R.R. at 85-124. At the conclusion of the hearing,
the Board unanimously voted to grant the variances requested in the Application.
See Trial Court Opinion at 4-5, R.R. at 243-44; Board Decision at 2 & 11, R.R. at
127 & 136; see also R.R. at 120.
Objectors appealed to the Trial Court,8 which affirmed the Board
Decision by order dated October 4, 2023 (Trial Court Order). See Trial Court Order,
R.R. at 223-24; Trial Court Opinion at 5, R.R. at 244. Objectors then timely
appealed to this Court.
II. Issues
Objectors raise two arguments on appeal.9 First, Objectors claim that
the Board erred by granting the Application where a witness testified that a single-
family home could be built on the Property without variances. See Objectors’ Br. at
4 & 13-18. Objectors also argue that the Board erred by granting the Application
because Applicant put forth no evidence that the variances sought by the Application
represented the minimum necessary to alleviate any alleged hardship or that granting
the requested variances would not adversely impact the surrounding neighborhood.

7
Technical difficulties experienced by one of Applicant’s witnesses caused the hearing to
be conducted over two days: December 7 & 22, 2022. See Trial Court Opinion at 3, R.R. at 242;
Board Decision at 2 & 6, R.R. at 127 & 131; see also R.R. at 85-124.

8
As this Court has explained, “there is no requirement that an aggrieved party/person have
appeared before the [Board] as a prerequisite to the right to appeal.” In re City of Phila., 245 A.3d
346, 353 (Pa. Cmwlth. 2020).

9
Where a trial court has taken no additional evidence, this Court’s review is limited to
determining whether a zoning board’s findings are supported by substantial evidence or whether
the zoning board made an error of law in rendering its decision. See Twp. of Exeter v. Zoning
Hearing Bd., 962 A.2d 653, 659 (Pa. 2009).

4
See Objectors’ Br. at 4 & 18-21. Applicant, in turn, challenges Objectors’ standing
to pursue their appeal from the Board’s decision. We address the standing issue first,
and then the question of the minimum variance necessary for relief, which we
conclude is dispositive of this appeal.
III. Discussion
A. Standing
Applicant challenges the standing of Objectors to pursue their appeal
of the Board’s decision. We conclude that both Schell and the Association have
standing.
Applicant expressly admits that Schell “potentially ha[d] a substantial,
direct, and immediate interest due to proximity . . . .” Applicant’s Br. at 29.
Applicant contends, however, that despite the proximity of her residence to the
Property, Schell was required to allege particularized harm to establish standing and,
further, that the proposed variances would not result in particularized harm because
the proposed project would not produce any increase in density over a permitted use.
Id. We disagree. This Court has previously explained that “proximity of the
properties may be sufficient to establish a perceivable adverse impact” for standing
purposes. Soc’y Created to Reduce Urban Blight v. Zoning Hearing Bd. of
Adjustment, 951 A.2d 398, 404 (Pa. Cmwlth. 2008), aff’d sub nom. Spahn v. Zoning
Bd. of Adjustment, 977 A.2d 1132 (Pa. 2009); accord id. (explaining further that an
assertion of a particular harm is needed for standing by an objector without property
in the immediate vicinity). Here, Schell lives within 500 feet of the Property. R.R.
at 81. We conclude that is sufficient proximity to the Property to confer standing.
See Appeal of Hoover, 608 A.2d 607, 611 (Pa. Cmwlth. 1992) (concluding that

5
objectors residing within 150-200 yards of a contested use had standing). Based on
that proximity, Schell did not need to aver additional particularized harm.
Regarding the Association, organizational standing exists for a group
committed to preservation in a specific neighborhood of the City of Philadelphia.
See In re Friends of Marconi Plaza, 287 A.3d 965, 977 (Pa. Cmwlth. 2022).
Applicant does not challenge the Association’s status as such a group. Rather,
Applicant contends that in order to have standing to appeal, the Association had to
have appeared or otherwise objected before the Board. See generally Applicant’s
Br. at 23-29. We discern no merit in this argument. Counsel for Applicant
confirmed to the Board that he provided notice to and met with the Association in
advance of the Board hearing and that nine members of the Association attended the
meeting, eight of whom opposed the Application. R.R. at 87, 89 & 95. The
Association also sent the Board a letter of opposition, see id. at 90, and Applicant
does not point to any provision in the City of Philadelphia’s home rule charter or
other law that requires any specific form of writing needed to constitute an
appearance by an association. Cf. Newtown Heights Civic Ass’n v. Zoning Hearing
Bd., 454 A.2d 1199, 1200 (Pa. Cmwlth. 1983) (applying the Pennsylvania
Municipalities Planning Code10 and explaining that “to attain party status, civic or
community organizations must enter or make a recognized appearance in some
manner, the entry of an appearance in writing on forms provided by the board being
one, but not the exclusive, method for securing that recognition”). In addition, one
of the attendees from the Association meeting, Michael Lang, testified under oath at
the Board hearing. R.R. at 97-99. Lang expressly referenced his attendance at the
Association meeting and the opposition of eight of the nine attendees as he

10
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

6
challenged the sufficiency of Applicant’s showing of entitlement to variance relief.
Id. For these reasons, we conclude that the Association adequately appeared or
objected before the Board.
We also reject Applicant’s alternative suggestion that the Association
could not bootstrap its way into standing through Schell because she lacked standing
and therefore could not confer organizational standing on the Association.
Applicant’s Br. at 29-30. See Lincoln Party v. Gen. Assembly, 682 A.2d 1326, 1330
(Pa. Cmwlth. 1996) (explaining that “[s]tanding may be conferred upon an
association solely as the representative of its members” where there is a threatened
injury to the interest of at least one member); Accord Del. Valley Apartment House
Owner’s Ass’n v. Dep’t of Revenue, 389 A.2d 234, 236 (Pa. Cmwlth. 1978) (holding
that an association had standing in a declaratory judgment action, based on the
standing of its members). As we concluded above that Schell had standing, we
likewise conclude that she thereby conferred organizational standing on the
Association.
Because Schell had standing as a party, and because both Schell’s party
status and Lang’s appearance and testimony at the Board hearing conferred standing
on the Association to pursue its appeal, we reject Applicant’s standing challenge.
Accordingly, we address the merits of Objectors’ appeal.
B. Minimum Variance Necessary for Relief
“An application for a variance seeks permission to do something which
is prohibited by [a] zoning ordinance. In essence, a variance constitutes an
exception, or an overriding of legislative judgment concerning the will of the citizens
of the community regarding land use.” Metal Green Inc. v. City of Phila., 266 A.3d
495, 506 (Pa. 2021). As such, “[a] variance is an extraordinary exception and should

7
be granted sparingly[.]” Heisterkamp v. Zoning Hearing Bd. of City of Lancaster,
383 A.2d 1311, 1314 (Pa. Cmwlth. 1978). “The burden on an applicant seeking a
variance is a heavy one, and the reasons for granting the variance must be substantial,
serious and compelling.” Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144,
149 (Pa. Cmwlth. 2011); see also Fairview Twp. v. Fairview Twp. Zoning Hearing
Bd., 233 A.3d 958, 963 (Pa. Cmwlth. 2020) (noting that the burden on the applicant
for a use variance is heavy).
Because a use variance involves a “proposal to use the property in a
manner that is wholly outside the zoning regulation,” our courts have required strict
proof to obtain a use variance, without employing the somewhat relaxed standards
that have been permitted for establishing the hardship element for dimensional
variances. Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43, 47 (Pa. 1998).
Normally, a use variance applicant must prove that there is a unique hardship
affecting the property; that granting the requested variance will not result in an
adverse effect on the public health, safety, or general welfare; and that the requested
variance is the minimum variance that will afford relief with the least modification
possible. See Marshall v. City of Phila., 97 A.3d 323, 329 (Pa. 2014); see also Metal
Green, 266 A.3d at 508. Specifically, the Philadelphia Zoning Code (Zoning Code)
requires a variance applicant to establish, inter alia, 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 in issue . . . .” Zoning Code Section 14-303(8)(b) (emphasis
added).
Objectors argue that the Board erred by granting the Application
because, inter alia, Applicant put forth no evidence that the variances sought

8
represented the minimum necessary to alleviate any alleged hardship. We agree with
Objectors that Applicant is not entitled to variance relief.
At the hearing, Applicant’s Counsel presented argument to the Board
which, when called to testify, Mr. Masip adopted as his testimony. See Board
Decision at 6, R.R. at 131; see also R.R. at 91. While conceding that the Property’s
three lots are zoned for single-family dwellings, Applicant’s Counsel explained to
the Board that all three of the lots had been vacant for the past 30 years. See Trial
Court Opinion at 3, R.R. at 242; Board Decision at 3, R.R. at 128. Applicant’s
Counsel explained that Mr. Masip, who lives in the neighborhood in addition to
owning the lots, would like to be able to use the Property instead of having the lots
continue to lie fallow, and had, to that end, previously and unsuccessfully applied to
the Board seeking to build two three-story structures on the Property. See Trial Court
Opinion at 3-4, R.R. at 242-43; Board Decision at 3-4, R.R. at 128-29. Applicant’s
Counsel also explained that a previous application seeking to construct two three-
story buildings to accommodate four families on the Property had been denied. See
R.R. at 87-88.
While acknowledging that a single-family home could be built on the
Property, Applicant’s Counsel asserted that such a by-right home could contain
approximately 7,500 square feet, which would be about five to six times bigger than
nearby properties, effectively creating a white elephant by dwarfing everything in
the neighborhood. See R.R. at 101 & 113. Applicant’s Counsel explained that the
instant Application instead proposed a three-family dwelling with a reduced height
to comport with the character of the neighborhood. See Trial Court Opinion at 3,
R.R. at 242; Board Decision at 3-4, R.R. at 128-29; see also R.R. at 101, 113 & 116-
19.

