LOWER COURT OPINIONS

The Opinion and Order of the Commonwealth Court are not reported. A copy is attached as Appendix C. The Court of Common Pleas Order and Decision are not reported. Copies are attached as Appendix B.

ORDER IN QUESTION

AND NOW, this 14^th day of March, 2003, the order of the Court of Common Pleas of Philadelphia County, dated August 29, 2001 at Nos. 2000-001202 September Term, 2000 and 2000-002398 October Term 2000, is reversed.

/s/

JAMES R. KELLY, Senior Judge

QUESTIONS PRESENTED

1. Where development entails a high probability of loss of lives because it places hundreds of proposed residents on an island in a major river floodway with highly restricted access, should the Courts lower the standard for granting variances to omit the requirement that an applicant for a variance prove that the variance will not harm the public health, safety and welfare?

2. Should the Courts depart from the well established standard for granting a variance to eliminate the requirement that an applicant prove that the requested variance is the minimum variance that will afford relief?

3. Is the reviewing role of a Common Pleas Court so narrow that it is required to affirm the conclusory grant of a variance made without factual findings, even where the Court finds on the uncontradicted evidence that the zoning board acted arbitrarily in dismissing the high probability for disastrous loss of lives, clear harm to the public welfare, and that the requested variance was not the minimum variance?

4. May zoning boards arbitrarily restrict testimony presented by protestants on major issues of life and death in order to reduce the hearing time?

STATEMENT OF THE CASE

The Philadelphia Board of Zoning Adjustment granted a use variance allowing 270 apartment units in the floodway of the Schuylkill River.⁽¹⁾ Reversing a Common Pleas decision, the Commonwealth Court reinstated the decision. The concurrent Common Pleas decision regarding an neighboring property which entails 162 apartments was also reversed; A Petition for Allowance of Appeal is pending.⁽²⁾

The Common Pleas Court aptly described the situation in its Opinion:

Cotton Street argues that, based on of [sic] Dr. Weggle's finding of compliance with FEMA regulatory requirements, it has met its burden under 14-1802(3)(a) and thus the Board's decision to grant the variance was correct. While Cotton Street may have achieved technical compliance with one provision of the Code, that does not address Cotton Street's duty to assure the health, safety and welfare of the residents of the area and of the City as a whole. Moreover, as set forth above, although FEMA recognized technical compliance with its regulations, FEMA's Director strongly warned both the Board and the Mayor of the City of Philadelphia that completion of this project was contrary to the goals and objectives of FEMA and that this development could jeopardize the City's entire participation in the FEMA program. It is important to note that this letter applies not just to these properties, but to the City as a whole.

Furthermore, the Board granted the variances based on its conclusions that the project would decrease the flood levels in the area. However, Cotton Street's own expert, Dr. Weggle, admitted that the water level changes caused by the proposed development would be negligible. Dr. Weggle also conceded that his calculations were specifically designed to satisfy FEMA's regulations and that if he were actually trying to design the project, he would have included the cars in the parking lot in his design to calculate flood resistance. However, because he was trying to do a calculation to satisfy FEMA's regulations, he did not include the cars. . . .

In reaching its decision, the Board chose to ignore the testimony that placing residential uses instead 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. Although an evacuation plan might be in place, Cotton Street'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 short. Additionally, the majority of the time that the Island was flooded was after dark, making any evacuation much more difficult.

Michael Kurtz, one of the few people who trains the people who trains water rescuers, also testified as to the likely impact of the project. Mr. Kurtz testified that most likely the conditions of Venice Island were such that the in the event of a Hurricane or other significant storm, the only rescue option would be by helicopter, the most dangerous type of rescue. Multiple witnesses agreed that in the event of a flood on Venice Island, water would be moving at a minimum of 8-10 feet per second, making it impossible for rescue boats to operate. . . Not only would this program cost the city thousands of dollars in training fees, equipment, and wages, but it would also take years for personnel to become competent in this form of rescue.⁽³⁾ . . .

Moreover, Cotton Street failed to provide the Board with an analysis of the impact that the increased traffic will have on the provision of emergency services to Venice Island. The proposed development has only a single access from land. A single accident at the bridge, or the train crossing, or a derailment could prevent all emergency access to the site. Instead, a single two-lane bridge would have to provide evacuation for between 392 and 575 cars with no place to park all of the cars after the evacuation.

Putting the physical dangers aside, this Court is particularly concerned by the fact that this project [sic] the Board risks forfeiting the rights of all Philadelphians to obtain flood insurance and federal disaster relief funds if it was found that the technical figures used to gain compliance with FEMA regulations were unsound. Mr. Witt also warned the Board that the City may face legal liability if it is found to have allowed construction where the loss of life and property are not only possible, but likely. Thus, this project not only poses a threat to the potential residents of the development, but to the entire City as a whole. (Trial Court Opinion, Appendix B, p. 14-9, emphasis added).

