Sunday, August 12, 2012

Variance Grant Amendment Ruling

German v. Zoning Board of Adjustment, 41 A.3d 947, 2012 Pa. Commw. LEXIS 110 (2012)
Frank Kosir, Jr., Esquire

This matter addressed the issue of whether a restaurant/bar was entitled to an amendment of a condition placed upon an earlier variance grant in order to permit an extension of its daily hours of operation.  Mixto, Inc. (“Mixto”) owns and operates a restaurant/bar at 1141-43 Pine Street (“Property”) in Philadelphia, Pennsylvania. In April 2001, Mixto applied for and was granted a variance by the Philadelphia Zoning Board of Adjustment (“Board”) to construct a two story addition at the Property and to operate a restaurant, the variance being specifically conditioned upon the restaurant being opened no later than 11:00 p.m. Monday through Thursday and 12:30 a.m. on Friday, Saturday, and Sunday.  In April 2008, Mixto submitted an application to the Philadelphia Department of Licenses and Inspections (“Department”) seeking a Zoning/Use Registration Permit to remain opened daily until 2:00 a.m. The Department denied the application, and Mixto appealed to the Board, which reversed, concluding that the significant number of restaurants in the area open until 2:00 a.m. constituted a changed circumstance that warranted an amendment of the conditions of the 2001 variance to permit Mixto to remain opened until 2:00 a.m. only on Thursday, Friday and Saturday nights.  Thereafter Carol German, a property owner in the area, appealed the Board’s determinations to the trial court, which affirmed.

On appeal, our Commonwealth Court reversed.  In issuing its ruling, the court noted that, in order to obtain a modification of a condition placed upon a previous grant of variance, an applicant must establish: (1) an entitlement to a traditional variance, or a change in circumstances that render the condition ineffective or inappropriate, and (2) an absence of injury to the public interest.  In this instance, the record was void of any evidence to establish a change in circumstances sufficient to warrant the modification of the 2001 variance.  Specifically, at the Board hearing, Mixto offered into evidence little more than its owner’s own testimony that many of its competitors are opened until 2:00 a.m., and failed to produce any evidence regarding the proximity of these competitors or their hours of operation at the time that the 2001 variance was granted.  Therefore, Mixto had failed to establish a change of circumstances sufficient to justify the amendment of the variance condition, and the Board had erred in granting the application. 

For additional information please contact Frank Kosir at

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