9
Applicant’s Counsel also argued that building separate zoning-
compliant structures on the three individual Property lots would require multiple
dimensional variances and easements per lot, which requirements could be obviated
or mitigated by granting the variances sought by the Application. See Trial Court
Opinion at 3, R.R. at 242; Board Decision at 4-5, R.R. at 129-30. As such,
Applicant’s Counsel contended that the variances requested by the Application were
the minimum necessary to overcome the Property’s hardship. See Board Decision
at 5, R.R. at 130.
Applicant also presented the testimony of Jeremy Avellino, its project
architect. See Trial Court Opinion at 4, R.R. at 243; Board Decision at 8-11, R.R. at
133-36. Mr. Avellino explained that the consolidation of the three lots would create
a 2,012-square-foot lot, which he posited would allow for the construction of a
7,500-square-foot single-family home (presumably having multiple floors). See
R.R. at 112-13. Mr. Avellino testified that, by building the proposed two separate
but connected buildings on the Property, Applicant could avoid building a very large,
7,500 square foot house that would be out of character with the rest of the
neighborhood. See Trial Court Opinion at 4, R.R. at 243; Board Decision at 9, R.R.
at 134; R.R. at 112-13. Mr. Avellino also asserted that each of the three lots to be
consolidated into the Property could have a single-family home built on it by right,
although the existing lots are individually too small to build single-family homes
without dimensional variances to do so. See Board Decision at 10, R.R. at 135. Mr.
Avellino further stated that, under the Zoning Code, splitting the central lot down
the middle and creating two lots would not create lots large enough to build single-
family homes on either one without dimensional variances. See Board Decision at
10, R.R. at 135.

10
The City Planning Commission provided the Board with its
recommendation through the testimony of David Fecteau. See Trial Court Opinion
at 4, R.R. at 243; Board Decision at 8, R.R. at 133. Mr. Fecteau agreed with
Applicant that the shape of the Property creates a hardship requiring dimensional
variances but argued that Applicant had not provided evidence that the size and
shape of the Property would prevent the construction of a single-family home. See
Trial Court Opinion at 4, R.R. at 243; Board Decision at 8, R.R. at 133. Accordingly,
Mr. Fecteau explained, the City Planning Commission recommended that the Board
grant the requested dimensional variances but deny the requested use variance to
place three dwelling units on the Property. See Trial Court Opinion at 4, R.R. at
243; Board Decision at 8, R.R. at 133.
Based on the evidence, the Board found that Applicant met the Zoning
Code’s criteria for the requested variances. See Board Decision at 13-15, R.R. at
138-40. Specifically, the Board found:

1. The [P]roperty consists of three lots, two of which are
   landlocked, lacking any street frontage. The landlocked
   lots are significantly undersized at 311 and 561 square
   feet, respectively. The one lot with frontage faces Boston
   Street despite its Tulip Street address and has a width of
   36 feet. The homes on Boston Street across from the
   [P]roperty are two stories in height.

2. [T]he erection of one single-family home on each lot
   could not be accomplished without significant variances
   based on the current condition of the lots. Alternatively, a
   by-right, single-family home on the consolidated lots
   would be large and out of character with the rest of the

11
neighborhood which consists of modest attached
homes.[11]

1. Likewise, the Board determined that the size and
   shape of the lots created a hardship necessitating the
   requested dimensional variances. As previously stated,
   the Applicant showed that the lots cannot be developed
   individually in compliance with the [District] dimensional
   standards due to this hardship. The uniqueness of the lots
   also prevents the by-right development of two[ ]single
   family homes if the lot lines were rearranged to create two
   parcels with frontage on Boston Street. In addition, the
   Board also noted that the hardship due to the shape and
   size of the lots was acknowledged by the Planning
   Commission, the [Association], and Mr. Lang, all of
   whom were in opposition to at least the multi-family use
   aspect of the project.

2. Moreover, the Board found that the requested use
   and dimensional variances represented the least
   minimum [sic] to afford relief based on the identified
   hardships. The Applicant did not requesting [sic] any
   density beyond what would be permitted if the three lots
   were developed individually. In addition, the Applicant
   demonstrated that the requested dimensional variances
   were less than what would be required to build a single-
   family house on each lot. The Board also found that the
   requested side yard variance was de minimus [sic], as only
   five feet were required and three and one-half feet were
   proposed.

3. Concerning the effect of the requested variances on
   the public health, safety, or general welfare, the Board was
   presented with only general testimony and no evidence
   regarding the potential negative impact of the proposed

11
We note that Applicant’s hypothetical 7,500-square-foot house on a 2,012-square-foot
lot (less the mandated setbacks) would require more than the two stories the Board found were
common in the neighborhood. We further note that Applicant offered no evidence that a house on
the lot would have to cover the lot or contain 7,500 square feet.

12
project on the community. As explained in the
[Association’s] letter and Mr. Lang’s testimony, the
community was apparently opposed to the density of a
triplex even though it was commensurate with the
development of three single-family homes. The Applicant
averred that the neighbors wanted the lot to remain
undeveloped. However, that contention was not supported
by the [Association’s] letter or the testimony of Mr. Lang.
Despite this contradiction in the record, the Board was
[not] provided with any explanation by the community, via
letter, petition, or testimony, as to any adverse impacts the
proposed development would have if the requested
variances were granted.

1. In contrast, the Applicant demonstrated that [it] had
   made a concerted effort to develop the project in a way
   that would have a minimal impact on the neighborhood.
   For example, the front of the building was only two stories
   in height to match the other homes on Boston Street.
   Terraces instead of roof decks were utilized for additional
   outdoor space that would not invade the privacy of the
   neighbors. Lastly, two of the three side yards complied
   with [District] standards (and the one that did not was de
   minimus [sic]), thereby providing a buffer between the
   [P]roperty and the adjacent lots.

2. Therefore, the Board concludes that the Applicant has
   established that the criteria under the Zoning Code were
   satisfied and that the grant of the requested use and
   dimensional variances was thus appropriate. The Board
   finds the Applicant has met [its] burdens of production and
   persuasion through credible testimony and evidence,
   which warrants the requested relief.

Board Decision at 13-15, R.R. at 138-40 (emphasis added) (internal record citations
and footnote omitted).
On appeal, the Trial Court affirmed, noting that its role was not to
substitute its judgment for that of the Board and that it could reverse only where the

13
Board’s findings were without substantial evidence in the record. See Trial Court
Order at 1 n.1, R.R. at 223. The Trial Court explained that, here,

[t]he [Board] engaged in extensive fact-finding, and heard
from witnesses on both sides of the issues presented. The
[Board] concluded that (i) the unique shape, size, and
location of the three parcels constituted an unnecessary
hardship; (ii) the use and dimensional variances sought are
minimal in that [Applicant] is not seeking increased
density, and the side yard variance is de minimis[;] and
(iii) any “by-right” development – the development
proposed by [Objectors] – would itself require large
homes that would be out of character with the
neighborhood.

In considering the applicable criteria, the [Board] was free
to make credibility determinations and weigh the
testimony and evidence, which this Court may not disturb
on appeal. Based on this Court’s review of the record, the
[Board] considered the competing evidence and
determined that [Applicant] satisfied the requisite criteria.
[Objectors’] fact-based arguments regarding alleged error
committed by the [Board], which generally amount to
disagreement with the [Board’s] conclusions based on
facts adduced at the hearing, have no merit. This Court
concludes that there is substantial evidence in the record
supporting the [Board’s] conclusion.

Trial Court Order at 1-2 n.1. The Trial Court effectively repeated these
determinations and conclusions in its Pennsylvania Rule of Appellate Procedure
1925(a) Opinion, stating:

Contrary to [Objectors’] argument, the [Board] engaged in
extensive fact-finding. The [Board] concluded that (i) the
unique shape, size, and location of the three parcels
constituted an unnecessary hardship; (ii) the use and
dimensional variances sought are minimal in that the

14
Applicant is not seeking increased density; (iii) the side
yard variance is de minimis; one single-family home
on each lot (if not consolidated) could not be accomplished
without significant variances based on the current
condition of the lots and [sic] any “by-right”
development on the consolidated lot – the development
proposed by [Objectors] – would itself require large
homes that would be out of character with the
neighborhood.

In this sense, the [Board] balanced the equities. As the
[P]roperty is currently situated, it is unusable. Two of the
rear lots are landlocked without street access, and the third
lot has street access facing Boston Street. Development of
the lots in any form would require a variance. The
Objectors proposed large, single-family home(s) that
would be out of character with the neighborhood. The
[Board] weighed the credibility of the testimony and
evidence and concluded that Applicant’s triplex proposal
satisfied the minimal variance criteria for both
dimensional and use variances. Based on this Court’s
review of the record, (i) the [Board] carefully considered
the competing evidence;; the [Board’s] conclusion is
supported by substantial evidence; and (iii) the [Board] did
not commit an error of law.

Trial Court Opinion at 7-8, R.R. at 246-47 (emphasis added).
We do not agree with the Board or the Trial Court’s determinations or
conclusions that Applicant’s evidence satisfied its burden to demonstrate that the
requested variances would be the minimum variances required for zoning relief.
Applicant’s Counsel conceded in his presentation that, once the three smaller lots
are consolidated, the consolidated, single Property could be used for a permitted

15
purpose, i.e., a single-family home, without the need for variances.12 Simply put,
the evidence presented by Applicant illustrates that, despite the fact that the
consolidated Property can be used for a permitted use, Applicant wants to use the
Property for a different use, i.e., a multi-family dwelling, which is not a permitted
use in the District. Appellant’s preference for that use does not render the requested
variances the minimum necessary for relief. Thus, the Board improperly granted a
use variance in this matter.
Applicant’s Counsel’s suggestion that Applicant could conceivably
construct on the Property, as a permitted use, a 7,500-square-foot single-family
home that would dwarf other homes and be out of character with the rest of the
neighborhood is of no moment. The character of the neighborhood is a consideration
for variances from by-right uses, not for permitted, by-right uses, which, by
definition, do not require variances. See Hoekstra v. Amity Twp. Zoning Hearing
Bd. (Pa. Cmwlth. No. 723 C.D. 2023, filed March 18, 2025),13 slip op. at 30 (noting
that the alteration of a neighborhood’s essential character was a consideration for
variances for encroachments into overlay districts but not for a permitted use in the
primary zoning district); accord generally Duffy v. Zoning Hearing Bd. of Upper
Chichester Twp., 61 A.3d 1069 (Pa. Cmwlth. 2013) (observing that a by-right use
did not require compliance with additional approvals, including impact on the
neighborhood, that would be applicable to conditional uses). Therefore, provided it
complied with the District’s setback and other dimensional requirements,

12
We observe that, despite Applicant’s repeated suggestion at oral argument, the Zoning
Code contains no provision that entitles a property owner to aggregate the density allowances of
multiple lots once combined into a single lot, as Applicant requested in this case.

13
This unreported opinion is cited as persuasive authority under Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414 (a).

16
Applicant’s Counsel’s theoretical, as-of-right 7,500-square-foot single-family home
would still be a permitted structure/use within the District despite being arguably out
of character with the neighborhood’s other homes. Additionally, we observe that
even assuming that such a large, single-family structure may be permitted on the
Property, nothing would in any way obligate or require Applicant to build a 7,500-
square-foot home on a 2,012-square-foot lot.
Regarding the dimensional variances requested in the Application
(those beyond the relocation of the lot lines), we observe that these dimensional
variances refer to the planned construction of a multi-family dwelling and thus
require, as a prerequisite, the grant of the use variance sought by the Application.
Therefore, as a result of our determination that Applicant failed to proffer sufficient
evidence to permit the Board to grant the requested use variance, we need not
examine the requested dimensional variances at this time.
IV. Conclusion
In light of the foregoing, we conclude that Objectors have standing to
pursue their objections. However, we find the Board erred by determining that
Applicant satisfied its burden of demonstrating that the requested use variance was
the minimum variance required to provide relief. Further, because the dimensional
variances requested in the Application require as a prerequisite the grant of the use
variance requested therein, the Board also erred by granting the requested
dimensional variances. Accordingly, we reverse the Trial Court Order affirming the
Board Decision.

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CHRISTINE FIZZANO CANNON, Judge

17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of: Alyssa Schell and :
Olde Richmond Civic Association :
:
From a Decision of: Zoning Board :
of Adjustment :
:
Appeal of: Alyssa Schell and : No. 1249 C.D. 2023
Olde Richmond Civic Association :

ORDER

AND NOW, this 19th day of March, 2026, the October 4, 2023 order of
the Court of Common Pleas of Philadelphia County is REVERSED.

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CHRISTINE FIZZANO CANNON, Judge