The Court of Common Pleas' findings were based on incontestable and uncontested facts. Historically, Venice Island consists of dredge materials taken from the river years ago. It floods regularly because the Schuylkill River (like most rivers) experiences extreme fluctuations of storm driven flood waters. (RR 218-24a). Venice Island floods to a depth of several feet on a statistical frequency of once every twelve years. (RR, 100a, 218-24a). Safe evacuation of a thousand or more residents would be necessary, chancy, and fraught with danger to the rescuers.

The property involved herein is occupied by a large warehouse/factory building, which operated as such until shortly prior to the time an application was filed to construct a new 270 unit apartment building. (RR 76a-77a).

The project required several variances, including use variances, as well as confronting the issue of floodway limitations. The Philadelphia Code sections on floodway limitations, mirrored federal FEMA standards. They, however, are oriented toward preventing increased downstream flooding, and therefore allow development according to whether it increases the flood level. (Philadelphia Code 14-1802(1)). This is not relevant to human safety where flooding is already an issue.

The developers of this project addressed FEMA concerns by proposing to construct the living areas of the project on stilts, thereby asserting that the project would not increase flood levels. (RR 175-6a). The Board accepted this evidence and virtually ignored the risk to life.

Yet, as the Common Pleas Court correctly held, increased flood height is not the life safety issue, and thus the evidence of effect on flood height is not material. As stated by the Common Pleas Court, supra, no evidence was presented to overcome the obvious propensity for human disaster. (Trial Court Opinion, Appendix B, p. 14).

In reversing Common Pleas, the Commonwealth Court did not cite which evidence supported the Board's decision.

It did not address the irreducible disastrous effect on life, merely deferring (without showing any connection to any evidence) to the Board's supposedly "supported" conclusory fact finding that the applicant showed no adverse effect. (Opinion Appendix C, p. 6-7.) The Board had also cited no evidence. In short, the Commonwealth Court simply closed its eyes to the Common Pleas' clear holding on the issue.

In this case, the Commonwealth Court provided no analysis of how the facts of this case supported the Board's decision. Instead, it extensively quoted the opinion of the panel in the companion case. (Opinion Appendix C, p. 9-11). While it may have been appropriate for one Commonwealth Court panel to follow the other, the precedential effect reinforces that it is absolutely necessary for this Court to review the cases because they set erroneous precedent and, as in this case, will be followed as dispositive. Moreover, allowing a thousand or more people to move into the floodway and be exposed to such a great threat to life is itself important enough to require this Court's intervention.

By moving residences into the floodway the variance imposes an unacceptable probability of loss of life to hundreds of residents and police, fire and emergency personnel. Safe evacuations would be difficult, if not impossible. As Miller, the water rescue expert, testified, at some point someone will die as a result of building in the floodway on Venice Island, possibly a firefighter having to rescue residents. (6/12/00, RR 524a). Additionally, the damage caused by flood waters carrying away the hundreds of vehicles parked in the floodway under and around the building would be immense.

Moreover, the Board's record was 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 344a). Notwithstanding the limitation to ten minutes for expert and other witnesses, the protestants did manage, as noted by the Common Pleas Court (Appendix B at 19), 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 524a, 526a) The evidence warned of potential collapse of structures or damage to structures due to debris such as trees and tractor trailers which would be carried by the flood waters. (RR 366a). The evidence also showed that emergency "plans" and measures don't mitigate this danger because people don't leave their homes (RR 225), they attempt to save their possessions (RR 594a), and the warnings come too late (RR 362a-363a). This project would create a death trap, with only one limited narrow access to the mainland. (RR 440a).

The Board, however, ignored these consequences. Instead, it exclusively focused on finding that the project would not increase downstream flood levels or traffic congestion as if the emergency conditions would not occur, without denying that emergencies would occur. (Conclusion of Law 14, RR 924a).

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, which contradicted the Commonwealth Court's own decisions by not treating catastrophic harm as a significant factor.

REASONS FOR ALLOWANCE OF APPEALI. DIRECTION AND GUIDANCE IS CRITICALLY NEEDED IN AN ESSENTIAL AREA OF LIFE SAFETY AS A REQUIREMENT FOR A VARIANCE.

The Court should grant allowance of appeal because the Commonwealth Court decisively 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. As development finds its way to more "difficult" sites and urban financial needs loom, definitive direction becomes imperative. 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.

The variance test has been very well established. In addition to requiring an unnecessary physical hardship which is not self-inflicted, a variance requires that:

. . . (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.

e.g., Ruddy v. Southampton Township, 669 A.2d 1051 (Pa.Cmwlth. 1995), citing 53 P.S. 10910.2.

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. In the instant case, the Commonwealth Court has freed zoning boards to disregard massive threats to public life and safety through the exercise of Zoning Board discretion and fact-finding authority and has rewritten the variance test to abrogate the requirements for proof of no-adverse effect on health and safety and of minimum variance.

Further, intervention by this Court is necessary to clarify this 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 zoning requirements so as to absolutely permit some development of all property. But the consequences to health and safety must be addressed. Should whatever extent of development is proposed be allowed, no matter how dangerous?

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 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 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 (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 all five 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).

Here, the Commonwealth Court departed from the basic teachings of this Court and its own cases by 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 public welfare and minimum variance issues, the Board and Commonwealth Court conclusorily skipped from a rule allowing some use in the floodplain due to hardship, to allowing whatever intensity use is proposed.

The Court relied on its decision in Ruddy v. Southampton Township, 669 A.2d 1051 (Pa.Cmwlth. 1995). In Ruddy, it had allowed a variance from flood plain restrictions for construction of a single residence. In doing so, the Court ignored 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 chance of possible harm with one, two or ten units, but a completely different likelihood of harm with two hundred and seventy units. Thus, the Court proceeded without analysis of the initial question, should a variance be granted, to grant a variance for two hundred and seventy units, based on the precedent allowing one unit.

Until now, in order to establish entitlement to a zoning variance, a landowner had to prove 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 the requirement of harm to the public health, safety, and welfare, 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: i.e., the flooding that will catastrophically affect the hundreds of people proposed to be living in a floodway. Instead, this issue was mischaracterized as an increase in downstream flood level issue.

Thus, 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 not set a precedent which will allow a multiplicity of such disastrous situations. It ratified the Board's abandonment of its duty to require proof of no adverse effect of the variance on the public health, safety, and welfare beyond the flood increase/decrease determination.

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 not the grand zoning boards for the state, they are a firewall against abuses of that power.

In Kraiser v. Zoning Hearing Board of Horsham Township, 406 A.2d 577 (Pa.Cmwlth. 1979), the Commonwealth Court held that 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 Kraiser 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).

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 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 affirmance 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.

....

SCRUB, 713 A.2d at 138 (citing Philadelphia Code 14-1604(1)(g)-(i)). Thus, until this case, 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 time constraints) of daytime or nighttime floods with inability to warn, severe constraints and elimination of any overland escape routes, the 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 problem. The instant decision violates the safety requirement.

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 abrogated. The Commonwealth Court unintentionally illustrated the problem by pointing to its Ruddy case as showing that where properties are otherwise unusable, development in the flood plain is to be allowed. It equated one unit in the flood plain with 270 units in the floodway, because it said the hardship was the same. It thus ignored the critical differences between the flood plain and the floodway; the flood plain is a ponding condition, whereas the floodway 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.

Herein lies need to prevent opening the flood gates on variances. Public health and safety impact basically reflects the prevention of injury from granting variances. The instant case, as it stands, says that those considerations are of little or no moment - in addition to placing lives in harm's way.

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

II. THE LAW OF VARIANCES THAT THE APPLICANT PROVE THAT THE REQUESTED VARIANCE IS THE MINIMUM VARIANCE NECESSARY MUST BE REVIEWED.

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.

The law has been 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 bald conclusion that the proposed 270 units was the minimum variance necessary to afford relief was unsupported by any evidence. (Conclusion of Law 12, RR 924a). The Board failed to cite any evidence.

In fact, in its original decision the Board itself implicitly found that the minimum variance was not 270, but 153 units. (RR 907a). The Board had originally granted a variance for 153 units. (RR 907a). The applicant then applied for reconsideration. At the reconsideration hearing, the applicant did not present any evidence on minimum variance (it never did). The only evidence that was presented related to traffic. The Board, nevertheless, then increased the density to allow the requested 270 units despite the appalling lack of any evidence to support its decision. (RR 909a).

Despite the issue being repeatedly raised in at least three briefs, the applicant has never cited any evidence. The Commonwealth Court completely ignored this issue. In fact, it failed to even apply the variance test to the facts in this case. Instead, it quoted extensively from the decision of its other panel in the prior case which baldly held that the Board's conclusion in that case was supported by substantial evidence. (Opinion, at 9-11). The applicant, the Board, and the Court were all unable to cite any evidence in the prior case as well.

The reason that no one can cite any evidence is that there is no evidence that this variance is the minimum variance necessary to afford relief. In fact, the recommendation of the Planning Commission, the decision of City Counsel to limit residential to a maximum of 153 units on this site under the new Ordinance, the imminent danger of living in the floodway, and the Board's original decision to limit construction to 153 units all show that this clearly was not the minimum variance. 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 270.

The law has been that the Board is 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. Where there is no evidence to support its decision, 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).

By this fundamental defect, the Commonwealth Court has changed the law such that the minimum variance prong, as well as the public safety prong, of the variance test is no longer relevant. The Court should grant allowance of appeal to address this problem.

III. THE TRIAL COURT'S PROPER ROLE IN REVIEWING BOARD DECISIONS SHOULD BE CLARIFIED.

The Commonwealth Court ignored the fact that the Board's decision failed to make any findings relating to credibility and its conclusions were not supported by evidence of record. Its decision sets a dangerous precedent because it establishes a standard of review which limits the Court's role in reviewing land use decisions so severely that the courts may not reverse a zoning board even where the Board fails to make factual findings, the applicant fails to present evidence to support all of the prongs of the variance test, and the decision is not supported by substantial evidence.

The rule is that a zoning board must provide an opinion which allows the appellate court to determine on what basis the Board made its decision. Lindquist Appeal, 364 Pa. 561, 73 A.2d 378, 380 (1950); Mill-Bridge Realty, Inc. v. Manchester Township Zoning Board of Adjustment, 286 A.2d 483 (Pa.Cmwlth. 1972). The Board 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, the onus then falls upon the Court of Common Pleas on appeal to make its own findings 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, 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). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View 462 A.2d at 640.

The rule was misapplied here, where 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 necessarily made findings based on the evidence because the onus was on it to make its own findings or reverse the decision of the Board, and its doing so was proper.

Moreover, the Court of Common Pleas specifically held that "the residential development proposed by Cotton Street poses too great a risk to human life and property even to approach the higher standard for approval of a variance." (Opinion, Appendix B at 19). In other words, no reasonable mind could accept the evidence before the Board as adequate to support granting the variance.

The Commonwealth Court, nevertheless, reversed, holding that the Court cannot substitute its own judgment even in this situation where there was no relevant evidence to support the Board's decision and there was overwhelming evidence of harm to the public in the form of lost lives, lost property, and the inability of the entire city to purchase flood insurance. The Commonwealth Court rule thus emasculates the role of the appellate courts in land use matters. This Court should clarify the law and correct the error.

IV. THE COMMONWEALTH COURT'S DECISION ALLOWS ZONING BOARDS TO ARBITRARILY AND DISCRIMINATORILY LIMIT EVIDENCE.

The Board violated the protestants' due process rights and discriminated against them by arbitrarily restricting the testimony they could present. It attempted to justify its actions by saying it wished to reduce the hearing time; the Board, however, only limited one side - the protestants. The Commonwealth Court opinion ignores this issue.

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 187a, 344a, 479a). The Board limited the petitioners' witnesses to ten minutes of testimony each, while allowing the applicant's witnesses unfettered opportunity to testify. (RR 344a). Even with these limitations, it expressed impatience with the petitioners' testimony. (RR 286a).

Clearly, by arbitrarily limiting the rights of the protestants to present evidence and discriminating in favor of the applicant, the Board undercut the due process rights of the protestants. A failure to afford full substantive and procedural process rights is an abuse of discretion. Eighteenth and Rittenhouse Associates v. Zoning Bd. of Adjustment, 26 Pa.Cmwlth. 554, 364 A.2d 973 (Pa.Cmwlth. 1976)(holding that "cursory adherence to substantive as well as to procedural due process requirements can, in the aggregate, bound on an abuse of discretion").

The petitioners moved the Court of Common Pleas to take additional evidence to remedy this abuse. 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, but resolved this issue by reversing the Board.

The Commonwealth Court, however, completely failed to address this issue. By reinstating the decision it approved the Board's policy. Its approval of the Board's policy to arbitrarily limit the due process rights of protestants requires that this Court act to define the minimum rights of parties.

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.

1. During the proceeding, the ordinance was amended to allow residential use, but not at the density authorized. Therefore, the applicant opted to proceed under the old Ordinance which does not permit any residential on Venice Island. (RR 913a).

2. Manayunk Neighborhood Council, et al, v. Zoning Board of Adjustment of Philadelphia, 153 EAL 2003, 154 EAL 2003.

3. Both Mr. Kurtz and Mr. Miller, an expert firefighter, testified that a firefighter is four times more likely to die in a water rescue than in any other rescue operations.