Center Street Luxury Apartments, LLC v. Town of Bloomsburg ZHB and Town of Bloomsburg ~ Appeal of: Town of Bloomsburg ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Center Street Luxury Apartments, LLC :
:
v. :
:
Town of Bloomsburg Zoning Hearing :
Board and Town of Bloomsburg :
: No. 908 C.D. 2021
Appeal of: Town of Bloomsburg : Submitted: September 23, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 15, 2022
The Town of Bloomsburg (Bloomsburg) appeals from a June 17, 2021
order of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia
County Branch (trial court), in which the trial court reversed the denial of a use
variance requested by Center Street Luxury Apartments, LLC (Applicant). The
Bloomsburg Zoning Hearing Board (Board) denied the variance on the basis that,
inter alia, Applicant’s asserted hardship was not unique to Applicant’s property, but
rather, was common to the neighborhood in general. We agree with Bloomsburg
that the Board’s decision was supported by substantial evidence. Accordingly, upon
review, we reverse the trial court’s order.
I. Background
Applicant owns a lot with a three-story building at 240-246 Center
Street in Bloomsburg (Property). Applicant purchased the lot and constructed the
building in 2009. Under Bloomsburg’s zoning ordinance, the Property is in the
Commercial District. Reproduced Record (RR) at 16a-18a. The building has
commercial tenant space on the first floor and student housing on the second and
third floors. Applicant had a commercial tenant for about six years but had not had
a commercial tenant for about four years at the time of the hearing before the Board.
Id. at 24a-27a.
In the Commercial District, student housing is permitted only on the
second floor and above. RR at 19a & 102a. Applicant contended that it had been
unable to find a commercial tenant for the building’s first floor for four years, despite
exhaustive efforts to do so. Therefore, Applicant sought a use variance to convert
the first floor of the building from commercial space to student housing.
The Board held a hearing on the variance application, at which
Applicant’s managing member, Matthew Zoppetti (Zoppetti), testified. See RR at
22a. Zoppetti stated that other properties in the Commercial District also have first
floor commercial tenant space and have had difficulty finding tenants in recent years.
Id. at 28a-32a. Zoppetti posited that online and “big box” stores have made it
difficult for local businesses in the Commercial District to survive. Id. at 42a-43a &
45a-46a.
At the conclusion of the hearing, the Board voted unanimously to deny
the variance. RR at 65a. The Board’s chairman observed that because the hardship
asserted by Applicant was not unique to the Property, the proper relief was not a
variance, but a request for rezoning. Id. at 52a-54a. In its subsequent written
2
decision, the Board similarly found that Applicant failed to prove any hardship
unique to the Property and that, in fact, Applicant based its argument on a theme of
changing times that was applicable throughout the Commercial District. Applicant’s
Br., Appendix A (Bd. Dec.) at 2, Finding of Fact (FF) 17; & 3, Conclusion of Law
(CL) 8. Accordingly, the Board concluded “this issue is more appropriate for an
amendment to the [z]oning [o]rdinance” rather than a variance. Id. at 3, CL 9.
In addition, the Board determined that Applicant had failed to prove
there was no possibility that the Property could be developed in strict conformity
with the zoning ordinance. Bd. Dec. at 3-4, CL 10. The Board concluded that
Applicant’s difficulty in finding a commercial tenant for the past four years did not
mean that the difficulty would continue in the future. Id.
Applicant appealed to the trial court, which reversed the Board’s
decision and granted the variance. Applicant’s Br., Appendix B (Trial Court Dec.),
at 12. The trial court took no additional evidence and ostensibly made no additional
findings of fact. Id. at 3. However, the trial court characterized the Property as “a
commercial entity . . . surrounded by neighboring residential (student housing)
dwellings, many of which are located in the Commercial [] District, making the
commercial space undesirable and unmarketable for its intended purpose.” Id. at 6-
7. Further, the trial court described Zoppetti’s testimony as “credible and
unrebutted” and found that Applicant “tried every possible option for renting the
space within the permitted uses, special exception or conditional uses to no avail.”
Id. at 7. Contrary to the Board’s determination, the trial court concluded that
Applicant’s “inability . . . to find a tenant despite years of effort demonstrates a
3
hardship.”1 Id. at 8. Moreover, the trial court posited that “it can be inferred that no
commercial tenant is interested in a [p]roperty which is not situated on the main
commercial street[,] Main Street. As such, the physical circumstances of the
Property are the direct cause of the hardship.” Id. In addition, the trial court found
that Applicant easily found a commercial tenant when the building was first
constructed, “but due to a changing economic climate, in the years that followed
[Applicant] was unable to rent the space despite its best efforts to do so rendering
the bottom floor of the Property useless through no fault of [Applicant].” Id. at 9.
The trial court also pointed to Applicant’s “unrebutted testimony that there are
several other student housing dwellings in the immediate area of the Property, and
there are other properties in the Commercial [] District that have use variances for
first floor student housing.” Id. The trial court opined that Applicant met all
necessary criteria, “the Property was eligible for [a] variance[,] and the . . . Board
committed an abuse of discretion in denying the variance.” Id. at 10. Ultimately,
the trial court concluded that Applicant “offered sufficient evidence” to meet the
criteria for a variance, and that the Board’s contrary conclusion “was not supported
by substantial evidence, and was as such an abuse of discretion and must be
reversed.” Id. at 11.
Bloomsburg’s appeal to this Court followed.
II. Issues on Appeal
On appeal, Bloomsburg raises four issues, which we paraphrase as
follows. First, Bloomsburg asserts that the trial court erred by finding the Property
1
As set forth above, the Board found as a fact that Applicant based its hardship argument
on changing times. Bd. Dec. at 2, FF 17. The Board also rejected Applicant’s assertion of hardship
arising from inability to find a commercial tenant. Id. at 3-4, CL 10.
4
is subject to a unique hardship, where the record shows the asserted hardship is
common to a large portion of the properties in the Commercial District. Applicant’s
Br. at ix. Second, Bloomsburg contends that the trial court erred by finding the
Property has unique physical circumstances or conditions that inflict an unnecessary
hardship. Id. Third, Bloomsburg argues that the trial court erred by inferring that
the Property cannot be developed in conformity with the zoning ordinance. Id.
Finally, Bloomsburg maintains that the trial court erred by finding Applicant’s
asserted hardship was not self-imposed. Id.
III. Discussion
A. Standard of Review
Where the trial court did not take any additional evidence, appellate
review of the decision of a zoning hearing board is limited to determining whether
the board abused its discretion or committed legal error. Twp. of Exeter v. Zoning
Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). An abuse of discretion
occurs when a zoning board’s findings are not supported by substantial evidence in
the record. Id. Substantial evidence is relevant evidence that a reasonable mind
would accept as adequate to support the conclusion reached. Id. The reviewing
court may not substitute its interpretation of the evidence for that of the zoning board,
which has “expertise in and knowledge of local conditions.” Tidd v. Lower Saucon
Twp. Zoning Hearing Bd., 118 A.3d 1, 9, 13 (Pa. Cmwlth. 2015) (citations omitted).
Even if the reviewing court might come to a different conclusion, if the zoning
board’s determination is supported by substantial evidence, it may not be disturbed.
SPC Co. v. Zoning Bd. of Adjustment of the City of Phila., 773 A.2d 209, 214 (Pa.
Cmwlth. 2001). The zoning board’s function is to weigh the evidence and it is the
5
sole judge of the credibility of witnesses and the weight afforded their testimony.
Id. Further, the appellate court must view the evidence in a light most favorable to
the prevailing party, which must be given the benefit of all reasonable inferences
arising from the evidence. Id. Finally, because we review the Board’s decision, we
do not address any argument related to the trial court’s decision. Pham v. Upper
Merion Twp. Zoning Hearing Bd., 113 A.3d 879, 887 (Pa. Cmwlth. 2015).
B. Applicable Zoning Ordinance Provisions
Section 27-507(2) of Bloomsburg’s zoning ordinance permits the
following uses in the Commercial District:
A. Dwelling units on the second floor and above a mixed-
use structure.
B. Community living facilities.
C. Retail stores, personal service shops and game rooms.
D. Banks, offices and studios.
E. Specialty shops for custom work and articles to be sold
at retail on the premises, such as baking, confectionery,
dressmaking, printing and tailoring.
F. Restaurants, cafes, tearooms and taverns.
G. Movie and performing arts theaters.
H. Public and semipublic facilities including parks,
playgrounds, commercial and trade schools, clinics,
churches and similar places of worship, libraries, public
utility buildings.
I. Student housing on the second floor and above a mixed-
use structure.
J. Accessory uses on the same lot with the customarily
incidental to any of the above permitted uses.
K. Professional massage establishment.
6
BLOOMSBURG, PA., MUN. CODE § 27-507(2) (2018).2
Section 910.2(a) of the Pennsylvania Municipalities Planning Code
(“MPC”),3 governing variances, provides:
(a) The [B]oard shall hear requests for variances where it
is alleged that the provisions of the zoning ordinance
inflict unnecessary hardship upon the applicant. The
[B]oard may by rule prescribe the form of application and
may require preliminary application to the zoning officer.
The [B]oard may grant a variance, provided that all of the
following findings are made where relevant in a given
case:
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar
to the particular property and that the unnecessary
hardship is due to such conditions and not the
circumstances or conditions generally created by
the provisions of the zoning ordinance in the
neighborhood or district in which the property is
located.
(2) That because of such physical circumstances or
conditions, there is no possibility that the property
can be developed in strict conformity with the
provisions of the zoning ordinance and that the
authorization of a variance is therefore necessary to
enable the reasonable use of the property.
(3) That such unnecessary hardship has not been
created by the appellant.
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
permanently impair the appropriate use or
2
Paragraph K added by Ord. No. 1011, July 13, 2020.
3
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
7
development of adjacent property, nor be
detrimental to the public welfare.
(5) That the variance, if authorized, will represent
the minimum variance that will afford relief and
will represent the least modification possible of the
regulation in issue.
53 P.S. § 10910.2(a).4
C. Hardship Unique to the Property
As set forth above, the first criterion for a variance under the MPC
requires an applicant to demonstrate “physical conditions peculiar to the particular
property and that the unnecessary hardship is due to such conditions and not the
circumstances or conditions generally created by the provisions of the zoning
ordinance in the neighborhood or district . . . .” 53 P.S. § 10910.2(a)(1). This
requirement is consistent with our Supreme Court’s precedent predating the
enactment of the MPC. See Appeal of Michener, 115 A.2d 367, 371-72 (Pa. 1955).
In Michener, the Supreme Court reasoned:
If a . . . [b]oard were to be allowed to grant variances to
individual properties because of changes in the district
4
Section 910.2 was added by the Act of December 21, 1988, P.L. 1329.
We note that Bloomsburg’s zoning ordinance differs from the MPC’s variance provision,
in that the first criterion for variance relief under the ordinance is “[t]hat there are unique physical
circumstances or conditions including irregularity, narrowness or shallowness of lot size or shape
or exceptional topographical or other physical conditions generally created by the provisions of
this Chapter in the neighborhood or district in which the property is located.” BLOOMSBURG, PA.,
MUN. CODE § 27-1003(C). To the extent that the zoning ordinance is inconsistent with the
requirements of the MPC, the statutory provision controls. See Atl. Richfield Co. v. Della Vecchia,
450 A.2d 792, 794 (Pa. Cmwlth. 1982) (stating that “the terms of the MPC take precedence over
and invalidate, to the extent of their inconsistency, all local zoning enactments”) (additional
citation and quotation marks omitted); Bd. of Supervisors v. Moland Dev. Co., 339 A.2d 141, 143-
44 (Pa. Cmwlth. 1975) (explaining that ordinances regulating zoning, including variance
provisions, must comply with all statutory safeguards provided in the MPC). Neither party argues
otherwise.
8
which might perhaps call for a complete reclassification,
it would, by such a piecemeal process, be virtually
enacting zoning legislation instead of merely performing
its function of administering the zoning law prescribed by
the governing body of the municipality . . . . [E]ven if the
applicant[] [was] justified in [its] contention that the
neighborhood had changed somewhat . . . , that fact would
not, for the reason stated, justify the allowance of a
variance by the [b]oard . . . but only, at best, a call upon
the [municipality] to re-zone the district.
Id. at 371-72; see also Hill Dist. Project Area Comm., Inc. v. Zoning Bd. of
Adjustment, 638 A.2d 278, 281 (Pa. Cmwlth. 1994) (explaining that a hardship
generally applicable in the area must be remedied by revision of the zoning
ordinance, not by a variance).
Here, the Board determined that Applicant failed to demonstrate a
hardship to the Property that differed from conditions in the neighborhood generally.
That determination was supported by substantial evidence, as discussed above. See
RR at 28a-32a & 42a-43a.
Bloomsburg asserts that this case is closely analogous to this Court’s
recent decision in Johnston v. East Greenville Borough Zoning Hearing Board (Pa.
Cmwlth., No. 376 C.D. 2020, filed Mar. 18, 2021).5 We agree.
In Johnston, the applicant purchased a building located in a zoning
district that required commercial use on the first floor and allowed apartment rentals
on upper floors. Id., slip op. at 2. The applicant had commercial tenants for several
years but then sought a variance to convert the first floor to an apartment after she
was unable to find a commercial tenant for about two years. Id., slip op. at 2-3. She
argued that local economic conditions made finding commercial tenants difficult.
5
We cite this unreported decision as persuasive authority pursuant to Section 414(a) of this
Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
9
Id., slip op. at 3. Moreover, the property was across the street from one residential
zone and only three to four parcels away from another and was residential in
appearance. Id. The Borough Council’s vice president and the Borough Planning
Commission both recommended granting the variance. Id., slip op. at 4.
Nonetheless, the zoning hearing board denied the variance, finding that the
applicant’s asserted hardship was not specific to her property, but was generally
created by the zoning ordinance and impacted all of the properties in the commercial
zoning district. Id., slip op. at 5. The zoning hearing board found as a fact that the
applicant’s property was in a neighborhood with “a typical downtown mix of single
and multiple family residential buildings with commercial storefronts” and therefore
was “not unique in this regard but similar to many others in the area.” Id., slip op.
at 11 (additional quotation marks omitted). Moreover, difficulty in finding
commercial tenants was a problem affecting the entire commercial zoning district,
not only the applicant’s property. Id.On appeal, this Court rejected the applicant’s argument that the zoning
hearing board’s decision lacked substantial evidence. Johnston, slip op. at 16 (citing
record evidence that a cluster of properties, including the applicant’s property, were
all zoned for ground floor commercial use and upper floor apartments and all
suffered from the same problem of low commercial tenant interest). Although we
recognized that the changing character of a neighborhood may be relevant to the
question of hardship, “the zoning board’s knowledge of local conditions is entitled
to significant deference on appeal.” Id. “Where changing circumstances in the area
as a whole suggest that rezoning by the local legislative body is warranted, the local
zoning board exceeds its authority by granting individual variances.” Id. (citing
Michener and Hill District Project) (additional citation omitted).
10
We find our reasoning in Johnston persuasive here. The Property is
located in the Commercial District, and owners of other commercial properties are
also struggling to find commercial tenants for their ground floor spaces. RR at 28a-
32a; see also id. at 25a & 36a (Zoppetti’s testimony that there are many vacancies
in properties on the main street of the Commercial District). Indeed, the premise of
Applicant’s argument is that big box stores and online businesses such as Amazon
have made it difficult for small local businesses to compete, id. at 42a-43a & 45a-
46a – a premise which, by its very nature, suggests that the Commercial District as
a whole, not only the Property, is suffering from the same difficulty. Thus,
Applicant’s own pleading and evidence support the Board’s finding that the area
generally, not just the Property, suffers from problems procuring commercial
tenants. Moreover, that finding of the Board, which has knowledge and expertise
concerning the local area, is entitled to deference from this Court. Johnston, slip op.
at 16; see also Tidd, 118 A.3d at 9 & 13. Accordingly, this case squarely presents a
situation requiring a request for zoning change, not a variance, as the proper remedy.
Because we agree with Bloomsburg that the Board’s decision was supported by
substantial evidence, we conclude that the trial court erred in reversing the Board.
Further, the Board did not err in concluding that Applicant failed to
demonstrate any unique physical characteristics creating an unnecessary hardship.
Although Zoppetti testified that the building on the Property has a narrow frontage
along Center Street and is longer in length along an alley, id. at 25a, he did not
explain why narrow frontage or long exposure along an alley was either a hardship
or unique to the Property as distinct from other properties in the vicinity.
11
For all of these reasons, we find no error in the Board’s decision to deny
Applicant’s request for a variance.6
IV. Conclusion
Based on the foregoing discussion, the order of the trial court is
reversed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
6
In light of our conclusion, we need not reach Bloomsburg’s additional arguments.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Center Street Luxury Apartments, LLC :
:
v. :
:
Town of Bloomsburg Zoning Hearing :
Board and Town of Bloomsburg :
: No. 908 C.D. 2021
Appeal of: Town of Bloomsburg :
ORDER
AND NOW, this 15th day of December, 2022, the June 17, 2021 order
of the Court of Common Pleas of the Twenty-Sixth Judicial District, Columbia
County Branch, is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge