A recent decision by the Pennsylvania Commonwealth Court serves as a useful illustration that use variances remain an extraordinary form of zoning relief and that applicants seeking to develop property outside permitted zoning classifications face a substantial burden.
In re: Appeal of: Schell & Olde Richmond Civic Ass’n, No. 1249 C.D. 2023 (Pa. Commw. Ct. 2026), the Commonwealth Court reversed a decision of the Philadelphia Zoning Board of Adjustment (ZBA) that had granted a use variance and related dimensional variances for a proposed multifamily development in a single-family residential zoning district.
The decision provides important guidance for any party seeking zoning relief in Philadelphia.
The Proposed Development
The applicant sought to consolidate three adjacent lots in Philadelphia's Olde Richmond neighborhood and construct a triplex within an RSA-5 zoning district, which permits single-family residential use. The applicant sought both use and dimensional variances from the ZBA. The ZBA approved the request, and the Court of Common Pleas affirmed that decision.
On appeal, the Commonwealth Court reversed the Court of Common Pleas’ order affirming the ZBA’s decision.
The Court's Key Holdings
The Commonwealth Court emphasized that a use variance is an "extraordinary exception" that should be granted sparingly. Unlike dimensional variances, which may be evaluated under a more flexible standard, use variances require strict proof of hardship.
The Court focused on the requirement found in the Philadelphia Zoning Code that the requested variance must represent the minimum relief necessary and the least modification possible of the zoning regulation at issue.
The applicant argued that the property's unique configuration, long-standing vacancy, and the character of the surrounding neighborhood justified the requested relief. The Court was not persuaded.
According to the Court, the record demonstrated that a permitted single-family residence could still be constructed on the property. Because a conforming use remained feasible, the applicant failed to establish that the requested multifamily use variance represented the minimum relief necessary to address any hardship. The Court therefore reversed the approval of both the use variance and the related dimensional variances.
Why This Decision Matters
The Schell decision reinforces several important principles for Philadelphia zoning appeals:
- Use variances remain difficult to obtain and are subject to a significantly higher standard than dimensional variances.
- Economic advantages, development preferences, or more efficient project designs may not be sufficient to justify a use variance.
- Appeals to an applicant’s preference or to neighborhood character in pursuit of a variance from a by-right will not be successful.
- The foundational issue to be scrutinize in a zoning appeal is whether the requested relief truly represents the minimum variance necessary.
Practical Implications for Philadelphia Development Projects
As Philadelphia continues to experience redevelopment activity and increasing pressure for housing and mixed-use projects, zoning strategy has become a critical component of project planning.
Before acquiring property, entering into development agreements, or pursuing zoning relief, developers should evaluate whether a project can proceed by right, whether a variance is likely to satisfy applicable legal standards, and whether an alternative approach may better position a project for approval.
The Schell decision demonstrates that assumptions regarding variance approval can create significant risk if not evaluated early in the development process.
How Counsel Can Help
Successful zoning and land use projects often begin long before an application is filed.
Property owners, developers, investors, landlords, and businesses should consider obtaining legal guidance early in the planning process to evaluate zoning classifications, development rights, variance strategies, community engagement considerations, and appeal risks.
Michael Egnal regularly advises clients on Philadelphia zoning, land use, development, acquisitions, and real estate matters. Whether evaluating a potential acquisition, pursuing development approvals, or responding to zoning challenges, experienced counsel can help identify risks and opportunities before they affect project timelines and investment objectives.
For questions about zoning, contact Michael Egnal or a member of Flaster Greenberg’s Real Estate & Land Use Department.
