Tinicum 15 Industrial Highway, L.P. v. Tinicum Twp. ZHB v. 500 Wanamaker Ave. Partners, LLC ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tinicum 15 Industrial Highway, L.P., :
Appellant :
:
v. : No. 32 C.D. 2019
: ARGUED: November 14, 2019
Tinicum Township Zoning Hearing :
Board :
:
v. :
:
500 Wanamaker Avenue Partners, :
LLC :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 13, 2020
Appellant Tinicum 15 Industrial Highway, L.P. (Industrial) has appealed the
Court of Common Pleas of Delaware County’s (Trial Court) December 19, 2018
amended order,1 which denied Industrial’s statutory appeal of Appellee Tinicum
Township Zoning Hearing Board’s (Zoning Board) May 17, 2018 decision. Through
that decision, the Zoning Board granted Appellee 500 Wanamaker Avenue Partners,
LLC’s (Wanamaker) application for zoning relief pertaining to a property in
Tinicum Township (Township). Upon review, we reverse.
Facts and Procedural History
Wanamaker is the equitable owner of a 2.47-acre property (Property), one
zoned SU-1 (i.e., “special use”) and located at 500 Wanamaker Avenue in the
1
This order was docketed on December 20, 2018.
Township. Board’s Findings of Fact (F.F.), ¶¶1, 3. The Property, which is close to
I-95, is bounded by Industrial Highway to the south and Wanamaker Avenue to the
east. Wanamaker wishes to demolish the existing church and school structures on
the Property and, in their place, erect a roughly 5,600-square-foot Wawa
convenience store, as well as 9 gas pumps (allowing for the simultaneous fueling of
18 vehicles), 8 Tesla electric vehicle charging stations, 2 air pumps, and 65 parking
spaces. Id., ¶¶12-13. In furtherance of this desire, Wanamaker filed an application
with the Zoning Board. Therein, Wanamaker requested that the Zoning Board
recommend to the Township Board of Commissioners (Board of Commissioners)
that this convenience store/gas station development plan be deemed an authorized
use of the Property. Id., ¶5.2 In addition, Wanamaker sought the following relief:
2
The Township Zoning Ordinance (Zoning Ordinance) tasked Wanamaker with obtaining
such a recommendation because of how the Property is zoned:
In SU-1 Special Use Districts, the following regulations
shall apply:
A. A plan or plans shall be submitted to the [Board
of] Commissioners and the Zoning . . . Board. The Zoning .
. . Board shall review said plans and make recommendations
to the [Board of] Commissioners. However, approval of said
plans shall be made by the [Board of] Commissioners.
....
B. Use regulations. A building may be erected or
used, and a lot may be used or occupied, for any of the
following purposes and no other, provided such structure or
use is in accordance with the above plan:
....
(6) Such other uses as shall be determined by
the Board of Commissioners after hearing, upon
giving two weeks’ public notice of the time and place
of the hearing and of the proposed use.
Zoning Ordinance § 395-19.
2
a. A determination that the existing lot area is presently
non-conforming as to the minimum 4 acre lot area
requirement per [Zoning Ordinance] Section 61-5.1.C(1);
b. A [dimensional] variance from [Zoning Ordinance]
Section 61-5.1.C(2) to permit more than 66 2/3% of the lot
area to be [] occupied by buildings, parking and parking
access areas;
c. A [dimensional] variance from [Zoning Ordinance]
Section 61-5.1.C(3) to permit a building setback of less
than 100 feet from the street right-of-way;
d. A [dimensional] variance with respect to [Zoning
Ordinance] Section 61-2002 to permit a principal building
or part thereof to be located within the front yard;
e. A [dimensional] variance from [Zoning Ordinance]
Section 61-2003 to permit an accessory structure to be
located within the front yard and closer to the side street
than the principal building;
f. A [dimensional] variance from [Zoning Ordinance]
Section 61-2009.3 to permit less than the specific
requirements for landscaping;
g. A [dimensional] variance with respect to [Zoning
Ordinance] Section 61-2204.2 to permit handicapped
parking spaces less than 12’ in width, but still complying
with [the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101–12213] Standards for Accessible
Design;
h. A [dimensional] variance from applicable signage
provisions to permit such signage;
i. A determination that the proposed development is not
adjacent to a residential district, or in the alternative,
[dimensional] variance from residential screening
requirements of [Zoning Ordinance] Section 61-2008,
buffer yard requirements of [Zoning Ordinance] Section
6l-5.1.E, the sign regulations of [Zoning Ordinance]
Article VII and any other applicable provisions of the
Zoning Ordinance. . . .
j. Any such other relief necessary in order to permit the
proposed use.
3
Id., ¶6.
The Zoning Board then held a public hearing regarding Wanamaker’s requests
on April 19, 2018. Prior to anything of substance being presented, David S. Daniel,
Esquire, identified himself as representing Raj Singh, Industrial’s partner, and stated
that Industrial is the owner operator of a Sunoco gas station immediately to the west
of the Property. Notes of Testimony (N.T.), 4/19/18, at 4. Mr. Daniel requested party
status on behalf of Industrial. Id. Wanamaker objected, arguing Industrial would not
be harmed by approval of Wanamaker’s zoning application. Id. In addition,
Wanamaker claimed that Industrial’s real concern was the potential for additional
competition, which would not be a proper basis for challenging Wanamaker’s zoning
application. Id. at 5. Township Solicitor J. Adam Matlawski, Esquire, suggested that
the Zoning Board grant Industrial party status, “[b]ecause I guess it will be
determined [during the course of the hearing] whether or not they’re adversely
affected [by Wanamaker’s application], but they certainly will be affected.” Id. The
Zoning Board followed Mr. Matlawski’s advice and overruled Wanamaker’s
objection. Id. Curiously, however, the Board never returned during the hearing to
whether Industrial was adversely affected by Wanamaker’s application.
Herb MacCombie, the Township’s Zoning Officer, then testified that the
Property is an existing non-conforming parcel, in that it is smaller than the four acres
required by the Zoning Ordinance for lots zoned SU-1. Id. at 6-7.
Wanamaker subsequently presented evidence and witnesses in support of its
application. Joel Kepner, Wanamaker’s developer, testified that he had identified the
Property as a suitable location for the proposed development, because it was
“substantially vacant” and due to its proximity to a number of high-traffic arteries.
Id. at 19-20. Mr. Kepner stated he had negotiated the Property’s sale with then-owner
4
the Archdiocese of Philadelphia and had met with Mr. MacCombie, as well as the
Board of Commissioners, during the course of designing the proposed development.
Id. at 20-22. Mr. Kepner also described the project in detail and expressed his belief
that the Wawa convenience store/gas station would benefit the surrounding
community. Id. at 22-29.
Matthew Hammond, a licensed engineer with Traffic Planning and Design,
was then qualified by the Zoning Board as an expert in traffic engineering. Id. at 31-
33. He discussed a traffic impact study and a “scoping application” that his firm had
completed with regard to the Wawa project, as well as how vehicle access to and
from the Property would be facilitated. Id. at 33-47. Mr. Hammond stated that he
thought, as far as vehicular traffic, the proposed development would be an
appropriate use of the Property that would not adversely affect the surrounding area.
Id. at 47-49. Mr. Daniel briefly cross-examined Mr. Hammond regarding how the
vehicle traffic projections contained in the traffic impact study had been created and
about how the proposed access alterations would affect public safety in the vicinity.
Id. at 49-54.
Eric Britz, a licensed engineer with Bohler Engineering, was then qualified by
the Zoning Board as an expert in site design and land development. Id. at 60-62. Mr.
Britz began by stating that the Wawa development plan, if implemented, would
improve stormwater management both nearby and Township-wide. Id. at 63-64. He
then claimed that the Property is difficult to develop because it is long and narrow,
“but adequately fits the [proposed] use . . . if we do receive the relief we’re
seeking[.]” Id. at 65-66. Mr. Britz briefly described the particulars of the
development plan, touching upon how deliveries would be made to the Property, as
well as the landscaping and stormwater management plans. Id. at 66-68. Next, he
5
acknowledged the Zoning Ordinance’s setback requirement of 100 feet, noting that
the proposed development called for a 38.4-foot setback from Wanamaker Avenue
(up from the existing 34 feet) and a 198-foot setback from Industrial Highway (an
increase from the current 86 feet). Id. at 69-71. Mr. Britz then stated that the Wawa
convenience store would be 5,585 square feet in size, a marked decrease from the
existing structures’ footprint of 19,147 square feet, as well as that the development
plan called for a Zoning Ordinance-compliant number of parking spaces. Id. at 71-
73.
Next, Mr. Britz testified that the proposed use was similar to that of many
other properties in the area. Id. at 73-76. In addition, he averred that the Zoning
Ordinance’s parking space requirements made it impossible to conform to the
Zoning Ordinance’s impervious coverage limit of 66 2/3%, even if Wanamaker
decreased the number of spaces from the proposed 65 to the necessary minimum of
53. Id. at 76-79. Mr. Britz also said that the Property’s odd dimensions impeded
compliance with the impervious coverage limits. Id. at 79-80. Furthermore, he
maintained that many other, nearby properties have too much impervious coverage
as well and that, regardless, the proposed development would obey all applicable
stormwater management requirements. Id. He then returned to the Zoning
Ordinance’s setback dictates, addressing it in tandem with the Zoning Ordinance’s
requirement that the Property’s principal building be situated in its front yard. Id. at
80.3 Mr. Britz stated that, because of the Property’s dimensions and its frontage on
two thoroughfares, the 100-foot requirement leaves only a “very small portion” of
the Property upon which the Wawa convenience store could be situated. Id. at 80-
3
In context, “front yard” refers to the areas of the Property that front Wanamaker Avenue
and/or Industrial Highway. Thus, the Property has two front yards.
6
81. He also said that many other properties in the area have noncompliant primary
buildings and, thus, that the proposed convenience store would not be out-of-place
at that location. Id. at 81-82. Next, he maintained that a dimensional variance was
necessary to allow an accessory structure (i.e., the fuel pump canopy) to be located
in the Property’s front yard, as well as closer to the side street than the principal
building (i.e., the Wawa convenience store). This was so because the Property has
two front yards (i.e., one abutting Industrial Highway and the other adjacent to
Wanamaker Avenue) and, thus, there was no way to avoid putting the fuel pump
canopy in one of them. Id. at 82-83. Mr. Britz then said that Wanamaker needed
dimensional relief from the Zoning Ordinance’s requirement that 3 trees or shrubs
be planted for every 24 feet of property frontage, as well as that there be 8 feet of
landscaping buffer area at the Property’s edges. Id. at 83-86. He claimed this was
necessitated by the locations of some of the accessory structures and dedicated
rights-of-way. Id. Next, regarding the Zoning Ordinance-mandated 12-foot-wide
handicapped parking spaces, Mr. Britz asserted that the development plan actually
fulfills this requirement, through the combined widths of the proposed vehicle
“stalls” and “access aisles.” Id. at 86-87. Finally, Mr. Britz stated that the
development plan complies with the Zoning Ordinance’s parameters regarding
signage and agreed with Wanamaker’s attorney that the Property was “cut off
completely” from the nearby residentially zoned area by Wanamaker Avenue. Id. at
87-88. Mr. Britz expressed his belief that the development plan satisfied the
Municipalities Planning Code’s4 (MPC) variance test5 and, when asked by
4
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
5
The Zoning Ordinance does not contain a variance test of its own. Therefore, Section
910.2 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2, governs
the Zoning Board’s ability to grant variances in the Township.
7
Wanamaker’s attorney whether the desired variances were the minimum necessary
to afford relief, replied “Yes” without elaboration. Id. at 88-89.
Mr. Daniel then briefly cross-examined Mr. Britz. During this exchange, Mr.
Daniel specifically asked Mr. Britz whether Wanamaker could comply with the
Zoning Ordinance’s impervious coverage limits by either building the Wawa
convenience store, without any other accessory structures, or only constructing a
bank of fuel pumps along with a small cashier’s hut. Id. at 90-91. Mr. Britz
responded that he had not considered those possibilities and therefore could not
answer the question. Id. at 91.
Finally, Theodore Iobst, Wawa’s senior engineering manager for the Mid-
Atlantic region, testified about Wawa’s longstanding presence in Delaware County,
the consumer services Wawa would offer at the proposed Wanamaker Avenue
location, and Wawa’s hiring practices. Id. at 92-97. Mr. Iobst also went into detail
about the signage that would be present at this convenience store/gas station; in his
opinion, this signage would be far less obtrusive than that of other, nearby
businesses, including Industrial’s Sunoco station. Id. at 97-105. In addition, Mr.
Iobst expressed his belief that the Property’s dimensions created a hardship
impacting where signage could be placed, as well as that the proposed development
would not negatively affect the health, safety, or welfare of the community. Id. at
101-02, 105.6
The Zoning Board offered Mr. Daniel the opportunity to present evidence and
witnesses, which he declined. The floor was then opened to comments from the
general public. Id. at 108-09. In response to these comments, Mr. Hammond, the
6
Mr. Daniel also cross-examined Mr. Iobst, asking him a handful of questions about fuel
deliveries to Wawa and how Mr. Iobst obtained the dimensions of signage at Industrial’s Sunoco.
N.T., 4/19/18, at 105-06.
8
engineer from Traffic Planning and Design, provided additional details about how
the traffic impact study had been modelled and how the proposed Wawa
convenience store/gas station would affect nearby vehicular traffic. Id. at 109-18.
Mr. Hammond also stated that the developers of the Wanamaker Avenue project
“have been . . . [and] will continue to be in constant contact with [the Pennsylvania
Department of Transportation].” Id. at 124.
At the close of the evidentiary portion of the hearing, Mr. Daniel gave a brief
closing statement on behalf of Mr. Singh. Mr. Daniel maintained that Wanamaker
had not proven the existence of a hardship justifying the requested variance relief,
as the Property could be developed in a way that fully complies with the Zoning
Ordinance. Id. at 124. The Zoning Board then closed the hearing and informed those
present that it would issue its decision at the next scheduled public hearing on May
17, 2018. Id. at 125.
On May 17, 2018, the Zoning Board formally and unanimously granted
Wanamaker’s application in full, subject to certain conditions. Reproduced Record
(R.R.) at 3-6 (Zoning Board’s Decision); Zoning Board’s Conclusions of Law
(C.L.), ¶12. The Zoning Board concluded that each of Wanamaker’s witnesses were
credible and Wanamaker had shown it was entitled to its desired dimensional
variances, the requested determination regarding the Property’s nonconforming size,
and the sought-after determination that the proposed development is not adjacent to
a residential district. C.L., ¶¶10-12.7 In addition, the Zoning Board accepted
Wanamaker’s request that the Zoning Board recommend to the Board of
7
The Zoning Board also granted relief in the alternative regarding proximity to residential
development, concluding that Wanamaker was entitled to dimensional variance relief from the
Zoning Ordinance’s residential screening, buffer yard, and signage regulations. C.L., ¶12.
9
Commissioners that this convenience store/gas station development plan be deemed
an authorized use of the Property. Id., ¶12.
On June 13, 2018, Industrial appealed the Zoning Board’s decision to the Trial
Court. Industrial argued that the Zoning Board had erred in granting the dimensional
variances, as Wanamaker had failed to satisfy the MPC’s variance test and the
Zoning Board’s conclusion to the contrary was not supported by substantial
evidence. Land Use Appeal, ¶¶11-13.
On July 26, 2018, Wanamaker filed a “Petition to Quash Appeal, Or
Alternatively To Require Appellant To Post A Bond Pursuant to 53 P.S. § 11003-
A(d)[8]” (Petition to Quash). Wanamaker argued that Industrial’s appeal should be
quashed, or Industrial should be required to post a bond, “because [Industrial] lacks
standing, presented no opposition evidence, and has no realistic chance of proving
that the [Zoning] Board abused its discretion in making factual findings and applying
its own Zoning [Ordinance].” Petition to Quash, ¶¶24-31. Wanamaker maintained
that Industrial’s appeal was spurred by nothing more than “anti-competitive
interests[.]” Id., ¶24. Industrial responded in opposition to the Petition to Quash,
arguing in part that it had standing because it owned the Sunoco neighboring the
Property. Memorandum of Law in Opposition to Petition to Quash at 3-6. The Trial
Court denied the Petition to Quash on September 5, 2018, with prejudice, but did
not explain the reasoning behind this decision. Trial Ct. Order, 9/5/18, at 1.
The Trial Court then held oral argument on December 13, 2018, but took no
additional evidence. During that hearing, Wanamaker’s attorney again brought up
the issue of Industrial’s standing:
8
Section 1003-A(d) of the MPC, added by the Act of December 21, 1988, P.L 1329, 53
P.S. § 11003-A(d).
10
Your Honor[,] the elephant in the room here is that
[Industrial] is not only a neighboring property owner, but
they are a gas station with a mini-market. I would
respectfully suggest that is the interest that they are trying
to protect here.
....
I know that the [Petition] to [Q]uash based on standing
was denied, and I am not going to regurgitate. But the
argument is in there — and I know [Industrial had]
standing before the Zoning . . . Board as a neighboring
property owner. . . . It is just I think still relevant even
though we are not challenging standing before the Zoning
. . . Board on appeal that they have to show some kind of
harm. And there is nothing in the record to show again the
traffic or storm water is harming them. And essentially
what we have[,] You Honor, is an anti-competitive appeal
here that is causing [Wanamaker] a great deal of harm
every week and is benefitting [Industrial] while it goes on.
Trial Ct. Arg. Tr., 12/13/18, at 7, 15-16.
On December 19, 2018, the Trial Court denied Industrial’s appeal. Trial Ct.
Am. Order, 12/19/18, at 1. On January 9, 2019, Industrial appealed the Trial Court’s
ruling to our Court. That same day, the Trial Court ordered Industrial to file a
Concise Statement of Errors Complained of on Appeal within 21 days, which
Industrial satisfied on January 28, 2019. The Trial Court then issued an opinion on
March 27, 2019, in which it stated that the Zoning Board’s decision to grant
Wanamaker’s desired variances was supported by substantial evidence and
comported with the requirements of the MPC’s variance test. Trial Ct. Op. at 12-20.
In addition, the Trial Court appeared to contradict its earlier ruling regarding
Industrial’s standing, maintaining:
[Industrial] failed to present any evidence that it would
suffer legitimate harm. There is no dispute that [Industrial]
operates a Sunoco gasoline service station adjacent to [the
P]roperty. The Trial Court can take judicial notice that the
11
proposed Wawa gasoline service station will be a
competitor of the adjacent Sunoco gasoline service station.
Evidence as to competition or sufficient marketplace is not
relevant in land use cases. . . . Appeal of Farmland
Industries, Inc., 531 A.2d 79 (Pa. Cmwlth. 1987)[; Appeal
of Michael J. Stefonick from the Decision of the Zoning
Hearing Bd. of Upper Gwynedd Twp., 271 A.2d 707 (Pa.
Cmwlth. 1970)]. The Trial Court finds that [Industrial’s]
appeal is a thinly veiled and inappropriate attempt to use
the Zoning [Ordinance] as a vehicle to thwart a fellow
competitor from becoming its “next door neighbor.”
As to [Industrial’s] argument regarding traffic concerns,
the Record is devoid of any evidence showing such harm
that affects it. Rather, [Industrial] made conclusory
statements as to the exacerbation of traffic problems.
However, opponents to land use applications can’t rely on
conclusory claims to prove traffic hazards. . . . In re
Brickstone Realty Corp., 789 A.2d 333, 342 (Pa. Cmwlth.
2001)[; Nernberg v. City of Pittsburgh, 620 A.2d 692, 696
(Pa. Cmwlth. 1993)]. Contrary to [Industrial’s] argument .
. . Wanamaker provided sufficient evidence illustrating
that no such harm existed through the admission of the
testimony of [Mr. Hammond] and the traffic [impact]
study. As to [Industrial’s] argument to flooding issues on
the Property, the Record is devoid of any evidence to
support such harm. Furthermore . . . Wanamaker presented
uncontroverted evidence that it would be installing a
comprehensive stormwater management system on the
Property. The Trial Court finds [Industrial’s] argument as
to flooding to be disingenuous because its own property is
100% impervious.
Id. at 20-21.
12
Issues on Appeal9
Industrial reiterates its position that the Zoning Board erred in granting
Wanamaker’s desired variances, maintaining that Wanamaker failed to satisfy the
requirements of the MPC’s variance test. Industrial’s Am. Br. at 5-6. In particular,
Industrial argues that there is no record evidence that would support the Zoning
Board’s conclusion that these dimensional variances were the minimum relief
necessary to enable development of the Property. Id. at 7-12. Rather, Industrial
claims, Wanamaker simply wishes to develop the Property as it sees fit, which
cannot be done without variance relief, and consequently did not bother to entertain
other possibilities that would fit safely within the Zoning Ordinance’s dimensional
restrictions. Id.
In response, Wanamaker argues that the Zoning Board’s decision was
supported by substantial evidence and that Industrial ignores the fact that, when
contrasted with use variances, there is a more relaxed standard for granting
dimensional variances. Wanamaker’s Br. at 10-12. Wanamaker also claims that both
the record evidence and case law supports the Zoning Board’s conclusion that the
granted variances were the minimum necessary to enable development of the
Property. Id. at 12-21. Finally, Wanamaker again maintains that Industrial does not
have standing, as it presented no evidence that it would be harmed by the Zoning
9
Since the Trial Court took no additional evidence, our standard of review is restricted to
determining whether the Zoning Board committed an abuse of discretion or an error of law. Valley
View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639-40 (Pa. 1983). “We may
conclude that the [Zoning] Board abused its discretion only if its findings are not supported by
substantial evidence. . . . By ‘substantial evidence’ we mean such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. at 640 (citations omitted).
13
Board’s decision to grant the dimensional variances and, according to Wanamaker,
is simply trying to prevent a competitor from opening up next door. Id. at 21-24.10
Discussion
We first address the issue of whether Industrial established standing before
the Zoning Board.
A person who wishes to contest a zoning approval can
initiate an appeal or challenge if he is a “person
aggrieved.” Section 913.3 of the MPC[, added by the Act
of December 21, 1988, P.L. 1329, 53 P.S. § 10913.3].[ ] To
establish “aggrieved” status for purposes of standing, a
party must have a substantial, direct, and immediate
interest in the claim sought to be litigated. Laughman v.
Zoning Hearing Bd. of Newberry Twp., 964 A.2d 19 (Pa.
Cmwlth. 2009). In order to have a substantial interest,
there must be some discernible adverse [e]ffect to some
interest other than the abstract interest of all citizens in
having others comply with the law. Pilchesky v. Doherty,
941 A.2d 95 (Pa. Cmwlth. 2008). The interest must be
immediate and not a remote consequence of the judgment.
Id. A person has standing where he has suffered or will
suffer “injury in fact” and the interest he seeks to protect
is arguably within the zone of interest sought to be
protected or regulated by the statute or constitutional
guarantee in question. William Penn Parking Garage, Inc.
v. City of Pittsburgh, . . . 346 A.2d 269 ([Pa.] 1975).
In re Broad Mountain Development Co., LLC, 17 A.3d 434, 440 (Pa. Cmwlth. 2011).
“To be a ‘party aggrieved’ so as to have standing to appeal
a zoning board decision, a person must (1) have actively
participated as a party in the proceedings before the zoning
board; and (2) be directly and adversely affected by the
zoning board’s decision.” Lower Allen Citizens Action
Group, Inc. v. Lower Allen Township Zoning Hearing
[Bd.], . . . 500 A.2d 1253, 1257 ([Pa. Cmwlth.] 1985). An
owner of property within close proximity to the subject
10
The Zoning Board echoes Wanamaker’s argument that its decision to grant the
dimensional variances was neither an abuse of discretion nor an error of law. Township’s Br. at
11-14. However, the Zoning Board does not attack Industrial’s standing.
14
property is presumed to have been directly and adversely
affected by the zoning decision. Laughman v. Zoning
Hearing [Bd.] of Newberry [Twp.], 964 A.2d 19, 22 (Pa.
Cmwlth. 2009).
Walters v. Zoning Hearing Bd. of City of Easton, 125 A.3d 479, 482 (Pa. Cmwlth.
2015).
Industrial does not explicitly address the question of standing in its Amended
Brief, merely stating that “the breadth of [its] participation at the zoning hearing is
irrelevant” and citing in support of this claim Abe Oil and C&G Realty Company v.
Zoning Hearing Board of Richland Township, 649 A.2d 182 (Pa. Cmwlth. 1994).
See Industrial’s Am. Br. at 6-7.
Like this case, Abe Oil involved an existing gas station (Abe Oil) and a
neighboring, proposed one (Farm and Home), as well as Abe Oil’s appeal of
variances granted to Farm and Home. 649 A.2d at 183. On appeal to our Court, Farm
and Home argued that Abe Oil did not have standing to appeal the zoning hearing
board’s decision, because Abe Oil had not presented evidence showing it would be
detrimentally affected by the variance relief that was granted and, instead, was
simply attacking the decision as a “business competitor[.]” Id. at 184. We held that
Farm and Home had waived this issue by failing to raise it before either the zoning
hearing board or court of common pleas. Id. at 185. We also stated:
Even if standing had been raised below, we would hold
that Abe Oil’s status is not only as a business competitor,
but as a “person affected” by Farm and Home’s
application. Section 908(3) of the [MPC] provides:
The parties to the hearing shall be the municipality,
any person affected by the application who has
made timely appearance of record before the board
and any other person including civic or community
organizations permitted to appear by the board....
15
53 P.S. § 10908(3). Abe Oil’s property is directly affected
because it is catty-corner from the proposed gas station,
and Abe Oil expressed concerns about traffic and storm
water runoff at the hearing, as did other adjacent property
owners. The [zoning hearing board] provided notice to
Abe Oil of the hearing and permitted testimony from Abe
Oil demonstrating that Abe Oil was an “affected person.”
Id. at 185 n.3.
Here, Industrial’s participation in the April 19, 2018 Zoning Board hearing
was certainly of a lesser degree than that of the appellant in Abe Oil. Industrial
presented no evidence or witnesses, and its presence was confined to Mr. Daniel,
Raj Singh’s attorney, who made a handful of brief statements on behalf of his client
and attempted to poke holes in Wanamaker’s witness testimony on cross-
examination. Even so, this limited involvement, when combined with the
presumption of direct and adverse impact upon Industrial as Wanamaker’s next-door
neighbor, is sufficient to imbue Industrial with standing in this matter.
Turning to the substance of Industrial’s appeal, Section 910.2(a) of the MPC
makes clear that an applicant’s request for a variance should be granted only where
the following conditions are satisfied:
(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.
16
(3) That such unnecessary hardship has not been created
by the [applicant].
(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 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).
“To justify the grant of a dimensional variance, courts may consider multiple
factors, including the economic detriment to the applicant if the variance was denied,
the financial hardship created by any work necessary to bring the building [or
property] into strict compliance with the zoning requirements and the characteristics
of the surrounding neighborhood.” Hertzberg v. Zoning Bd. of Adjustment of City
of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998). “The quantum of proof required to
establish unnecessary hardship is indeed lesser when a dimensional variance, as
opposed to a use variance, is sought.” Id. at 48.
However, this does not mean that “dimensional requirements . . . [are] ‘free-
fire zones’[.]” Soc’y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of
City of Phila., 771 A.2d 874, 877 (Pa. Cmwlth. 2001). To that effect, our appellate
courts have “consistently reject[ed] requests for dimensional variances where proof
of hardship is lacking. Where no hardship is shown, or where the asserted hardship
amounts to a landowner’s desire to increase profitability or maximize development
potential, the unnecessary hardship criterion required to obtain a variance is not
satisfied even under the relaxed standard set forth in Hertzberg.” Soc’y Hill Civic
Ass’n v. Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth.
2012). Indeed, “[a] variance, whether labeled dimensional or use, is appropriate
17
‘only where the property, not the person, is subject to hardship.’” Yeager v. Zoning
Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)
(quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972)) (emphasis in
original). Thus, the onus is on the applicant to firmly establish that “a substantial
burden . . . attend[s] all dimensionally compliant uses of the property, not just the
particular use [that the applicant has chosen].” Yeager, 779 A.2d at 598 (emphasis
in original).
Here, the record is devoid of any evidence showing that Wanamaker
attempted to develop the Property without the need for dimensional variances.
Rather, as shown in particular by Mr. Britz’s testimony, it seems that Wanamaker
did not contemplate different or smaller development options, but instead began with
the goal of building its desired Wawa convenience store/gas station and then directed
its efforts towards shoehorning the project onto the Property. Though Mr. Britz flatly
stated that the desired variances were the minimum necessary to facilitate the
Property’s development, there is simply nothing substantive in the record to back up
that assertion. Furthermore, the Zoning Board granted dimensional variances
regarding signage and handicapped parking, even though Mr. Britz testified that the
development plan, as presented to the Zoning Board, rendered such variances
unnecessary. Therefore, the Zoning Board’s decision to grant Wanamaker’s
requested dimensional variances is not supported by substantial evidence and
constitutes an abuse of discretion, as well as an error of law.
Conclusion
Accordingly, in keeping with our aforementioned reasoning, we reverse the
18
Trial Court’s December 19, 2018 order, which denied Industrial’s statutory appeal
of the Zoning Board’s May 17, 2018 decision.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tinicum 15 Industrial Highway, L.P., :
Appellant :
:
v. : No. 32 C.D. 2019
:
Tinicum Township Zoning Hearing :
Board :
:
v. :
:
500 Wanamaker Avenue Partners, :
LLC :
ORDER
AND NOW, this 13th day of January, 2020, the Court of Common Pleas of
Delaware County’s December 19, 2018 order, which denied Appellant Tinicum 15
Industrial Highway, L.P.’s statutory appeal of Appellee Tinicum Township Zoning
Hearing Board’s (Zoning Board) May 17, 2018 decision, through which the Zoning
Board granted Appellee 500 Wanamaker Avenue Partners, LLC’s application for
zoning relief, is hereby REVERSED.
__________________________________
ELLEN CEISLER, Judge