B.A. Johnston v. E. Greenville Borough ZHB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brenda A. Johnston, :
Appellant :
:
v. :
:
East Greenville Borough : No. 376 C.D. 2020
Zoning Hearing Board : Argued: March 18, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 16, 2021
Brenda A. Johnston (Johnston) appeals from the December 16, 2019
Order of the Court of Common Pleas of Montgomery County (trial court) affirming
the April 9, 2019, decision of the Zoning Hearing Board of the Borough of East
Greenville1 in Montgomery County (Board). The Board denied Johnston’s
application for a use variance from the East Greenville Borough Zoning Ordinance
(Ordinance) to permit Johnston to convert a ground floor commercially zoned space
to a residential apartment. Upon review, we affirm the trial court’s order.
1
By letter to this Court dated October 5, 2020, the Borough Council declined to participate
in this matter.
Background
In 2006, Johnston acquired the property at 224-226 Main Street in the
Borough of East Greenville in Montgomery County. Reproduced Record (R.R.) at
4a. The property is in the Borough Commercial District (commercial district). Id.
On the property is a two-family twin residential building comprised of 224 Main
Street, for which Johnston seeks the variance, and 226 Main Street, for which
Johnston is not seeking a variance. Id. at 95a-96a & 99a; see also Borough of East
Greenville, Pa., Ordinance No. 4-96, § 95-11B(1) (Dwelling Types) (June 18,
1996).2
Both halves of the building have commercial spaces on the ground floor
and apartments on the upper floors. R.R. at 4a. These spaces are governed by
Section 95-71V of the Ordinance, which allows apartment conversions in the
commercial district only where the ground floor is reserved for commercial use.
Ordinance § 95-71V.3 Notwithstanding this limitation, in January 2019, Johnston
sought a use variance to convert the ground floor space of 224 Main Street from
commercial use to an apartment. R.R. at 5a.
The ground floor commercial space of 224 Main Street, which is about
900 square feet in size, was vacant when Johnston bought the property in 2006. R.R.
at 127a-28a & 130a. There have been three commercial enterprises in the space
2
“A two-family building with dwelling units placed side by side, with each occupying the
total space from ground to roof and joined to each other by a vertical, common party wall, but
otherwise surrounded by yard areas. When lotted, each dwelling unit may be on a separate lot,
with the common boundary between the two lots running along the common party wall. Separate
ingress and egress is provided to each unit.” Ordinance § 95-11B(1).
3
“In the Borough Commercial District, a building may be erected, altered or used and a lot
may be used or occupied for any of the following uses and no other: . . . Apartment conversions,
provided that all residential units are located above a commercial use. [Amended 3-2-1998 by Ord.
No. 98-6].” Ordinance § 95-71V.
2
since then, but it has not had a tenant in two years. Id. at 97a & 128a. The space
had been advertised for commercial rental with multiple listing sources in
Montgomery, Lehigh, and Berks Counties, and also online, but received only three
unsuccessful “bites” for rental in recent months. Id. at 98a; see id. at 50a. Johnston
testified that local economic conditions make it “very difficult” to rent for
commercial use. Id. at 98a & 128a.
Johnston’s property is in the commercial district but is located just 3-4
parcels away from the Borough Residential (BR) zone and across the street from the
Residential (R-1) zone. R.R. at 52a & 103a-04a. According to Johnston and her
real estate expert, Steven Rothenberger (Rothenberger),4 the conversion would not
have a negative visual impact on the neighborhood because it already looks like a
house and that would not change. Id. at 120a; see id. at 54a-62a & 107a-08a. It
would also be the least possible modification to the current provisions of the
Ordinance. Id. at 122a.
Johnston also argued at the hearing that the building’s noncompliance
with the Americans with Disabilities Act of 1990 (ADA)5 further complicates
commercial rental opportunities. The front of the building lacks an ADA-compliant
ramp, which to Rothenberger limits its viability as a commercial space. R.R. at 61a
& 108a. Rothenberger opined that “major renovations” would be needed to make
the space more accessible. Id. at 108a. By contrast, a residential property with fewer
than four units would not require ADA compliance. Id. at 126a.
4
Rothenberger has been in the local real estate business since 1982 and in the immediate
area for the past four years. R.R. at 99a-100a. He has previously been qualified as an expert
witness in real estate in both Montgomery and Berks Counties and the Board accepted him as an
expert for this proceeding. Id. at 100a-01a. He has no professional or financial interest in
Johnston’s property. Id. at 122a.
5
42 U.S.C. §§ 12101-12213.
3
Rothenberger presented photographs and real estate listings comparing
224 Main Street with nearby properties in the commercial district that have also been
vacant and available for lease for lengthy time periods. R.R. at 54a-55a, 64a-65a,
70a-71a, 75a-78a, 105a, & 110a-18a. Rothenberger averred: “[t]here’s no call for
commercial office space here.” Id. at 115a-16a. He explained that demand is “very
limited” and turnover and vacancies are high. Id. at 118a.
There was no testimony at the hearing in opposition to Johnston’s
requested variance. James Raftery (Raftery), a lifelong area resident and the
Borough Council Vice President, stated that since the property was rezoned about
20 years ago,6 “times have changed, things have changed,” and that the rise of large
retailers like Walmart and online retailers like Amazon “drove the small shops out”
of areas like the commercial district. R.R. at 134a-35a. Raftery believes that the
Borough “need[s] to look at some of these properties that have these form[s] of
issues and consider relief. Otherwise, what could end up happening over a course
of time is buildings being abandoned and walked away from.” Id. at 135a. Raftery
suggested that the Board consider granting Johnston’s variance request. Id.In addition, a letter from the East Greenville Borough Planning
Commission (Planning Commission) to the Board was also entered into evidence at
the hearing, stating that the Planning Commission reviewed Johnston’s application
and voted 4-1 to recommend approval of the variance. R.R. at 48a.
At the close of the hearing, the Board denied Johnston’s application
because “a true hardship has not been proven.” R.R. at 137a-38a. In its subsequent
written decision, the Board explained that the commercial district was zoned with
the intent to encourage “commercial uses and neighborhood services” and that the
6
Johnston’s counsel confirmed that the Ordinance provision governing the property was
enacted in 1998. Reproduced Record (R.R.) at 136a.
4
variance was at odds with that intent. Board Decision, 4/9/19, at 3 (pagination
supplied); R.R. at 142a (quoting Ordinance § 95-70). The Board acknowledged
Johnston’s assertions that the primarily residential nature of 224 Main Street made
it a poor fit for commercial use, but found that Johnston’s property was “not unique
in this regard but similar to many others in the area,” including other residential
buildings that also have ground floor commercial spaces. Board Decision at 2; R.R.
at 141a. The Board therefore concluded that Johnston’s alleged hardship was not
specific to her property, but rather “is the condition generally created by the
Ordinance which impacts all of the properties in the [commercial district].” Board
Decision at 3-4; R.R. at 142a-43a.
Johnston appealed to the trial court, which held argument but took no
further evidence. Trial Ct. Op., 6/30/20, at 4. The trial court affirmed the Board’s
denial of Johnston’s requested variance, generally deferring to the Board’s fact-
finding role and agreeing with the Board’s determinations and conclusions. Id. at
14-19. Johnston then appealed to this Court.
Issues on Appeal
On appeal,7 Johnston argues that the Board’s findings and conclusions
were not supported by substantial evidence and that the Board erred in finding “mere
7
Where the trial court did not take any additional evidence, appellate review of the decision
of a zoning board is limited to determining whether the board abused its discretion or committed
legal error. Township 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). 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.
5
economic hardship as a result of the impact of the zoning regulation that impacts the
entire district, rather than a hardship due to the unique physical characteristics of
[her] property[.]” Johnston Br. at 3. Therefore, Johnston asserts that the trial court
erred in affirming the Board’s decision. See id.Analysis
“A variance is an extraordinary exception and should be granted
sparingly[.]” Heisterkamp v. Zoning Hearing Bd. of Lancaster, 383 A.2d 1311, 1314
(Pa. Cmwlth. 1978). The burden on the applicant for a use variance is heavy.
Fairview Township v. Fairview Twp. Zoning Hearing Bd., 233 A.3d 958, 963 (Pa.
Cmwlth. 2020). Because a use variance involves a “proposal to use the property in
a manner that is wholly outside the zoning regulation,” our courts have required strict
proof without the relaxed standards that have been permitted for dimensional
variances. Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43, 47 (Pa. 1998).
Generally, the fact that “the property may be used more profitably with the proposed
use is not grounds for granting a variance.” Fairview Township, 233 A.3d at 963;
see also Marshall v. City of Phila., 97 A.3d 323, 330 (Pa. 2014) (“evidence that the
zoned use is less financially rewarding than the proposed use is insufficient to justify
a variance”).
Section 95-200 of the Ordinance is adapted from Section 910.2 of the
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805,
as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
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 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.6
See Ordinance § 95-200. The applicant must show that: (1) the applicant’s property
is subject to unique physical conditions; (2) those conditions cause unnecessary
hardship unreasonably inhibiting the property’s usefulness; (3) the hardship is not
self-inflicted; (4) granting a variance will not have an adverse effect on the public
health, safety, or general welfare; and (5) the requested variance represents the
minimum variance that will afford relief with the least modification possible.
Fairview Township, 233 A.3d at 961 n.6 (citing 53 P.S. § 10910.2 and quoting Twp.
of E. Caln v. Zoning Hearing Bd. of E. Caln Twp., 915 A.2d 1249, 1252 (Pa. Cmwlth.
2007)).
Here, it is undisputed that granting the requested use variance will have
no adverse effect on the neighborhood and that the request represents the minimum
variance required to afford relief with the least modification possible. Thus, the
fourth and fifth requirements for a use variance are not at issue. See Fairview
Township, 233 A.3d at 961 n.6. Assuming, for purposes of this analysis, that
Johnston also met the third requirement, lack of self-inflicted hardship,8 it was still
her burden to establish the first two requirements: that the property suffers from
unique physical conditions and that those conditions have created an unnecessary
hardship rendering the property unfeasible for use in its current commercial
designation. Id.
8
Although Johnston was aware of the zoning when she bought the property, neither the
Board nor the trial court made any finding as to whether the hardship on the property, if any, was
self-inflicted. “[T]he mere fact that one purchases property with knowledge of the hardship does
not necessarily preclude a variance.” H. A. Steen Indus., Inc. v. Zoning Hearing Bd., 410 A.2d
386, 387 (Pa. Cmwlth. 1980). However, our disposition of this matter makes it unnecessary to
determine whether Johnston satisfied this requirement. See A & D, Inc. v. Zoning Hearing Bd.,
379 A.2d 654, 657 (Pa. Cmwlth. 1977) (not necessary to decide whether variance applicant’s
hardship was self-imposed, where applicant otherwise failed to meet variance requirements).
7
Unnecessary hardship requires evidence demonstrating at least one of
three alternatives: “‘(1) the physical features of the property are such that it cannot
be used for a permitted purpose;[9] (2) the property can be conformed for a permitted
use only at a prohibitive expense; or (3) the property is valueless for any purpose
permitted by the zoning ordinance.’” See S. of S. St. Neighborhood Ass’n v. Phila.
Zoning Bd. of Adjustment, 54 A.3d 115, 121 (Pa. Cmwlth. 2012) (SOSSNA),
overruled in part on other grounds by Scott v. City of Phila., 126 A.3d 938, 950 (Pa.
2015) (quoting Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 812
(Pa. Cmwlth. 2005)). We consider each of the three alternative hardship elements
in turn.
(1) Physical Features of the Property
Johnston argues that the residential character of the space is, in and of
itself, the physical feature that makes it unsuitable for commercial use. Johnston Br.
at 12. Rothenberger testified that the lack of ADA accessibility and the layout of the
space, with separate rooms and narrow hallways, are characteristic of a residence.
R.R. at 108a & 121a. He opined that these conditions make the space unfeasible for
retail use and of only limited feasibility as offices. R.R. at 108a & 121a. However,
Johnston’s own admissions belie these assertions. Johnston conceded that the space
has had three commercial tenants since 2006 when she acquired the building. R.R.
at 128a. She contends it is “very difficult” to rent it for that use now, due to local
economic conditions. Id. at 98a & 128a.
The Board concluded that Johnston had not shown that “some unique
feature of the property” bars the possibility of commercial use, stating: “This is
borne out by the fact that the commercial space [has] been rented on previous
9
As this element overlaps with the requirement that the property must have a unique
character, we discuss both as a single requirement.
8
occasions to a variety of uses” during the time it has been commercially zoned.
Board Decision at 4; R.R. at 143a. We find no error in the Board’s statement, which
is supported by evidence of record. Thus, the first alternative form of hardship,
physical features that make commercial use impossible, has not been established.
(2) Prohibitive Expense
In support of her position regarding the second alternative form of
hardship, that conforming the space for commercial use would be prohibitively
expensive, Johnston emphasizes the need to remedy the space’s lack of ADA
accessibility. Johnston Br. at 12. This would entail adding a ramp to the public
entrance and addressing the narrow hall passages inside, which Johnston asserts
would require “major renovations” in order to make the space conducive to
commercial use. Id. at 12, 18, & 23-24.
Johnston did not, however, produce estimates or other evidence of the
actual costs to conform the property for more advantageous commercial use.
Compare Allegheny W. Civic Council, Inc. v. Zoning Bd. of Adjustment of the City
of Pittsburgh, 689 A.2d 225, 228 (Pa. 1997) (testimony estimating $2.5-3 million in
costs of remediating contamination found to be substantial evidence of prohibitive
expense), and Wagner v. City of Erie Zoning Hearing Bd., 675 A.2d 791, 794 (Pa.
Cmwlth. 1996) (evidence of estimates ranging from $750,000-$864,000 to bring
property into compliance found sufficient evidence of prohibitive expense), with Lay
v. Zoning Hearing Bd. of Mun. of Bethel Park, 432 A.2d 1146, 1148 (Pa. Cmwlth.
1981) (“[O]ur review of the record reveals that [the applicant] presented no evidence
as to the cost of relieving the anticipated drainage problem or as to how much
expense would be actually ‘prohibitive[.]’”).
9
In addition, as the trial court noted, the record before the Board revealed
that the space had been rented out for commercial use “without remodeling or
restructuring” three times since Johnston acquired it. Trial Ct. Op. at 13 (italics in
original). Accordingly, Johnston failed to demonstrate that renovations were
necessary and prohibitively expensive to use the property for a commercial use.
Thus, the second alternative form of hardship has not been established. Id. at 12-13.
(3) Valuelessness for Permitted Purpose
The remaining alternative form of hardship requires proof that the
ground floor space of 224 Main Street is “valueless” as a commercially zoned
property. See SOSSNA, 54 A.3d at 121; Liberties Lofts LLC v. Zoning Board of
Adjustment, 182 A.3d 513, 534 (Pa. Cmwlth. 2018). Johnston’s evidence
emphasized that her building is and looks like a house and was used for residential
purposes before its designation in 1998 as part of the commercial district. R.R. at
99a, 134a & 136a-37a. Johnston asked the Board to compare her building’s
primarily residential character with nearby properties, some of which are more
commercial in nature, that have also been vacant and available for lease for at least
a year. Id. at 54a-55a, 64a-65a, 70a-71a, 105a, & 110a-18a. In competition with
those properties and in light of the neighborhood’s marked commercial decline in
recent years, Johnston asserts that her essentially residential space is unlikely to
attract a commercial tenant. Id. at 121a & 130a. Even the current restaurant tenant
in the ground floor of 226 Main Street on the other side Johnston’s building on the
property is leaving due to a lack of foot traffic and business. Id. at 96a.
Johnston combines her emphasis on the residential nature of her
property with SOSSNA’s statement that “where a property may once have not been
10
burdened by an unnecessary hardship, the course of time may effect changes to that
property and the surrounding area, which may ultimately result in the creation of an
unnecessary hardship that did not previously exist.” Johnston Br. at 16 (quoting
SOSSNA, 54 A.3d at 120). Johnston avers that because her property is uniquely less
feasible for commercial use than those that are already commercially configured and
nonetheless struggling, she has established sufficient valuelessness. Johnston Br. at
13. Johnston argues that the physical circumstances of her property, specifically its
primarily residential configuration, make her property valueless in and of itself
rather than subject to “mere economic hardship” resulting from the impact of the
zoning regulations on the entire commercial district.10 Johnston Br. at 13-16, 18-19,
& 22.
The Board expressly rejected Johnston’s assertion that her property was
unique within the commercial district due to its residential nature: “The
neighborhood is a typical downtown mix of single and multiple family residential
buildings with commercial storefronts on the first floor facing Main Street.
[Johnston’s property] is therefore not unique in this regard but similar to many others
in the area.” Board Decision at 2; R.R. at 141a. Likewise, although the Board
acknowledged that the area experienced “difficulty” finding commercial tenants,
“this is a circumstance that affects the entire [commercial district], not just the
subject property. Board Decision at 3; R.R. at 142a. The trial court found the
Board’s determination to be sufficiently supported by the evidence and entitled to
deference. Trial Ct. Op. at 8-10 & 12-15.
10
In this regard, the factors affecting whether property suffers a unique hardship are
interconnected with those affecting whether the property is valueless for a permitted purpose.
11
In Appeal of Michener, 115 A.2d 367 (Pa. 1955), the Court considered
whether a residentially zoned property in Delaware County was eligible for a use
variance to build a store, in light of changes to neighborhood conditions.11 The
applicant presented evidence that the street on which the property fronted had
become a major artery of travel, that the area was experiencing a “general
commercial trend,” and that he had been unable to sell the property as a residence
despite seven months of effort. Id. at 370. Our Supreme Court concluded that the
conditions set forth by the applicant “applied to the entire area.” Id. at 371.
However, “a variance may be granted only where a property is subjected to a
hardship unique or peculiar to itself as distinguished from one arising from the
impact of the zoning regulations on the entire district.” Id. The Court reasoned that
even if the property was less attractive as a residence than when the applicant first
occupied it, “the same changes affected all of his neighbors and all of the persons in
the district alike.” Id.As a matter of policy, the Court noted:
If a Zoning Board were to be allowed to grant variances to
individual properties because of changes in the district
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. . . . But even if
the applicants were justified in their contention that the
neighborhood had changed somewhat from residential to
commercial, that fact would not, for the reason stated,
justify the allowance of a variance by the Board of
11
Appeal of Michener, 115 A.2d 367 (Pa. 1955), predates the hardship test as it is now
applied. See City of Phila. Zoning Bd. v. Earl Scheib Realty Corp., 301 A.2d 423, 426 (Pa.
Cmwlth. 1973) (combining rules from Peirce v. Zoning Bd. of Adjustment, 189 A.2d 138 (Pa.
1963); Forest Hills Borough Appeal, 187 A.2d 166 (Pa. 1963); Ferry v. Kownacki, 152 A.2d 456(Pa. 1959); and Zoning Bd. of Adjustment v. Koehler, 278 A.2d 375 (Pa. Cmwlth. 1971)).
12
Adjustment but only, at best, a call upon the Township
Commissioners to re-zone the district.
Id. at 371-72.
Several years later, in English v. Zoning Board of Adjustment of the
Borough of Norristown, 148 A.2d 912 (Pa. 1959), our Supreme Court reversed the
grant of a variance allowing an applicant to operate a beauty salon and shop in a
residentially zoned district. Id. at 913-15. In doing so, the Court again warned
zoning boards against overreaching:
The legislative bodies must be alert to the developments
which are constantly occurring in their communities which
increase or decrease the commercial, residential or
industrial desirability of particular areas. It is the
responsibility of the proper legislative authorities to keep
abreast of the changes so that zoning ordinances do not
become obsolete but realistically reflect the changes which
occur in the community. Even though the temptation be
great if the legislative body fails to act, still the legislative
function does not pass to the zoning board of adjustment.
English, 148 A.2d at 914-15.
Similarly, in Hill District Project Area Committee, Inc. v. Zoning Board
of Adjustment of the City of Pittsburgh, 638 A.2d 278 (Pa. Cmwlth. 1994), this Court
determined the applicant had not demonstrated entitlement to a variance because the
conditions complained of applied to the entire area and were not particular to the
applicant’s property:
Nothing less than a showing of hardship that is special and
peculiar to the applicant’s property will empower the
[b]oard to grant a variance. If there is a general hardship,
the situation should be remedied by revision of the general
zoning regulations, not by the grant of a special privilege
to single owners. Even if an area may be in need of a
complete rezoning classification, such does not permit the
13
grant of a variance to a single property. The conditions to
which [the applicant’s] property were subject did not
constitute any hardship which especially affected the
property; on the contrary, they applied to the entire area.
Id. at 281.
This Court’s analysis in SOSSNA is distinguishable. There, the
applicant acquired property in 1999. When he sought a use variance in 2008, the
property had been listed for sale for its zoned industrial use for five years without
success. 54 A.3d at 121. The zoning board granted the variance request based on
the prohibitive expense of renovations to conforming use and a finding of
valuelessness based on the applicant’s inability over five years to sell the property
for industrial use (the second and third alternatives in the hardship test). Id. at 119
& 121-22. In affirming the grant of a variance, we “specifically acknowledged that
a sustained, but unsuccessful attempt to sell property constitutes evidence that the
property lacks value for any permitted use.” Id. at 122. Based on the applicant’s
five-year-long attempt and failure to sell the property for industrial use, we
recognized the board’s role as the arbiter of credibility and facts and found its
conclusion of an unnecessary hardship (the third alternative of the hardship test) was
reasonable. Id.12
Liberties Lofts is likewise distinguishable. There, the applicant sought
a use variance to construct a mixed residential and commercial structure and garage
in a mixed industrial-commercial zoning district. 182 A.3d at 515. The plans
required demolition of a deteriorated former industrial building on the property that
had been mostly vacant for some time. Id. at 515, 519. A real estate broker opined
12
The SOSSNA zoning board’s finding concerning the second element of the hardship test,
a showing of prohibitive expense to conform the property for a permitted use, was not substantively
addressed in this Court’s decision.
14
that the property was not rentable13 for industrial use in its current condition. Id. at
517. Moreover, the applicant’s representative testified that even if the current
building was renovated, no tenant would “pay any kind of market rent that would
make this project work” as industrial property. Id. at 517. Therefore, he stated the
property, in its current zoning, was “valueless. There’s no value.” Id.
The zoning board granted the variance on the basis that the property
was valueless as currently zoned and could only be converted to a permitted use at
a prohibitive expense (the second and third elements of the hardship test). Id. at 518,
534. The board explained that in light of the dilapidated status of the current building
and the contemporary nature of the area, which was transitioning from industrial to
commercial and residential uses, sufficient hardship had been established. Id. at
518-19.
This Court affirmed, emphasizing the deference due the local zoning
board in light of its “expertise in and knowledge of local conditions.” Id. at 530; see
also Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 9 (Pa. Cmwlth.
2015) (same). We particularly focused on the zoning board’s consideration of the
existing building’s poor rental history and prospects, its incompatibility with the
neighborhood’s contemporary residential and commercial character, and the
applicant’s project design geared toward the current state of the neighborhood.
Liberties Lofts, 182 A.3d at 532-34. The board’s grant of a use variance was
supported by the record and valid in light of SOSSNA’s recognition that changes in
13
Liberties Lofts resembles this case in that the property’s owner had difficulty renting
rather than selling. 182 A.3d at 517. The analysis for establishing valuelessness as a hardship
sufficient to support a use variance remains essentially the same whether the issue is sales or rental.
See also Soc’y Created to Reduce Urban Blight (SCRUB), 831 A.2d, 1255, 1262 (Pa. Cmwlth.
2003) (“There is not a unique problem with the property undermining its rental value.”).
15
a property’s surrounding area may contribute to the finding of requisite hardship.
Id. at 534-35.
As the foregoing decisions illustrate, in considering whether an
applicant has demonstrated the requisite hardship, the changing character of the
surrounding neighborhood and the applicant’s ability (or lack thereof) to sell or rent
the property for its current designated use are relevant. Liberties Lofts; SOSSNA. In
this regard, the zoning board’s knowledge of local conditions is entitled to
significant deference on appeal. Liberties Lofts; Tidd. However, the ultimate
inquiry remains whether the applicant’s property has a unique character or defects
that cause the hardship. See, e.g., Fairview Township. 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. See English; Michener; Hill District Project.
Both SOSSNA and Liberties Lofts involved zoning designations specific
to the properties at issue due to their particular positions in the midst of other
properties that were successfully zoned another way. Due to the properties’
particular and now-archaic zoning designations, they became valueless over time
and therefore saddled with unnecessary hardships.
Johnston’s property, however, is not zoned one way in an area zoned
another way. Rather, it lies within a cluster of properties all zoned for ground floor
commercial use, and with all suffering the same hardship of low tenant interest. R.R.
at 54a-55a, 64a-65a, 70a-71a, 105a, & 110a-18a. In fact, Raftery, the Borough Vice
President, acknowledged as much: “[I]n our Borough, [] I believe that we need to
look at some of these properties that have these form[s] of issues and consider relief.”
R.R. at 135a.
16
This matter is thus analogous to English, Michener, and Hill District
Project, where the hardship was general and common to the entire area subject to
the same zoning restrictions and not “special and peculiar” to one property. Hill
District Project, 638 A.2d at 281. The appropriate remedy in such circumstances,
as those decisions point out, is not the grant of a variance to a single property, but
local legislative rezoning of the area as a whole.
The Board rejected Johnston’s assertion of uniqueness based on her
property’s residential character, and the Board’s knowledge of the local conditions
warrants deference from this Court. Board Decision; R.R. at 141a; Liberties Lofts,
182 A.3d at 530; Tidd, 118 A.3d at 9. We find no error in the Board’s conclusion
that Johnston failed to establish the “valuelessness” form of hardship. See Board
Decision at 3-4; R.R. at 142a-43a. Johnston’s requested use variance was therefore
properly denied.
Conclusion
Based on the foregoing analysis, we affirm the trial court’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brenda A. Johnston, :
Appellant :
:
v. :
:
East Greenville Borough : No. 376 C.D. 2020
Zoning Hearing Board :
ORDER
AND NOW, this 16th day of April, 2021, the December 16, 2019 Order
of the Court of Common Pleas of Montgomery County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge