Opinion
No. 749 C.D. 2012
02-12-2013
Lim Chul Soo and Lim Sun Rye, Appellants v. City of Philadelphia Zoning Board of Adjustment
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Lim Chul Soo and Lim Sun Rye (Appellants) appeal from the March 21, 2012, order of the Court of Common Pleas of Philadelphia County (trial court), affirming the decision of the City of Philadelphia Zoning Board of Adjustment (ZBA), which denied Appellants' application for a variance to operate a wholesale jewelry store. We affirm.
Appellants own and operate a jewelry store at 5645-47 North Fifth Street in Philadelphia (Property). The Property is in the C-2 commercial zoning district. Appellants have sold jewelry at retail and at wholesale quantities at the Property since 1990. The C-2 zoning district permits retail businesses; however, the C-2 zoning district does not permit wholesale businesses.
The record reflects that Appellants, prior to 1990, operated the retail/wholesale jewelry store at a different location.
On March 24, 2011, Appellants applied for a use variance, requesting an allowance to continue to sell wholesale jewelry at the Property. On April 16, 2011, the Philadelphia Department of Licenses and Inspections (L&I) denied Appellants' variance application. On April 28, 2011, Appellants appealed to the ZBA, which held a public hearing on July 20, 2011.
The ZBA found that the C-2 zoning district did not permit the proposed wholesale use. (ZBA's Findings of Fact, No. 2.) Appellants' previous applications for the wholesale sale of jewelry were denied in July 1996, October 1996, and March 1998. (ZBA's Findings of Fact, No. 5.) Despite these prior refusals, Appellants have continuously operated both a retail and a wholesale jewelry store at the Property without the required permits for the wholesale use. (ZBA's Findings of Fact, No. 8.)
The ZBA concluded that:
3. The wholesale sale of jewelry at the Property is not, as [Appellants] contend, a prior nonconforming use which must be permitted to continue. While the use may have predated enactment of the Fifth Street Special District Controls, it has nonetheless always been prohibited under rules applicable to its basic C-2 zoning classification, which permit only retail sales. Indeed, it was the C-2 requirements, not the Special District Controls, which supported refusal of [Appellants'] prior applications (which
were submitted before the Special District Controls were enacted).(ZBA's Conclusions of Law, Nos. 3-4.) Further, the ZBA determined that Appellants were not entitled to a variance because they did not present evidence of a hardship. (ZBA's Conclusions of Law, No. 12.)
4. The wholesale sale of jewelry at the Property, having never been legal, does not qualify as a legal nonconforming use and is not entitled to the protections accruing to such use. . . .
The ZBA voted to deny Appellants' variance application and, on August 16, 2011, Appellants appealed to the trial court. The trial court affirmed and Appellants now appeal to this court.
Where the trial court takes no additional evidence, our scope of review is limited to determining whether the ZBA committed an error of law or abused its discretion. Bawa Muhaiyaddeen Fellowship v. Philadelphia Zoning Board of Adjustment, 19 A.3d 36, 39 n.1 (Pa. Cmwlth. 2011). The ZBA abuses its discretion when it makes material findings of fact that are not supported by substantial evidence. Id. Substantial evidence is defined as such relevant evidence that a reasonable mind would find adequate to support the conclusion. Id.
Initially, Appellants contend that the ZBA erred in failing to determine that Appellants' wholesale use is a pre-existing, nonconforming use because the use predates enactment of the Fifth Street Special District Controls (Controls). The Controls, enacted in 1990, specifically prohibit wholesale operations in the C-2 zoning district. Because Appellants operated a wholesale jewelry business prior to enactment of the Controls, Appellants claim a pre-existing, nonconforming use.
When a prohibitory zoning restriction is enacted after a lawful use has been established, the use becomes a pre-existing, nonconforming use. Hafner v. Zoning Hearing Board, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009).
The right to maintain this nonconforming use is only available for uses that were lawful when they came into existence and which existed when the ordinance took effect. Preexisting illegal uses cannot become nonconforming uses, and it is the burden of the party proposing the existence of such a use to establish both its existence and legality before the enactment of the ordinance at issue.Id. at 1210-11 (citations omitted).
Here, Appellants' Property is located in the C-2 zoning district. Section 14-303(1)(b) of Title 14 of the Philadelphia Zoning Code (Code) provides that uses permitted in the C-2 zoning district "[a]s respects the sale of goods or merchandise, shall be at retail." (Emphasis added.) As stated by the ZBA, the C-2 zoning district has never permitted wholesale operations. The Controls did not alter this fact. Appellants' wholesale use of the Property has always violated the Code. The ZBA correctly determined that the wholesale use was not a pre-existing lawful use in the C-2 zoning district.
We note that Title 14 of the Code was repealed and replaced by the provisions of Bill No. 110845, approved December 22, 2011, and effective August 22, 2012. Because the provisions were not in effect at the time of Appellants' application, we refer only to Title 14 of the Code.
It was, however, a lawful use in the C-3 zoning district. Section 14-304(1)(c)(.2) of the Code provides for uses permitted in the C-3 zoning district, stating that "said uses may be conducted at wholesale
Next, Appellants contend that their wholesale use is permitted as an accessory use pursuant to section 14-303(2)(s) of the Code, which provides for "[a]ccessory uses, customarily incidental to any of the above permitted uses . . . ."
An accessory use must be both subordinate and customarily incidental to the permitted main use of the property and usually found with the main use. Philadelphia Suburban Development Corp. v. Scranton Zoning Hearing Board, 41 A.3d 630, 633 (Pa. Cmwlth. 2012). A use is not an accessory use if it will actually be the main use of the property. Id. at 633-34. Further, it is Appellants' burden to prove that the wholesale use is customary and incidental to the retail use. Smith v. Zoning Hearing Board, 713 A.2d 1210, 1214 (Pa. Cmwlth. 1998).
In Ellis v. Zoning Hearing Board of North Cornwall Township, 571 A.2d 541, 543 (Pa. Cmwlth. 1990), we found the retail sale of beer an accessory use to a wholesale beer distributor because "retail beer sales are customarily incidental to wholesale distributorships." However, the same cannot be said for a wholesale business being found within, or incidental to, a retail business because wholesale businesses operate on a larger scale and deal with larger quantities, which they sell to retail businesses for resale. See Section 14-102(139) of the Code (defining wholesale as "[t]he sale of goods, merchandise or commodities to retailers and others for resale.")
Here, Appellants failed to present any evidence before the ZBA that their wholesale jewelry store use is subordinate and customarily incidental to their retail jewelry store use. The ZBA did not err in determining that Appellants' wholesale use was not an accessory use of its retail use.
Finally, Appellants contend that the ZBA erred in determining that Appellants would not suffer an unnecessary hardship without a variance. Section 14-1801(1)(c) of the Code authorizes the ZBA to grant a variance where such relief "will not be contrary to the public interest . . . [and] owing to special conditions, a literal enforcement of the provisions [of the Code] would result in unnecessary hardship."
Appellants also contend that the ZBA erred in not applying the "de minimis" doctrine. However, the "de minimis" doctrine is not applicable to use variance requests, only dimensional variance requests. See Appletree Land Development v. Zoning Hearing Board, 834 A.2d 1214, 1216 (Pa. Cmwlth. 2003) (stating that de minimis variance doctrine applies "only where . . . a minor deviation from the dimensional uses of a zoning ordinance is sought . . . .") (emphasis added); see also Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment, 604 A.2d 298, 305-06 (Pa. Cmwlth. 1992). --------
In order to prove an unnecessary hardship, Appellants must establish that: (1) the property cannot be used for the permitted use because of the property's physical features; (2) conforming the property to a permitted use would be at a prohibitive expense; or (3) the permitted use of the property renders it valueless. South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115, 121 (Pa. Cmwlth. 2012).
Appellants fail to demonstrate that: the Property cannot be used for its permitted retail use; the Property would need to be conformed for the retail use; or using the Property solely for retail sales would render the Property valueless. In fact, Appellants have been using the Property for retail jewelry sales since they purchased the Property in 1990. The ZBA did not err in determining that Appellants did not prove an unnecessary hardship.
The trial court correctly determined that substantial evidence supported the ZBA's findings and that the ZBA did not err or abuse its discretion. Accordingly, we affirm the trial court.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 12th day of February, 2013, we affirm the March 21, 2012, order of the Court of Common Pleas of Philadelphia County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge