W. and D. Mercy, and W. Tollinger, as Attorney-in-Fact for B. Tollinger v. ZHB of Cross Roads Borough, and Lauer Bros. Properties, LLC ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Walter and Dustine Mercy, and :
William Tollinger, as Attorney-in-Fact :
for Betty Tollinger, :
Appellants :
: No. 900 C.D. 2017
v. :
: Submitted: April 10, 2018
Zoning Hearing Board of Cross :
Roads Borough, and :
Lauer Bros. Properties, LLC :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 19, 2018
Walter and Dustine Mercy, and William Tollinger, as Attorney-in-Fact for
Betty Tollinger (collectively, Appellants), appeal from the June 12, 2017 order of the
Court of Common Pleas of York County (trial court) affirming the decision of the
Zoning Hearing Board of Cross Roads Borough (Board), which granted the application
of Lauer Bros. Properties, LLC (Applicant) for a special exception to expand a
nonconforming use on its property located at 6642 Church Street, Felton, Pennsylvania
(the Property).
Facts and Procedural History
The Property consists of approximately 116,429 square feet, or 2.673
acres, and is located in a Residential-Agricultural (R-A) Zone. Applicant alleged that
prior to April 13, 1995, the effective date of the Cross Roads Borough Zoning
Ordinance (Ordinance), the Property was used for equipment storage. On July 26,
2016, Applicant sought a special exception to expand this nonconforming use to
include storage of recreation vehicles (RVs). However, on August 29, 2016, Applicant
filed an amended application with the Board seeking a special exception to expand the
nonconforming use to only include storage of a limited number of RVs and short-term,
temporary parking of RVs. In its application, Applicant noted that the proposed
expansion area consisted of 10,000 square feet, well under the permitted maximum
expansion of 35% for a nonconforming use. (Board’s Findings of Fact Nos. 1-7.)
At a Board hearing on August 30, 2016, Applicant formally withdrew its
original application and advised that it was proceeding solely with respect to its
amended application. The Board noted that Applicant was seeking permission to store
up to 10 RVs at any one time on the Property. In support of its application, Applicant
presented the testimony of Mark Lauer, its owner. Lauer testified that the Property
would not be used for the sale, rental, washing, or fueling of RVs, that he did not
propose to construct any additional structures on the Property, 1 and that he intended to
fix a broken concrete pad near the front of the Property and lay stone in the proposed
parking area. Lauer confirmed that he intended to store no more than 10 RVs on the
Property at any given point in time. Lauer further stated that he was agreeable to the
imposition of some screening requirements as a condition of approval. (Board’s
Findings of Fact Nos. 8-12.)
1
The property included a residential building, which was leased to an individual by the name
of Charles Hobbs. (Board’s Finding of Fact No. 13.)
2
Lauer explained that he did not own any of the RVs that he intended to
store on the Property; rather, one of his other business entities, Keystone Alternatives,
owned the RVs. Lauer noted that he had several display lots throughout Cross Roads
Borough (Borough) and York County from which he rented the RVs to the public.
Lauer stated that he had previously stored RVs on the Property and received a warning
from the Borough’s zoning officer, after which he conversed with the zoning officer
regarding the issuance of a certificate for storage of the vehicles and provided photos
and documentation establishing that the Property had been used for storage of farm
equipment and one or two RVs prior to the enactment of the Ordinance. He believed
that the zoning officer and the Borough’s solicitor were satisfied that such use was pre-
existing. (Reproduced Record (R.R.) at 89a-91a.)
Lauer testified that he does not generally wash RVs on the Property and
only occasionally washes an RV for personal use. He denied using any chemicals
during such washes, instead relying on a power washer to remove any bugs and/or dirt.
He agreed to a reasonable limit of the number of RVs allowed on the Property and to a
limitation on washing. Lauer noted that he had water testing performed on nearby
wells and presented an exhibit concluding that the water passed all tests and was in
compliance with Department of Environmental Protection (DEP) standards. He also
submitted a letter from a local police department referencing no accidents involving
RVs on the stretch of road near the Property. (R.R. at 93a-100a.)
On cross-examination, Lauer explained that most of his rental business is
performed via phone or online and that the RVs are picked up at one of his display lots.
He emphasized that he only wished to utilize the Property for the storage of RVs. He
noted that his rental business, Keystone Alternatives, currently owns approximately 15
RVs, but that he is seeking storage for no more than 10 on the Property at any one time.
With regard to the well water testing, Lauer stated that he decided, after the
3
contamination issue was raised at a planning commission meeting, to collect samples
from the two wells closest to the Property, which were then sent to a private laboratory
for analysis, with the exception of one part of the analysis that had to be performed by
DEP. He also identified an area to the rear of the Property where the RVs would be
stored, as well as a smaller area nearby to be used solely for temporary parking. He
noted that any dumping and fueling of RVs would take place off-site and that he would
be willing to add screening/vegetation to obscure the view if requested by the
neighbors. He further testified that he had no plans to conduct sales of RVs at the site
and that he did not plan on having potential rental customers view the RVs at the
Property. Upon questioning by neighboring landowners, Lauer indicated that no RV
maintenance will be performed at the Property, including changing oils or fluids. (R.R.
at 102a-49a.)
Applicant also presented the testimony of its tenant, Charles Hobbs.
Hobbs testified that his mother had previously owned the Property and that he grew up
there. Hobbs stated that there had always been agricultural equipment stored on the
Property, most of which belonged to friends and neighbors and not to his family. He
indicated that RVs had been stored on the Property prior to 2005, but no more than two
at any time. He noted that one of the RVs regularly stored at the Property was owned
by his brother and leased to Lauer. He also noted that there has never been any signage,
sales, or even an office at the Property. Additionally, he noted that he had only
observed approximately two to three RV washings every three months over the last
year and no more than two covered trailers on site at any one time. (R.R. at 41a-57a.)
On cross-examination, Hobbs explained that he purchased the Property
from his mother’s estate in 2012 and later sold it to Lauer. He reiterated that from the
time he was a young child, there was farm equipment stored on the Property, most of
which belonged to a neighbor who ran a farm, and that some equipment was still on
4
site when he purchased the Property in 2012. He acknowledged that his mother never
rented out any farm equipment at the Property. Between 1995 and 2005, Hobbs
testified that his brother and uncle might have each stored an RV on the Property.
However, he could not testify that there was RV storage in continuous use since 1995,
the year in which the Ordinance was enacted. Finally, he testified as to his belief that
Lauer intended to store no more than 10 RVs on the Property. (R.R. at 58a-80a.)
Chris Mercy and Appellant William Tollinger, neighboring landowners,
testified in opposition to Applicant’s request for a special exception. Mercy stated that
he owns property adjacent to and east of Applicant’s property, which he purchased in
2000. From 2000 to 2015, Mercy described seeing farm equipment and one or two
RVs being stored on the Property at times. He noted that some of the farm equipment
belonged to his father and grandfather and was for personal use. He denied knowledge
of any commercial storage business existing on the Property. He also testified that the
storage use was not continuous in nature, as he did not see RVs on the Property every
day. On cross-examination, Mercy acknowledged that he no longer lives on the
neighboring property and moved to a new address sometime in 2014. However, Mercy
testified that he still cuts the grass at his own property every week or two. (Notes of
Testimony (N.T.), 9/28/16, at 14-45.)2
Tollinger testified that his mother has owned property adjacent to
Applicant’s property since 1961 and that he grew up there. He stated that he has been
back to his mother’s property on a weekly basis from 1995 to 2015. He denied that
Applicant’s property had been used as a commercial business for storage of either farm
equipment or RVs during that time period. He noted that he and his father had used
the Property to store farm equipment but neither had ever paid any money for that
storage. He also testified as to his belief that allowing the storage of RVs on the
2
This testimony was not included in the reproduced record.
5
Property will diminish the value of his mother’s property. On cross-examination,
Tollinger acknowledged that he and his father had stored farm equipment on the
Property since the 1970s and that his father had done some maintenance work for the
prior owners of the Property and provided them with a butchered hog each year, most
likely in exchange for allowing him to store the farm equipment. Tollinger also
admitted that he would occasionally see one or two RVs stored towards the front of the
Property. (N.T., 9/28/16, at 47-77.)
Keith Hunnings, the Borough’s zoning officer, also testified at this
hearing. He stated that he reviewed Applicant’s original application, was aware of the
amended application seeking expansion of a nonconforming use, and personally
viewed the Property on multiple occasions. On one of these occasions, he observed
four RVs parked to the rear of the Property. He confirmed Lauer’s testimony regarding
previous conversations between the two and his belief that there was an existing,
nonconforming storage use at the Property. After conferring with the Borough’s
solicitor, Hunnings indicated that he issued Lauer a certificate of nonconformity. He
also noted that the storage use was permitted in an R-A Zone by special exception.
(N.T., 9/28/16, at 101-06.)
At a third and final Board hearing on October 26, 2016, the Board voted
unanimously to grant Applicant’s application with several conditions, including
limiting the storage to RVs and other similar units, limiting the storage area to 10,000
square feet, adding screening on three sides with a minimum height of 6 feet, limiting
the number of RVs to 10 at any one time, prohibiting customers from picking up RVs
at the Property, and prohibiting the washing of RVs on the Property. (N.T., 10/26/16,
at 3-5.)
The Board subsequently issued a written decision dated November 10,
2016. The Board accepted the testimony of Lauer and Hobbs as credible. The Board
6
also accepted the testimony of Hunnings, the Borough’s zoning officer, as credible.
Based upon this credible testimony, the Board found that the Property was used for the
storage of farm equipment and RVs prior to April 13, 1995, the effective date of the
Ordinance. The Board also found that the storage was continuous and was never
abandoned by any of the owners of the Property. Further, the Board found that the
storage of farm equipment and RVs was sufficiently similar to justify Applicant’s
expansion of this prior use to permit the storage of RVs as requested.3 (Board’s op. at
1-3.)
The Board noted that, with the attached conditions, Applicant has met the
general and specific standards for a special exception under sections 504(f) and 624 of
the Ordinance. More specifically, regarding section 504(f), the Board found that: the
proposed use was in harmony with the orderly and appropriate development of the R-
A Zone; adequate water supply, sewage disposal, storm drainage, and fire and police
protection are or can be provided; the use will not discourage development of adjacent
land and buildings nor impair their value; and the use will not create congestion or
cause commercial or industrial traffic on residential streets. (Board’s op. at 5.)
Regarding section 624, the Board found that: the proposed use was
confined to a lot on which it was located on April 13, 1995, the effective date of the
Ordinance; the total of all expansion will not exceed 35% of the lot area of the Property;
there was no issue regarding access to streets, off-street parking, or off-street loading;
the appearance will be harmonious with surrounding properties and include
landscaping and screening requirements; and expansion shall not create new, or further
increase existing, nonconformities. (Board’s op. at 6.)
3
In later discussion regarding the sufficient similarity between the prior use and the proposed
use, the Board explained that “both involve storage of accessory-type vehicles.” (Board op. at 9.)
7
Appellants subsequently filed a land use appeal with the trial court. The
trial court did not take any additional evidence. By opinion and order dated June 12,
2017, the trial court affirmed the Board’s decision and dismissed Appellants’ appeal.
The trial court emphasized that the Board rejected Appellants’ testimony regarding the
lack of any storage use, or at least a continuous storage use at the Property, as not
credible. The trial court noted that the Board accepted the testimony on behalf of
Applicant relating to the storage of farm equipment and RVs at the Property prior to
the effective date of the Ordinance to be credible and dispositive. The trial court also
noted that the Borough’s zoning officer credibly testified as to his belief that storage
was a pre-existing use at the Property.
Discussion
On appeal to this Court,4 Appellants argue that the Board erred as a matter
of law and abused its discretion in granting Applicant’s request for a special exception.
More specifically, Appellants argue that the Board erred and/or abused its discretion
in: concluding that there was a pre-existing and continuous, nonconforming use at the
Property; concluding that the prior, non-commercial storage of farm equipment was
sufficiently similar to the commercial storage of RVs; failing to make a finding or
determination that such an expansion was required out of business necessity; and
concluding that Applicant met its burden of establishing all general standards required
to obtain a special exception under sections 504(f) and 624 of the Ordinance.
4
Where, as here, the trial court does not take additional evidence, our scope of review is
limited to determining whether the Board committed an error of law or “a manifest abuse of
discretion.” Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa.
1983). A zoning board abuses its discretion “only if its findings are not supported by substantial
evidence.” Id. at 640. Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id.8
Pre-Existing, Nonconforming Use
Appellants first argue that the Board erred as a matter of law and abused
its discretion in concluding that there was a pre-existing and continuous,
nonconforming use at the Property. We disagree.
Initially we note that “[a] special exception is not an exception to a zoning
restriction, but a use that is expressly permitted.” Broussard v. Zoning Board of
Adjustment of the City of Pittsburgh, 831 A.2d 764, 769 (Pa. Cmwlth. 2003), aff’d, 907
A.2d 494 (Pa. 2006). Recently, this Court reiterated that a “requestor has the burden
of persuading the ZHB that the proposed use satisfies the objective requirements of the
ordinance.” Dunbar v. Zoning Hearing Board, 144 A.3d 219, 224 (Pa. Cmwlth. 2016)
(citing Bray v. Zoning Board of Adjustment, 410 A.2d 909, 910 (Pa. Cmwlth. 1980)).
Once a requestor proves compliance with an ordinance, the burden shifts to the objector
to prove that the special exception use would have an adverse effect on the general
public that is not normally associated with the proposed use. Id.As a threshold matter in cases involving expansion of a nonconforming
use, an applicant must establish that a nonconforming use existed at the property where
expansion is sought and that such use existed at the time of enactment of the zoning
ordinance. Heyman v. Zoning Hearing Board of Abington Township, 601 A.2d 414,
416 (Pa. Cmwlth. 1991) (stating that a prior nonconforming use is established where
“objective evidence [shows] that the land was devoted to such use at the time the
ordinance was enacted.”). Further, “[t]he burden of proving the extent or existence of
a nonconforming use rests on the property owner who would claim the benefit of the
rights accorded property with that status.” Id.Section 203 of the Ordinance defines “NONCONFORMITY” as:
A use, structure, lot, or dimension in conflict with the
regulations of this Ordinance, (1) existing on the effective
date of this Ordinance, or (2) existing at any subsequent
9
amendment of this Ordinance, or (3) created by variance.
Specifically, the following types of nonconformities are
distinguished:
...
NONCONFORMING USE - A use, whether of land or of a
structure, which does not comply with the applicable use
provisions in this Ordinance or any amendment heretofore or
hereafter enacted, where such use was lawfully in existence
prior to the enactment of this Ordinance or amendment, or
prior to the application of this Ordinance or amendment to
its location by reason of annexation.
(R.R. at 8a.) Section 419 of the Ordinance further provides that “the lawful use of land
or buildings existing at the date of the adoption of this Ordinance may be continued,
although such use of land or building does not conform to the use regulations specified
by this Ordinance for the zone in which such land or building is located.” (R.R. at
22a.)
In this case, there is no dispute that the Property had been used for storage
prior to the enactment of the Ordinance. Indeed, Appellants concede in their brief that
testimony before the Board established that “there was some storage of farm equipment
predating the enactment of the . . . Ordinance.” (Appellants’ Brief at 12.) This
testimony included Applicant’s tenant, Hobbs, whose parents previously owned the
Property and raised him there, and who confirmed that farm equipment belonging to
friends and neighbors had been stored on the Property from the time he was a young
child in the “early 80s.” (R.R. at 61a.) Hobbs also stated that RVs had been stored at
the Property prior to 2005, but no more than two at any time. (R.R. at 45a.) The Board
accepted Hobbs testimony as credible. Even Appellant William Tollinger, one of the
neighboring landowners who objected to Applicant’s proposed expansion,
acknowledged that he and his father had stored farm equipment on the Property since
the 1970s. (N.T., 9/28/16, at 69.) Another neighboring landowner, Chris Mercy,
testified that from 2000 to 2015, he saw farm equipment and one or two RVs being
10
stored on the Property. (N.T., 9/28/16, at 15, 31.) Further, the Board accepted the
testimony of Hunnings, the Borough’s zoning officer, that there was an existing,
nonconforming storage use at the Property and that he, after discussion with and review
by the Borough’s solicitor, issued Lauer a certificate of nonconformity. (N.T., 9/28/16,
at 103-04.)
While Appellants argue that such storage was a permitted use by right in
an R-A Zone, Appellants’ argument is misplaced. As Appellants note, section 303(b)
of the Ordinance includes “Agriculture, Except Livestock, e.g., Crops, Gardening,
Orchards, etc.” as a permitted use by right. (R.R. at 11a.) However, even though such
a use necessitates farming equipment, the fact remains that the Ordinance does not
specify the storage of farm equipment as a permitted use. Thus, the Board did not err
as a matter of law or abuse its discretion in concluding that there was a pre-existing
and continuous, nonconforming storage use at the Property.
Sufficiently Similar Use
Next, Appellants argue that the Board erred as a matter of law and abused
its discretion in concluding that the prior, non-commercial storage of farm equipment
was sufficiently similar to the commercial storage of RVs. Again, we disagree.
In determining whether a proposed use continues a nonconforming use or
constitutes a change in use, a zoning hearing board must consider whether the proposed
use is “sufficiently similar” to the prior non-conforming use. 200 W. Montgomery Ave.
Ardmore, LLC v. Zoning Hearing Board, 985 A.2d 996, 999 (Pa. Cmwlth. 2009). As
this Court previously explained, “a proposed use need not be identical to the preexisting
use. As long as the proposed use is sufficiently similar to the use that existed at the
time of the enactment of the zoning ordinance, the proposed use may not be
characterized as a new or different use.” Foreman v. Union Township Zoning Hearing
11
Board, 787 A.2d 1099, 1103 (Pa. Cmwlth. 2001). In the present case, Appellants argue
that the commercial storage of RVs is not sufficiently similar to the non-commercial
storage of farm equipment. However, Appellants’ focus on the commercial/non-
commercial distinction ignores the underlying similarity between the uses, i.e., that
both uses involve equipment storage on the Property, including RVs. Indeed, the Board
found these uses sufficiently similar “in that both involve storage of accessory-type
vehicles,” Board op. at 9, and, as noted above, the uses need not be identical.
Moreover, we note that the RVs, similar to the farm equipment stored on the Property
in the past, were intended for off-site use. As noted above, the farm equipment stored
on the Property belonged to friends and neighbors of the prior owners of the Property
and the RVs belonged to another business owned by Lauer that rented the RVs to third
parties.
Business Necessity
Next, Appellants argue that the Board erred as a matter of law and abused
its discretion in failing to make a finding or determination that expansion of the alleged
nonconforming use was required out of business necessity.
We have previously held that whether a use proposed as an extension or
expansion of an existing nonconforming use is the same as the existing use, or is a use
accessory to the existing use, the proposed use must be shown to be “needed to provide
for . . . natural expansion and the accommodation of increased trade.” Harrisburg
Gardens, Inc. v. Susquehanna Township Zoning Hearing Board, 981 A.2d 405, 411
(Pa. Cmwlth. 2009) (emphasis added) (citing IMS America, Ltd. v. Zoning Hearing
Board of Borough of Ambler, 503 A.2d 1061, 1064 (Pa. Cmwlth. 1986)).
While the Board in the present case never made a specific determination
that the proposed use was needed for “natural expansion and the accommodation of
12
increased trade,” Harrisburg Gardens, Inc., the record, including the Board’s decision,
is replete with references reflective of the connection between Applicant’s desire to
expand the storage use at the Property and its intent to grow its business. For example,
the Board’s findings of fact state that Applicant wishes to store RVs from a related RV
rental business on the Property; that such storage is not permitted by right in the R-A
Zone and that Applicant seeks to expand an existing storage use on the Property as it
relates to a related business; and that Applicant would limit the storage to 10 RVs at
any one time. (Board’s Findings of Fact Nos. 3-5, 9.) Additionally, in his testimony
before the Board, Applicant’s owner, Lauer, testified that there would be no sale, rental,
fueling, washing, or maintenance of RVs at the Property; that he maintained several
display lots throughout the Borough; confirmed that no more than 10 RVs would be
stored on the Property at any one time; and confirmed that customers would not view
the RVs at the Property. (R.R. at 89a-100a.) Lauer emphasized that he simply needed
to store RVs on the Property, as his RV rental business currently owned 15 RVs. (R.R.
at 105a-07a.)
Thus, to the extent that the Board may have erred in failing to make a
finding or determination that expansion of the alleged nonconforming use was required
out of business necessity, such error was harmless and does not mandate a reversal of
the trial court’s affirmance in this case.
Special Exception Standards Under the Ordinance
Finally, Appellants argue that the Board erred as a matter of law and
abused its discretion in concluding that Applicant met its burden of establishing all
general and specific standards required to obtain a special exception under sections
504(f) and 624 of the Ordinance.
13
We have previously held that a zoning hearing board must grant or deny
requests for special exceptions pursuant to the express standards and criteria set forth
in the applicable zoning ordinance. Edgmont Township v. Springton Lake Montessori
School, 622 A.2d 418 (Pa. Cmwlth. 1993). We further explained in Edgmont Township
that an applicant seeking a special exception “is required to show at the time of the
hearing that it met the requirements of the ordinance.” Id. at 420. In other words, the
applicant must “come forward with evidence detailing how it was going to be in
compliance with the requirements necessary to obtain a special exception.” Id. at 419.
Section 504(f) of the Ordinance
Section 504(f) sets forth the general standards for a special exception,
providing as follows:
A special exception may be granted when the Zoning
Hearing Board finds from a preponderance of the evidence
produced at the hearing that:
1. The proposed use, including its nature,
intensity and location, is in harmony with
the orderly and appropriate development of
the zone;[5] and
5
Section 303(a) of the Ordinance describes the purpose of the R-A Zone as follows:
The purpose of the Residential-Agricultural Zone is to encourage
orderly development and the preservation of existing residential and
agricultural uses and complementary local commercial services while
providing public facilities necessary for the health, welfare, and general
convenience of the population; to preserve open space; to exclude any
activities not compatible with the Residential-Agricultural
environment; to avoid undue congestion on the roads; and to otherwise
create conditions conducive to carrying out the purposes of this
Ordinance.
(R.R. at 11a.)
14
2. That adequate water supply, sewage
disposal, storm drainage and fire and police
protection are or can be provided for the use;
and
3. That the use of adjacent land and buildings
will not be discouraged and the value of
adjacent land and buildings will not be
impaired by the location, nature and height
of buildings, walls and fences; and
4. That the use will have proper location with
respect to existing or future streets giving
access to it, and will not create traffic
congestion or cause industrial or
commercial traffic to use residential streets;
and
5. That the specific standards set forth for each
particular use for which a special exception
may be granted have been met.
The applicant for a special exception shall have the burden
of proof, which shall include the burden of going forward
with the evidence and the burden of persuasion on all
questions of fact which are to be determined by the Zoning
Hearing Board.
(R.R. at 26a.)
In this case, the Board made a specific finding regarding each element of
section 504(f) of the Ordinance based upon the credible testimony of Lauer, Hobbs,
and Hunnings as well as other evidence submitted by Applicant, including drinking
water reports and numerous aerial and land-based photographs. Specifically, the Board
found as follows:
a. The proposed use, including its nature, intensity, location,
is in harmony with orderly and appropriate development
of zone. Given the conditions that have been imposed by
the Board, there will be no impact on this standard.
15
b. Adequate water supply, sewage disposal, storm drainage,
fire and police protection are or can be provided for the
use. There will be no sales or customers coming to, or
washing of units on, the property, so there will be no
impact on water or sewage. Fire and police protection are
not at issue. Applicant will have to meet any Borough or
state requirements for storm drainage.
c. The use of adjacent land and buildings will not be
discouraged nor their value impaired by the location,
nature, and height of buildings, walls, and fences. No
new buildings, walls, or fences are proposed, so this
requirement is not relevant to this application. However,
the Board has imposed a screening requirement of
vegetative matter.
d. The use will have a proper location with respect to
existing or future streets, and will not create congestion
or cause commercial or industrial traffic to use residential
streets. The property and driveway front on Church
Street, which is the main east-west street through the
Borough, and with the limit of no more than ten (10) units
on the property at any time, the impact on traffic will be
minimal.
e. The specific standards in Section 624 of the Ordinance
are addressed below.
(Board’s Finding of Fact No. 31.) Based upon this finding, we cannot conclude that
the Board erred or abused its discretion in holding that Applicant met its burden under
section 504(f) of the Ordinance.
Section 624 of the Ordinance
Section 624 sets forth specific standards regarding expansion of a
nonconformity, providing as follows:
In any zone and subject to the requirements of the zone in
which located except as herein modified and provided:
16
a) Expansion of the nonconformity shall be confined to the
lot on which it is located on the effective date of this
Ordinance or any amendment thereto creating the
nonconformity.
b) The total of all such expansions of use shall not exceed an
additional thirty-five percent (35%) of the area of those
buildings or structures devoted to the nonconforming use
as they existed on the date on which such buildings or
structures first became nonconformities.
c) Provision for access drives, off-street parking and off-
street loading shall be consistent with standards required
by this Ordinance.
d) Provision for yards, building height and building area
shall be consistent with the standards required for
permitted uses in the zone in which the nonconformity in
question is located.
e) Appearance should be harmonious with surrounding
properties. This feature includes but is not limited to:
landscaping, enclosure of principal and accessory uses,
height control, sign control, and maintenance in good
condition of all improvements and open spaces.
f) Buffers and screens shall be provided as necessary to
adequately protect neighboring properties. This includes
but is not limited to fences, walls, plantings and open
spaces.
g) The expansion shall not create new dimensional
nonconformities or further increase existing dimensional
nonconformities.
(R.R. at 27a.)
Again, the Board made a specific finding regarding each element of
section 624 of the Ordinance based upon the credible testimony and evidence before it.
Specifically, the Board found as follows:
17
a. The proposed use is confined to lot on which it was
located at the effective date of Ordinance, April 13, 1995.
b. The total of all expansions shall not exceed an additional
35% of the area of buildings or structures devoted to the
use at the date they became nonconformities. “Structure”
is defined in the Ordinance as any man-made object
having a stationary location on land, but excluding
driveways, walkways, and parking areas. (Emphasis
supplied.) As this application is strictly about parking and
storage, this standard does not apply to this application.
c. Access drives, off-street parking, and off-street loading
shall comply with [the] Ordinance. There was no
testimony or evidence that this is an issue. Applicant has
adequate access to Church Street, and Applicant did not
seek any accommodation from the Board for this
condition. To the extent this needs to be addressed, it will
have to be addressed between Applicant and the Borough.
d. Yards, building height, and building area shall be
consistent with standards for the zone in the Ordinance.
Applicant seeks to use 10,000 square feet of its 116,429.6
square foot property, which is 8.6% of the property, and
no new buildings are proposed. There was no testimony
or evidence that the total of all buildings, including the
proposed use, exceed the 35% of the lot area permitted in
the R-A Zone. The Board notes that 35% of the area of
this property would be over 40,000 square feet, and there
is no indication that the buildings and other coverage
come near that amount. Thus, this standard is met.
e. The appearance should be harmonious with surrounding
properties, including: landscaping; enclosure of principal
and accessory uses; height, sign control; maintenance of
improvements and open spaces. The only ones of these
standards at issue are landscaping and open spaces. With
the screening condition placed by the Board on the
approval, those issues are resolved.
f. Buffers and screens, including fences, walls, plantings,
open spaces, shall be provided as necessary to adequately
protect neighboring properties. Again, the screening
18
condition placed by the Board on the approval resolves
this issue.
g. Expansion shall not create new, or further increase
existing, nonconformities. No new nonconformities are
created by the proposed use, which is similar in nature to
the prior use, and does not create new nonconformities.
The nonconformity is one of use, not dimension.
(Board’s Finding of Fact No. 32.) Based upon this finding, we cannot conclude that
the Board erred or abused its discretion in holding that Applicant met its burden under
section 624 of the Ordinance.
Accordingly, the trial court’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Simpson concurs in result only.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Walter and Dustine Mercy, and :
William Tollinger, as Attorney-in-Fact :
for Betty Tollinger, :
Appellants :
: No. 900 C.D. 2017
v. :
:
Zoning Hearing Board of Cross :
Roads Borough, and :
Lauer Bros. Properties, LLC :
ORDER
AND NOW, this 19th day of June, 2018, the order of the Court of
Common Pleas of York County, dated June 12, 2017, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge