DATED: March 21, 2003

LOWER COURT OPINIONS

The decision and Order of the Commonwealth Court is reported at 815 A.2d 652. The Court of Common Pleas decision is not reported. A copy is attached as Appendix B.

ORDER IN QUESTION

AND NOW, this 23^rd day of December, 2002, the order of the Court of Common Pleas of Philadelphia County is hereby reversed.

/s/ Robert Simpson

J.

QUESTIONS PRESENTED

1. Should variances for large housing projects be allowable, despite high probabilities of loss of life and property, because the project places hundreds of residents in a major river floodway which regularly floods to a depth of several feet, with highly restricted access?

2. Is the Commonwealth Court correct in so limiting review of a zoning board decision, as to require the reviewing Court to affirm, even where it finds on the uncontradicted evidence that the zoning board acted arbitrarily in dismissing the prospect for disastrous loss of lives, is that Court authorized to find an abuse of discretion, or lack of sufficient evidence of no harm, or may the Commonwealth Court hold that such a finding is beyond

1

the Court's purview?

3. Is the reviewing role of a Common Pleas Court so narrow that it cannot override a conclusory unexplained zoning board ruling made without factual findings that the applicant proved no harm, in the face of overwhelming uncontradicted, common sense evidence of harm?

4. May a zoning board treat the judicial/legislative requirements that an applicant for a variance prove lack of adverse effect on public safety and welfare and minimum variance as a mere totem, or is it a meaningful command required to be complied with?

5. May a zoning board arbitrarily restrict protestants' substantive expert testimony on highly relevant issues to ten minutes, merely in order to reduce the hearing time, regarding major issues of life and death?

6. Is satisfying a standard of the floodway statute which permits building in the floodway if it does not increase the floodway (a standard directed at downstream and upstream impacts), the applicable test for permitting a large residential project of more than 160 units, where the project will regularly flood, and access is limited?

2

STATEMENT OF THE CASE

Reversing a Common Pleas decision, the Commonwealth Court reinstated a use variance granted by the Philadelphia Board of Zoning Adjustment to build 162 apartment units on a flood prone

island in the Schuylkill River.⁽¹⁾ The Common Pleas Court had reversed the Board. It aptly described the situation in its Opinion:

In reaching its decision, the Board chose to ignore the testimony that placing residential uses ahead of industry in floodways increases the risks associated with floods. Specifically, when industry is located in a floodway, management can direct employees to evacuate if flood waters begin to rise during the day and the businesses will be closed and largely vacant at night. Residents, on the other hand, would be reluctant to leave their homes, assuming that they even knew of the impending flood. Moreover, should a flood occur at night, potentially thousands of people would be trying to leave Venice Island by the only means of egress available, one two lane bridge. Although an evacuation plan might be in place, Dranoff's ability to implement the plan would be totally dependant on voluntary compliance by the residents. In the case of Hurricane Floyd, the flood warning came at 3:54 p.m. and the data shows that Venice Island was flooded sometime between 3 and 4 that afternoon. In other words, the warning came too late. Since flooding had already begun prior to the warning, the time to evacuate was extremely

1. During the proceeding, the ordinance was amended to allow residential use, but not at the density authorized.

3

short. Additionally, the majority of the time that the Island was flooded was after dark, making any evacuation much more difficult.

Further, as pointed out by Mr. Miller, a professional water rescue expert, 90% of flood victims die in or near their cars because they won't follow evacuation plans. . . .

The uncontroverted testimony in this case is that there is only one two lane road connecting this section of Venice Island in Manayunk which, with the approval of the variances, would have to serve the Arroyo Grill, the occupants of the development, and the tractor trailers going to Stone Smurfit, the remaining business on Venice Island. From this testimony, it is logical to conclude, especially without any evidence to the contrary, that the construction of the residential development will increase the risk of danger not only to the residents, but to firefighters, police and other emergency personnel.

(RR 610a-611a).

This characterization is based on incontestable and uncontested facts. Historically, Venice Island consists of dredge materials taken from the river years ago. Unlike the real Venice, however, Venice Island floods regularly because, unlike the Adriatic Sea, the Schuylkill River (like most rivers) experiences extreme fluctuations of storm driven flood waters. (RR 18a, 40a, 64a). Venice Island floods to a depth of several feet on a statistical one in ten year basis, known as a recurrence interval (RR 194a).

4

The downstream end involved herein is occupied by a large factory building, which operated as such until shortly prior to the time an application was filed to construct some 162 apartments to replace the factory building. (RR 323a-4a). The project required several variances, including use variances, as well as confronting the issue of floodway limitations. The Philadelphia Ordinance floodway limitations, mirrored on federal FEMA standards, are oriented toward preventing enhanced flooding, and therefore regulated development according to whether it increased the flood level. (Philadelphia Code 14-1802(1)).

The developers of this project dealt with the floodway issue by proposing to construct the living areas of the project on stilts, thereby asserting that the project would not increase flood levels. (RR 248a). The Board blithely accepted this evidence.

Yet, this is not the issue, and the evidence is not material to the issue: safety. As stated by the Common Pleas Court, supra, no evidence was presented to overcome the obvious propensity for human disaster.

Nevertheless, the Commonwealth Court reversed, citing the same evidence as to increasing flooding. It acknowledged the life safety issues implicitly by referring to the developer's

5

promise of alarms and manuals (Opinion, p.2), but did not address the irreducible disastrous effect on health, merely deferring (without showing any connection to any evidence) to the zoning board's "supported" conclusory fact finding that the applicant showed no adverse effect. (Opinion, p.10-11.) The zoning board had cited no evidence. In short, the Commonwealth Court simply closed its eyes to the lower court's clear holding on the issue.

Thus, the decision establishes that a variance is authorized, without any proof, or fact finding, on a basic variance issue, whether the placement of 162 apartments in the floodway where flood waters would be flooding out the land under the project every ten years on the average (potentially much more frequently from time to time) creates an unacceptable probability of loss of health and life to hundreds of residents and police, fire and emergency personnel, in terms of evacuation, as well as the damage to be caused by floating away the hundreds of vehicles parked in the floodway under and around the building on the ground level.

The Board's record had been limited by highly truncated hearings, in which the Board's focus was on hearing the applicant's evidence, and limiting to a minimum the opportunity for protestant expert testimony on these issues. (RR 226a).

6

Notwithstanding the limitation to ten minutes for expert and other witnesses, the protestants did manage, as noted by the Common Pleas (RR 611a), to present uncontradicted and uncontradictable testimony as to the likelihood for flooding, and the consequences likely to occur.

Protestants showed fire and other rescue personnel might find it impossible to evacuate the building (RR 611a); potential collapse of structures or damage to structures, would create a death trap, with only one limited narrow access to the mainland, and failure to follow emergency "plans." (RR 401a). The Board, however, focused on flood levels not increasing and numbers of vehicles versus existing traffic as if the bottleneck would not exist, and emergency conditions would not occur, without denying that emergencies would occur. (RR 498a).

The Board also failed to find any facts to support a conclusion that far fewer homes would not be feasible, i.e. a minimum variance. The result, foreseeably, was a Kafkaesque standardized decision with standardized findings not addressing these issues, and contradicted its own decisions by not treating catastrophic harm as a considerable factor.

REASONS FOR ALLOWANCE OF APPEAL

I. THE BOARD AND THE COMMONWEALTH COURT FUNDAMENTALLY DEPARTED

7

I. FROM THE REQUIREMENTS TO GRANT A VARIANCE BY NOT REQUIRING PROOF

OS LACK OF HARM AND MINIMUM VARIANCE.

When confronted with the harsh realities of urban decline in the 1990's, this Court carefully limited the accommodation to the situation, providing only that dimensional variances could loosen the requirements for a variance, and only as to hardship. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998). This Court was careful not to loosen standards to allow unpermitted uses without conforming to the basic test of hardship and public safety. Hertzberg, 721 A.2d at 47. The Court should grant allowance of appeal because the Commonwealth Court decidedly departed from the well established standards for variances to allow a variance when the evidence proved that it will cause massive disastrous consequences including the likelihood of loss of life. The instant case is attached to the limits of allowable willful disregard of massive threats to public life and safety, through the exercise of Zoning Board discretion and fact-finding authority; and potential rewriting of the variance to abrogate the requirements for proof of no-adverse affect on health and safety; and of minimum variance. Direction and guidance is critically needed in an essential area as development finds its way to more "difficult"

8

sites; and urban financial needs loom. Unless this Court acts, variances will become a trump card freely overriding safety constraints, and creating harbingers of disaster; the events of the very recent past in Rhode Island are a chilling forecast of the consequences of giving in to the temptation to bypass or override safety-based limitations, in the interest of getting on with it, and the tendency to ignore that which is inconvenient to address.

Essentially, intervention by this court is necessary to clarify any extremely important developing aspect of variance law in light of the U.S. Supreme Court decisions on limits of regulatory measures on property: the U. S. Supreme Court in such cases as Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 122 S.Ct. 1465 (U.S. 2002), has established that to balance protection of the public welfare, some value must be allowed to private property in regard to investment backed expectations. This doctrine is now fostering a temptation to modify the zoning requirements so as to absolutely permit some development of all property, but the consequences to health and safety must be addressed, no matter how dangerous? Is there a minimum amount of development which must be allowed on

9

every property?

The issue of how many units to allow, in this context, needs to be addressed so as to define how, if at all, the health and safety requirement and minimum variance requirements are to be compromised. Prima facie, there is no reason why a few housing units would not satisfy the usability requirement, while at the same time minimizing the adverse effect on health and safety; clearly, rescuing 10, 20 or 30 persons may be much more manageable than rescuing and/or evacuating three or four hundred

in a nighttime flash flood event. (This assumes, of course, there is some compromise of health and safety restrictions on variances, allowing some dangerous conditions).

Zoning law in its inception and development has fundamentally maintained its integrity through uniform rules. 53 P.S. 10912.2 (not directly applicable to Philadelphia, but applied in Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 713 A.2d 135 (Pa.Cmwlth. 1998)). See also Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 462 A.2d 637(Pa. 1983). To protect against erosion, the law has been clear for a long time that a variance should not be granted where it appears (and the applicant does not disprove) that there will be

10

substantial danger to the public health and safety if the application is granted. See Valley View, 462 A.2d at 640 (stating "the party seeking the variance bears the burden of proving that . . . the proposed use will not be contrary to the public interest"). The Commonwealth Court itself has repeatedly reiterated this doctrine, which derives from Valley View and other decisions of this Court which have been clear and consistent.

A zoning hearing board may grant a variance when the following criteria are met:

(1) an unnecessary hardship will result if the variance is denied, due to the unique physical circumstances or conditions of the property; (2) because of such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship is not self-inflicted; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.

Ruddy v. Southampton Township, 669 A.2d 1051 (Pa.Cmwlth. 1995), citing 53 P.S. 10910.2. A variance applicant must show that unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest. Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 721 A.2d 43

11

(Pa. 1998).

Specifically to Philadelphia, the Board is given the authority to grant a variance under Philadelphia Code 14-1801(c) which is limited in the same fashion as the MPC.

This Court has repeatedly found that the Board does not have the power to grant a variance absent a showing that these conditions are met. Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365, 369 (Pa.Cmwlth. 1994).

The Commonwealth Court departed from the basic teachings of this Court in its own cases ignoring the separate requirements of proving lack of harm and minimum variance, by confusing the separate issues involved in the variance. It treated the owner's hardship as if it obviated the harm to the public; it dealt with the permission to build in the floodplain where land is otherwise unusable as obviating the harm, and gave short shift to the harm; by not focusing on the minimum variance issue, and conclusorily

proceeding from permitting some use in the floodplain due to the hardship, ignoring the fact that, where the issue is, among other things, the ability to evacuate successfully in the event of a flood disaster, there would be only a small level of possible harm with one, two or ten units, but a completely different level

12

of harm with one hundred and sixty-two units. Thus, the Court proceeded without analysis of the initial question should a variance be granted, to grant a variance for one hundred and sixty units, based on precedent allowing one unit, Ruddy v. Southampton Township, 669 A.2d 1051 (Pa.Cmwlth. 1995), and supported its conclusion with the irrelevant observation that hardship is hardship. (Opinion, at 9).

In order to establish entitlement to a zoning variance, a landowner must show all the five factors in Valley View and the statute: that the ordinance imposes unnecessary hardship on the property, the hardship stems from unique physical characteristics of the property, the variance would not adversely impact on the health, safety or welfare of the general public, and, where relevant, the hardship is not self-inflicted and the variance sought is the minimum variance that will afford relief. In case after case, the courts of the Commonwealth have been careful to require that each and every element of the variance test must be met in order for a variance to be properly granted. Rennerdale Volunteer Fire Department v. Zoning Hearing Board of Collier Township, 496 A.2d 431 (Pa.Cmwlth. 1984). See also Ramondo v. Zoning Hearing Board of Haverford Township, 434 A.2d 204

(Pa.Cmwlth. 1981); Vagnoni v. Zoning Hearing Board of Exeter Township, 459 A.2d 1361 (Pa.Cmwlth. 1983).

Here, the Commonwealth Court dropped or merged the

13

requirement of harm to the public health, safety, and welfare, apparently leading to the conclusion that meeting the hardship requirement is sufficient to grant a variance.

Most importantly, the discussion did not address the no-harm test: the flooding will catastrophically affect 300 people proposed to be living in a floodway. This issue was not mischaracterized as an increase in flood level issue: the only evidence that the Board and the Commonwealth Court cited regarding harm to the public welfare was the testimony of the appellee's experts that the construction would cause a net decrease in the 100 year flood level; it was irrelevant because the very witness on whom they rely testified that the decrease was almost imperceptible (RR 149a); there was no real benefit, it was "very, very negligible." Id.

The point missed by the Board and Commonwealth Court is that the calculations were designed to obtain the result of technical compliance with a rule not to increase flood levels. (RR 156a);⁽²⁾ it does not address the safety of the occupants or their rescuers.

The applicant and the Commonwealth Court have both treated the Federal Emergency Management Agency (FEMA) standards as if

2. He admitted that, had he been calculating the actual design of the project, he would have used different calculations. (RR 156a).

14

they address the life safety issues. It is apparent on the face of the standards and the discussion of the Commonwealth Court and the Court of Common Pleas, however, that they do not do so and do not purport to do so, and are not structured to do so. To state only the obvious, it is self-evident that a standard which allows construction in the floodway provided that it does not increase the height of the flood, has no relevance to the issue of evacuation in emergency disaster situations. Obviously, the standard is directed at other issues, namely prevention of down stream increases in historic flood heights, etc. Likewise, it is beyond question that the FEMA standard does not address the potential for automobiles to be floated down stream, since it says nothing about automobiles, e.g., parking lots. This is yet another example. Despite this, the Commonwealth Court opinion creates a new standard, namely, ignoring public health and safety, based on an irrelevant criterion, and thereby underscores both the departure from established jurisprudence; and the need to correct it so as to prevent disaster in this situation, and precedent which will allow multiplicity of such disastrous situations.

Thus, the Commonwealth Court ratified the Board abandonment of its duty to require proof of no effect of the variance on the public health, safety, and welfare beyond the flood increase/decrease determination. The uncontradicted evidence,

15

however, showed that this project, by moving 162 apartment units into the floodway, would dramatically harm the public health,

safety, and welfare. The variance will cause loss of lives due to congestion on the single access (if residents are awake and able to evacuate).

The Board made no finding on these issues and the Commonwealth Court erroneously treated the question (following the Ruddy v. Lower Southampton Township Zoning Hearing Bd., 669 A.2d 1051, 1053 (Pa.Cmwlth. 1995), case) as an issue of hardship, not adverse effect. However, even Ruddy held that every element of the variance test needed to be met, not just hardship. Here, the Board had simply found that the project would result in a decrease in the 100 year flood and, therefore, concluded that the public health, safety and welfare would not be adversely affected.

By departing from this critical test, the Commonwealth Court allows and even implicitly instructs Boards to ignore the public health, safety and welfare requirement fundamental to variance limitations. It overlooked the fact that the Board did not weigh the evidence and granted the variance despite the fact that the record did not support it. While the courts are the grand zoning boards for the state, they are a firewall against abuses of that power. The Commonwealth Court's decision should be reviewed because it overlooked the Board's failure to consider the dangers

16

of catastrophic flooding.

In Kraiser v. Zoning Hearing Board of Horsham Township, 406 A.2d 577 (Pa.Cmwlth. 1979), the Commonwealth Court held zoning boards must regulate development of flood-prone land. In Kraiser, the zoning board refused a variance for the construction of a duplex residential dwelling in an area zoned as a flood plain. The Court of Common Pleas affirmed the decision of the board, and, in affirming the decision of the Court of Common Pleas, the Commonwealth Court stressed:

We find in the record substantial evidence of flooding and drainage problems to support the conclusions of the Board and the trial court that a variance in these circumstances would be harmful to the community. Moreover, it can be properly concluded that building on the flood plain would increase flood height and conceivably increase the hazard to the inhabitants of other buildings both on and away from the zoned areas. The zoning ordinance strikes a satisfactory balance between a property owner's interest in developing his property as he wishes and the duty of the Board to regulate development of flood-prone land.

Kraiser, 406 A.2d at 578 (emphasis added).

Moreover, until the instant case, the Commonwealth Court has consistently been at the forefront of minimizing the temptation to disregard the rules in order to simply maximize profits. In Ramondo v. Zoning Hearing Board of Haverford Township, 434 A.2d 204 (Pa.Cmwlth. 1981), the Court of Common Pleas reversed a decision of the zoning board denying a variance seeking to build and operate a beer distributorship over two contiguous

17

properties. The Commonwealth Court reversed the decision of the Court of Common Pleas, citing, inter alia, that the proposed use would create a hazardous condition for the public by way of a substantial increase in truck traffic. In its opinion, the Commonwealth Court stated:

Although the failure to show a hardship is itself fatal to Ramondo's position, we note that the variance request also fails because, if granted, the variance would detrimentally affect public safety.

Ramondo, 434 A.2d at 206.

Most recently, the Commonwealth Court in Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 713 A.2d 135 (Pa.Cmwlth. 1998), reversed the Common Pleas Court's affirmation of the board's grant of a variance to erect a large double-sided outdoor sign within 660 feet of an existing right of way. In reversing the lower court's decision, the Commonwealth Court opined:

Furthermore, the Board committed an error of law when it determined that granting the variance would not be contrary to the public interest. . . .The legislative findings of the City Council, written as a preamble to the regulations of outdoor advertising, include the following:

(g) Said signs jeopardize public safety by distracting pedestrians and to a greater extent passing motorists, since these signs by their nature are erected in areas intended to be seen by drivers of motor vehicles.

(h) Regulation and removal of these signs will promote traffic safety by eliminating the hazard to pedestrians and motorists posed by distracting and confusing sign displays.

....

18

SCRUB, 713 A.2d at 138 (citing Philadelphia Code 14-1604(1)(g)-(i)). Thus, the Commonwealth Court has consistently held that proof of lack of harm to public health and safety is an essential requirement for a variance.

Clearly, the unrebutted and obvious danger identified by witnesses (despite the severe constraints) of the public being subjected to daytime or nighttime floods with inability to warn, severe constraints and possible elimination of any overland

escape routes, and the difficulty or impossibility of mobilizing exotic rescue strategies like helicopters or boats, and the dangers involved in those activities especially in the nighttime, make the idea of harm to public health and safety an unrebuttable and clear problem. The instant decision violates this fundamental concept. In Ruddy, supra, a single unit to permit some use in the flood plain (not flood way), was allowed. In contrast, in the instant case, the flood analysis by the Commonwealth Court not only led to a radically erroneous departure from well established law; but provides clearly unacceptable guidance for future cases, and therefore requires correction and clarification.

This case shows that there will be significant instances of short sighted profit making and the creation of major risks, if the variance standard is not upheld. The Commonwealth Court

19

illustrated the problem by pointing to its "ready case" as showing that were properties are otherwise unusable, development in the flood plain is to be allowed. The Commonwealth Court equated one unit in the flood plain with 162 units in the flood plain, because it said the hardship was the same. The Commonwealth Court, however, ignored the critical differential between the flood plain and the floodway; the flood plain is a ponding condition, where the flood way is the raging flood waters, and the safety factor is entirely different; in addition, the difficulty of rescuing and evacuating three to five hundred people is obviously different than the feasibility of rescuing and evacuation three to five people in a single residence. The Commonwealth Court seemingly acknowledged the severity of the problem by identifying the evacuation measures that would be put in place, according to the developer; alarm systems, emergency evacuation manuals, and stilts (Opinion, at 2). Undoubtedly the Commonwealth Court, however, did not realize that the perceived need for such measures only underscores the full heartedness of constructing such a project.

Herein lies the test of this Court's well-established doctrines, and the potential for opening the flood gates of basic restrictions on variances, to ignore the underlying rationale for refusing variances: that variances will inherently defeat the organized planning that justifies zoning. The concept of public

20

health and safety impact, as does the concept of minimum variance, basically reflect the prevention of and/or minimization of injury to the general plan from granting variances. The instant case, as it stands, departs from law and says that those considerations are of little or no moment-in addition to placing lives in harm's way.

Based on this unequivocal legal history, therefore, the decision of the Commonwealth Court in this case must be reviewed, and the law set straight.

II. THE COMMONWEALTH COURT ALLOWS ZONING BOARDS TO ARBITRARILY AND DISCRIMINATORILY LIMIT EVIDENCE.

The record was fundamentally incomplete because the Board arbitrarily and improperly limited the testimony of the petitioners. The Commonwealth Court ignored this fact.

The Board was clearly intent on ignoring the petitioners and preventing them from interfering with the variance approval. The Chairman mocked them. (RR 187a). The Board repeatedly berated and cut them off. (RR 226a, 359a). For no reason, the Board limited the petitioners' witnesses to ten minutes of testimony each, while allowing Dranoff's witnesses unfettered opportunity to testify. (RR 226a). Even with the limitations, it expressed impatience with the petitioners' testimony. (RR 360a).

Moreover, the petitioners, despite requests, were denied access to the data on which Dranoff based its studies. (RR 235a,

21

266a, 274a).

It resolved this issue by reversing the Board. Under the Philadelphia Zoning Code, the petitioners should be permitted to take additional evidence if it is "necessary for making a determination of the issues presented." Korngold v. Zoning Bd. of Adjustment of City of Philadelphia, 147 Pa.Cmwlth. 93, 606 A.2d 1276 (Pa.Cmwlth. 1992). The Court of Common Pleas denied the petitioners' motion to expand the record. The Commonwealth Court's failure to address the issue requires that this Court act to define minimum rights of parties.

III. THE COMMONWEALTH COURT DECISION CHANGES THE LAW OF VARIANCES TO NO LONGER REQUIRE THAT THE APPLICANT PROVE THAT THE REQUESTED VARIANCE WAS THE MINIMUM VARIANCE NECESSARY.

The Commonwealth Court decision is contrary to the well established precedent of this Court that the applicant must prove that the proposed variance is the minimum variance.

In order to obtain a variance, it is axiomatic that the applicant for the variance must prove that the variance, if authorized, "is the minimum variance that will afford relief and is the least modification of the regulation at issue." Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (Pa. 1998); Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365, 369 (Pa.Cmwlth. 1994).

The Board's conclusion that the proposed 162 units was the

22

minimum variance necessary to afford relief was a bald conclusion that was unsupported by any evidence of record. (Conclusion of Law 20, RR 500a). The Board failed to cite any evidence. Despite the issue being repeatedly raised in at least three briefs, Dranoff has never cited any evidence. The Commonwealth Court, however, held that the Board's conclusion was supported by substantial evidence. (Opinion, at 11). It never cited any evidence either.

The law has been that the Board was required to make specific findings on the minimum variance issue. Haverford Tp. v. Zoning Hearing Bd. of Haverford Tp., 55 Pa.Cmwlth. 209, 213, 423 A.2d 757, 759 (Pa.Cmwlth. 1981). It is not enough to simply conclude that the standard has been met. Id.

The reason that no one can cite any evidence is that there is no evidence in the record that this variance is the minimum variance necessary to afford relief. It is established that without evidence, the Board abuses its discretion and errs as a matter of law. Lake Adventure, Inc. v. Zoning Hearing Board of Dingman Township, 440 A.2d 1284 (Pa.Cmwlth. 1982).

The Commonwealth Court ignores, as the Zoning Board did, in determining hardship and the lack of the alternative uses of the property, the fact that it was admittedly used as a factory until six months prior to the application; it was voluntarily closed. There was no testimony as to any attempts to market the property

23

for the existing industrial use, thus negating any possible support for the conclusion of the Zoning Board, upon which the Commonwealth Court relied, that there is no alternative use for the property. To the extent that this was true, however, that can be addressed by providing for some development without providing for the maximum development such as proposed by the developer. When life safety issues are factored in, it is evident that the solution to any perceived problem of no available use is to permit some residential (20, 30 or 40 units), but not 162. By not addressing this Commonwealth Court showed that minimum variance as well as public safety is no long relevant.

By ignoring this foundational defect, the Commonwealth Court's decision essentially eliminates this long standing, fundamental requirement from variance law. The Court should grant allowance of appeal and fix this mistake.

IV. THE COMMONWEALTH COURT'S RULING LIMITS THE LOWER COURT'S PROPER ROLE IN REVIEWING BOARD DECISIONS.

The Commonwealth Court ignored the fact that the Board's decision failed to make any findings relating to credibility or support its conclusions with evidence of record.

Cases have consistently held that the Board must provide an opinion which allows the appellate courts "to determine on what basis the Board made its decision." Mill-Bridge Realty, Inc. v.

24

Manchester Township Zoning Board of Adjustment, 286 A.2d 483 (Pa.Cmwlth. 1972). It must make specific findings to support each of the variance requirements. Haverford, 423 A.2d at 759 (Pa.Cmwlth. 1981).

Where a board makes no findings of fact to serve as basis for its decision, cases hold the onus then falls upon the Court of Common Pleas on appeal to make its own findings possibly based on the record compiled before the Board. Hess v. Upper Oxford Tp., 332 A.2d 836, 17 Pa.Cmwlth. 399 (Pa.Cmwlth. 1975); see also Lando v. Springettsbury Township Zoning Board of Adjustment, 4 Pa.Cmwlth. 312, 286 A.2d 924, 927 (1972). Moreover, where an abuse of discretion occurs where the zoning board's findings are unsupported by "substantial evidence," warranting reversal of the zoning board decision. Collier Stone Company v. Zoning Hearing Board for the Township of Collier, et al., 710 A.2d 123 (Pa.Cmwlth. 1998).

Here, the Board decision did not show how it reached and supported its findings. Its conclusions were devoid of factual support and the findings of fact failed to weigh the evidence. The Common Pleas court properly made findings based on the evidence because the onus, thus, was on it to make its own findings or reverse the decision of the zoning board, and its doing so was proper.

25

CONCLUSION

For the foregoing reasons, the Court should allow the appeal, reverse the decision of the Commonwealth Court, and reinstate the decision of the Court of Common Pleas.

26