TRDS 441 Hector Associates, LP v. Conshohocken ZHB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
TRDS 441 Hector Associates, LP, :
Appellant :
:
v. :
:
Conshohocken Zoning Hearing : No. 1316 C.D. 2022
Board : Argued: June 5, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 3, 2023
TRDS 441 Hector Associates, LP (Appellant) appeals from the
Montgomery County Common Pleas Court’s (trial court) October 17, 2022 order
denying its appeal from the Conshohocken Borough (Borough) Zoning Hearing
Board’s (ZHB) October 18, 2021 order (ZHB Order) that granted property owner
Jeronimos LLC (Jeronimos) a special exception for real property located at 424 East
Elm Street in the Borough (Property). Appellant presents four issues for this Court’s
review: (1) whether the trial court erred by finding that the ZHB properly permitted
Jeronimos to amend the proposed purchaser’s special exception application
(Application) to add itself as a co-applicant or substitute applicant, rather than
concluding that a new application had been submitted; (2) whether the trial court
erred by concluding that Appellant waived the issues related to the ZHB’s decision
permitting the Application’s amendment; (3) whether the ZHB1 erred by finding that
1
Appellant’s issues refer to whether the trial court erred; “[o]ur standard of review,
however, pertains to whether the [ZHB], not the trial court, erred or abused its discretion.” In re
Brickstone Realty Corp., 789 A.2d 333, 338 n.2 (Pa. Cmwlth. 2001).
the Application was timely filed; and (4) whether the ZHB erred by finding that
Jeronimos met its burden of proving that the new nonconforming use was no more
detrimental than the existing nonconforming use. After review, this Court affirms.
Fiona Jamison (Jamison) owns Jeronimos, a real estate holding
company that owns the Property. The Property, which Jeronimos acquired in 2007,
and is located in the Borough’s BR-2 residential zoning district, is improved with a
two-story building containing approximately 4,000 square feet per story. The
Property has 18 on-site parking spaces and, through an easement, exclusively uses 3
spaces on Appellant’s Property and has access to an additional 29 spaces on
Appellant’s Property (Easement) (collectively, Parking Area). Appellant owns the
adjacent property at 441 East Hector Street (Appellant’s Property) that is burdened
by the Easement. In 2005, the ZHB had granted the Property’s former owner a
special exception under the Borough of Conshohocken Zoning Ordinance (Borough
Code)2 to change the then-existing nonconforming contractor office and warehouse
on the first floor to a nonconforming fitness/wellness center and related offices.
Following Jeronimos’ purchase of the Property, the first floor remained a wellness
center and yoga studio, and Jamison used the second floor to operate her own
employee research company.
On June 24, 2021, S.K. Elm LLC (SK Elm) filed the Application with
the ZHB, identifying itself as the Property’s equitable owner. The Application
proposed no change to the second-floor office space, but requested a special
exception to change the nonconforming wellness center/yoga studio on the first floor
to a mix of warehouse/storage, equipment service/maintenance, and related support
and office space. The ZHB held a hearing on July 19, 2021, during which Appellant
appeared, obtained party status, and requested a continuance so it could review the
2
Borough of Conshohocken, Pa., Borough Code 6-2001, as amended, §§ 27-101 - 27-2211
(2001).
2
Application further. Jamison was also granted party status at the July ZHB Hearing.
See Reproduced Record (R.R.) at 27a-28a. The ZHB continued the hearing until
August 16, 2021.
In the interim, SK Elm withdrew from its proposed Property sales
agreement with Jeronimos. At the August 16, 2021 hearing (August ZHB Hearing),
at Jeronimos’ request, the ZHB agreed to amend the Application to substitute
Jeronimos as the applicant. Jamison and traffic engineer, Frank Tavani (Tavani),
testified on Jeronimos’ behalf. Michael Barrist (Barrist), Appellant’s owner, and
Anthony Rufo (Rufo), a tenant at Appellant’s Property and former owner of both the
Property and Appellant’s Property, testified on Appellant’s behalf. At the August
ZHB Hearing’s conclusion, the ZHB continued the matter to September 13, 2021
(September ZHB Hearing), to permit the parties to submit proposed findings of fact
and conclusions of law. At the September ZHB Hearing, the matter was adjourned
until October 18, 2021 (October ZHB Hearing).
At the October ZHB Hearing, the parties presented their closing
arguments. Thereafter, the ZHB voted to approve the Application. Appellant filed
a timely appeal to the trial court, and Jeronimos and Jamison intervened. The ZHB
issued its written decision on December 2, 2021, from which Appellant filed a
supplemental notice of appeal. On October 17, 2022, the trial court denied
Appellant’s appeal. Appellant appealed to this Court.3, 4
3
“Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the [ZHB] committed an abuse of discretion or an error of law.” PAJ
Ventures, LP v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891, 896 n.2 (Pa. Cmwlth. 2020).
4
On February 1, 2023, Jeronimos sold the Property to OPS Realty Holding, LLC (OPS).
On February 3, 2023, OPS filed a motion to substitute itself for Jeronimos and Jamison. On
February 9, 2023, this Court granted the motion and ordered that OPS be substituted for Jeronimo
and Jamison as a party in this appeal. This Court herein references Appellee applicant as
Jeronimos for clarity.
3
This Court first addresses Appellant’s contention that the trial court
erred by holding that Appellant waived any objection to the ZHB’s decision to
substitute Jeronimos as applicant, because Appellant failed to timely raise the issue.
Appellant argues that Jeronimos’ request to be added as a co-applicant effectively
constituted the Application’s withdrawal and the submission of a new application
(Jeronimos’ Application). Appellant asserts that it objected “at the appropriate time
when it was ‘apparent’ that Jeronimos intended for [] Jeronimos[’] Application to be
considered as an amendment or as Jeronimos having filed the same as a co-applicant
with SK Elm for the purposes of circumventing Borough Code requirements.”
Appellant Br. at 27. Appellant argues that
[i]t was during [the closing arguments stage at the October
ZHB Hearing] where Jeronimos’[] counsel first clarified
that [] Jeronimos[’] Application was piggybacking on the
procedural measures complied with under the SK Elm
Application. [See] R[.]R[. at] 166a at 15-19 (where,
contrary to mixed office warehouse use proposed in the []
Application, counsel clarifies that Jeronimos intends to
use the space for its own office use).
Id. at 28. Jeronimos retorts that the trial court properly held that Appellant’s failure
to timely raise the issue resulted in waiver.
This Court has explained:
“If parties do not request that the trial court hear additional
evidence, they waive arguments which were not raised
before the [ZHB].” Soc’y Created to Reduce Urban Blight
v. Zoning Bd. of Adjustment, 804 A.2d 116, 119 (Pa.
Cmwlth. [2002]). . . . “This approach ensures that the
fact[-]finder has a full opportunity to create a reviewable
record on all issues.” Id.Barnabei v. Chadds Ford Twp. Zoning Hearing Bd., 118 A.3d 17, 23 (Pa. Cmwlth.
2015); see also Section 753(a) of the Local Agency Law, 2 Pa.C.S. § 753(a) (“[I]f a
full and complete record of the proceedings before the [local] agency was made[,]
4
such party may not raise upon appeal any . . . question not raised before the agency
. . . unless allowed by the [trial] court upon due cause shown.”).
Further, the law is well established that “a party has a duty to preserve
an issue at every stage of a proceeding . . . [and] also must comply with the general
rule to raise an issue at the earliest opportunity.” Campbell v. Dep’t of Transp.,
Bureau of Driver Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014) (emphasis added).
“Issues not raised at the earliest possible time during a proceeding are waived.”
City of Phila. v. DY Props., LLC, 223 A.3d 717, 723 (Pa. Cmwlth. 2019) (bold and
underline emphasis added) (quoting Grever v. Unemployment Comp. Bd. of Rev.,
989 A.2d 400, 402 (Pa. Cmwlth. 2010));5 see also Liberties Lofts LLC v. Zoning Bd.
of Adjustment, 182 A.3d 513 (Pa. Cmwlth. 2018) (where additional evidence was
not offered to the trial court, the trial court properly found an issue waived because
it was not raised before the zoning hearing board, was not raised in the party’s initial
brief to the trial court, and was first raised by the party in oral argument to the trial
court).
At the August ZHB Hearing, Jeronimos’ counsel sought permission to
amend the Application for Jeronimos to be a co-applicant because SK Elm had
withdrawn from the proposed agreement to purchase the Property:
[Jeronimos’ Counsel]: . . . . I made an application on behalf
of SK Elm[] . . . .
When we filed the [A]pplication, [] Jamison, who is the
sole member of [sic] the owner of the [P]roperty, entered
her appearance on her behalf, on behalf of the owner. So[,]
I wrote to -- I’ve spoken with [] Jamison since that time,
and I wrote to [ZHB Chairman Richard D.] Barton [(ZHB
Chairman Barton)] entering my appearance on behalf of
the owner, Jeronimos[]. [It has] standing under the
5
Grever was superseded on other grounds by Pa.R.A.P. 1513(d), as recognized in Morgan
v. Unemployment Comp. Bd. of Rev., 108 A.3d 181 (Pa. Cmwlth. 2015).
5
[Pennsylvania Municipalities Planning Code,6] and I
would ask that the [A]pplication be amended to reflect
Jeronimos as a co-app[licant].
[Borough Solicitor]: And Jeronimos . . . was listed as the
owner of record on the zoning hearing notice that was sent
out and mailed out.
[Jeronimos’ Counsel]: Yes.
[Borough Solicitor]: And[] [Jeronimos’ Counsel], to
clarify, has any of the zoning relief changed at all?
[Jeronimos’ Counsel]: No, it’s the same exact request.
There is [sic] -- the [P]roperty is nonconforming, and the
[A]pplication is to change the first[-]floor use from a
wellness/yoga center to [sic] office, which was the use
back in 2005. I think [ZHB Chairman] Barton referenced
in one of the exhibits in the record is that prior special
exception.
[Borough Solicitor]: And, [ZHB Chairman Barton],
hearing that and reviewing documents, I would feel
comfortable proceeding with the applicant now being
Jeronimos [], rather than SK Elm [].
[ZHB Chairman Barton]: I will agree[,] and we should
proceed.[7]
R.R. at 55a-56a (emphasis added).
Appellant made no objection in response to Jeronimos’ request or the
ZHB’s granting of the request at any time during the August ZHB Hearing,
notwithstanding that Appellant was permitted to and, in fact did, present witnesses
and evidence opposing the Application. Nor did Appellant’s counsel object to any
evidence Jeronimos offered. Notwithstanding that Appellant contends it was unclear
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
7
Notwithstanding this exchange wherein the ZHB agreed to “proceed[] with the applicant
now being Jeronimos [], rather than SK Elm [][,]” R.R. at 56a, in its decision, the ZHB stated:
“The Application was originally submitted by . . . SK Elm []. Thereafter, SK E[lm] [] withdrew
as the [a]pplicant and the owner of the [Property], Jeronimos [] became the sole applicant for
relief.” R.R. at 14a.
6
until closing arguments at the October ZHB Hearing that Jeronimos effectively
sought to substitute itself for SK Elm as the applicant, Appellant’s counsel did not
object to the Application when Jamison testified at the August ZHB Hearing that SK
Elm had “pulled out” as a proposed buyer of the Property and the ZHB substituted
Jeronimos for SK Elm as the applicant. R.R. at 81a. Rather, Appellant’s counsel
presented substantive objections to the Application, but made no objection as to who
was the applicant. At the August ZHB Hearing’s conclusion, the matter was
continued to the September ZHB Hearing.
At the September ZHB Hearing, the matter was adjourned until October
18, 2021, because only four ZHB members could attend. Although present at the
September ZHB Hearing, Appellant’s counsel did not raise any objection to the
Application’s amendment or any previously admitted evidence.
At the October ZHB Hearing, the parties made closing arguments. The
closest Appellant’s counsel came to raising an issue about the Application came at
the end of his argument, when he stated:
And, last, but certainly not least, the fact that there was this
new application submitted in August, August 16th of this
year, with virtually no details as to what the actual new
nonconforming use was supposed to be, no application, no
drawings, no business details, no descriptions, virtually
the polar opposite of the initial [A]pplication that was filed
in June by SK Elm before that was abandoned, it
unnecessarily puts the burden on the [ZHB] to try to make
an evaluation as to whether this would violate the 2006
[E]asement or the [B]orough [C]ode restricting the
definition required to meet the criteria for a special
exception.
R.R. at 169a. Notably, Appellant’s counsel did not object to the amendment, did
not suggest the Application was untimely, and did not raise any other
procedural objection. However, without any foundation, Appellant’s counsel
7
appears to assert that the Application was withdrawn and no application or a new,
purportedly incomplete application, was filed.
The trial court explained:
[A]ppellant waived any challenge to the ZHB’s decision
to permit amendment of the [A]pplication to install
Jeronimos as a co-applicant. As the ZHB noted in its brief,
[A]ppellant did not object at the August [ZHB H]earing
when the amendment was requested and approved. [The
trial] court’s review of the record did not reveal a timely
objection. Indeed, [A]ppellant does not appear to assert in
[its] brief or reply brief filed in this [trial] court that it
raised a timely objection to Jeronimos becoming a co-
applicant. As such, [A]ppellant did not properly preserve
this claim for [the trial] court’s review[,] and it should not
be heard now on further appeal to challenge the ZHB’s
decision to permit Jeronimos to pursue the original
[A]pplication as a co-applicant. See Segal v. Zoning
Hearing B[d.] of Buckingham Twp., 771 A.2d 90, 94 (Pa.
Cmwlth. 2001) (argument not raised before [the zoning
hearing] board is waived on appeal).
Trial Ct. Op. at 5, R.R. at 358a (citation and footnote omitted).8 This Court agrees
with the trial court’s reasoning.
Appellant had more than adequate notice at the August ZHB Hearing
that Jeronimos was requesting to be a co-applicant, and that SK Elm had withdrawn
from the Property’s proposed agreement of sale. Nonetheless, Appellant did not
object to the Application’s amendment at the August ZHB Hearing, the September
ZHB Hearing, or the October ZHB Hearing, and it did not raise the argument that
the Application had been withdrawn and no application or a separate Jeronimos’
Application had been filed until Appellant concluded its closing arguments.
Accordingly, Appellant waived any objection to the Application’s amendment.
8
In a footnote, the trial court acknowledged that “[t]he return of record filed with the [trial]
court appears to be missing pages six and seven from the transcript of the [October ZHB Hearing],
during which counsel for the parties were making closing arguments.” Trial Ct. Op. at 5 n.4, R.R.
at 358a n.4.
8
Appellant next asserts that the trial court erred by concluding that the
ZHB correctly determined that the Application was timely filed within one year of
when the nonconforming yoga studio use was discontinued. Claiming that the
amendment effectuated the Application’s withdrawal and the new Jeronimos’
Application’s submission, Appellant contends that the Jeronimos’ Application was
not filed within one year of the discontinuance of the nonconforming yoga studio
use. Specifically, Appellant argues:
[On August 16, 2021,] Jeronimo[s] submitted the
Jeronimo[s’] Application that, based on Jeronimos’[]
testimony, substantively deviated from the [] Application
filed in June 202[1]. The record is clear that Jeronimos
was not the applicant under the [] Application filed on or
about June 21, 2021. R[.]R[. at] 178a (where applicant is
listed as SK Elm [] c/o Martin Klagholz). Moreover, the
[trial] [c]ourt’s determination that the Property was not
vacant in July of 2020[,] is not supported by any testimony
or evidence in the record.
Appellant Br. at 35. Because Appellant waived its argument that the Application is
a separate Jeronimos’ Application filed on August 16, 2021, this Court shall only
consider whether the Application was timely filed on June 18, 2021. See R.R. at
178a.
Section 27-703(c) of the Borough Code states:
A nonconforming use, when discontinued, may be
resumed any time within one year from such
discontinuance,[9] but not thereafter, unless a variance is
9
Appellant argues that “discontinuance” is a “less rigorous standard” than abandonment,
Appellant Br. at 37, and that “[t]he Borough Code . . . does not require proving an ‘intent to
discontinue’ but, rather, just a discontinued use.” Appellant Br. at 37. The Borough Code defines
“[d]iscontinuance” as
[t]he termination of both a) the use or activity at the property which
had previously been permitted under this Chapter be it by variance,
special exception or as a nonconforming use and b) the intent to
continue such discontinued use or activity. A use or activity
9
granted by the [ZHB] in accordance with Part 6 of this
Chapter. The resumption may be of the same use, or
another nonconforming use which is equally
appropriate or more appropriate to the district in which it
is located, but shall not be less appropriate or more
detrimental than the previous nonconforming use.
R.R. at 7a (emphasis added).
“The burden of proving that a nonconforming use has been abandoned
is on the party so asserting. Therefore, here, [Appellant] had the burden of
demonstrating abandonment. In order to demonstrate abandonment, a party must
show both (1) an intent to abandon, and (2) actual abandonment.” PAJ Ventures, LP
v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891, 898 (Pa. Cmwlth. 2020)
(citation omitted).
The PAJ Ventures Court explained:
Where . . . an abandonment provision is provided in the
ordinance, such a provision “creates a presumption of
the intent to abandon the use by the expiration of the
designated time.” Latrobe Speedway [v. Zoning Hearing
Bd. of Unity Twp.], 720 A.2d [127,] 132 [(Pa. 1998)].
Thus, “[a]bsent any evidence to the contrary, the lapse of
the designated time will be sufficient to establish an intent
to abandon the use.” Id. Failure to use a property for a
designated time provided under an abandonment
provision creates a presumption of an intent to
abandon, with respect to that element, which shifts the
shall not be considered discontinued if there is evidence of the
intent on the part of the owner or operator of such use or activity
to continue the said activity or use. Such evidence may include
but is not limited to active attempts to sell or market the use or
activity, the maintenance of any and all required permits and
licenses for said use or activity, and conformance with all applicable
codes and property maintenance ordinances.
Borough Code § 27-202 (emphasis added); https://ecode360.com/14317207 (last visited June 30,
2023). Further, this Court has held: “As applied to nonconforming uses under zoning law, the
word ‘discontinued’ must be read as the equivalent of ‘abandoned[.]’”[] Metzger v. Bensalem
Twp. Zoning Hearing Bd., 645 A.2d 369, 370 (Pa. Cmwlth. 1994). Accordingly, Appellant’s
argument lacks merit.
10
burden to the party contesting the claim of abandonment.
Latrobe Speedway, 720 A.2d at 132; Finn v. Zoning
Hearing B[d.] of Beaver Borough, 869 A.2d 1124, 1127
(Pa. Cmwlth. 2005). Yet, if evidence of a contrary intent
is introduced, the presumption is rebutted[,] and the
burden shifts back to the party claiming abandonment.
Latrobe Speedway, 720 A.2d at 132.
However, it bears emphasizing that failure to use a
property for the designated time in the ordinance only
creates a rebuttable presumption with respect to the
first of the two abandonment elements; the party
asserting abandonment must still satisfy the second
element before the burden shifts to the landowner. See
Finn, 869 A.2d at 1127; Zitelli v. Zoning Hearing B[d.] of
Borough of Munhall, 850 A.2d 769, 772 (Pa. Cmwlth.
2004). “What is critical is that the intention to abandon is
only one element of the burden of proof on the party
asserting abandonment. The second element of the burden
of proof is actual abandonment of the use for the
prescribed period. This is separate from the element of
intent.” Latrobe Speedway, 720 A.2d at 132. Actual
abandonment of a nonconforming use “cannot be ‘inferred
from or established by a period of nonuse alone. It must
be shown by the owner[’s] . . . overt acts or failure to act.’”
Zitelli, 850 A.2d at 772 (quoting Est[.] of Barbagallo v.
Zoning Hearing B[d.] of Ingram Borough, . . . 574 A.2d
1171, 1173 ([Pa. Cmwlth.] 1990)). However, courts
typically will not find actual abandonment when a use
is temporarily discontinued for reasons beyond the
landowner’s control, such as a financial inability of the
owner to carry on due to general economic depression.
PAJ Ventures, 225 A.3d at 898-99 (bold emphasis added).
Jamison testified regarding the yoga studio use’s cessation:
Q. Okay. And the yoga studio, you indicated, operates
seven days a week; is that right?
A. They did. I don’t know if they still do, but they’re out.
Q. And the yoga studio leased the space directly from you?
A. That’s correct.
11
Q. And you were familiar with the terms of the lease?
A. Yes.
Q. Okay. And when did the yoga studio vacate the space?
A. It was the end of June.
Q. End of June of?
A. 2020.
Q. 2020. Okay. So[,] the lease ended in June, at the end
of June of 2020. Do you know when the classes at the
yoga studio stopped?
A. Yeah. I mean, once -- their lease didn’t end. I mean,
they exited. Their lease was for another three years[,] and
they broke the lease.
Q. And why did they break the lease?
A. Because they could no longer operate because of
C[OVID-19]. They couldn’t -- due to the restrictions,
based on you had to be six feet apart, they needed -- they
couldn’t fit enough people in a room to generate enough
income to pay the rent.
Q. Okay.
A. They needed that occupancy of 30 people in a room to
generate the revenue in order to cover the rent, so with the
new rules they couldn’t. Does that make sense?
Q. Yes. So, effectively, they were unable to bring enough
people into the classes to support -- to sustain the rent. Is
that --
A. That’s correct.
Q . -- an accurate statement?
A. Yes.
R.R. at 75a-76a.
12
Appellant argues:
The cumulative testimony indicates that the prior
nonconforming use was discontinued sometime after
February of 2020, but not later than June of 2020.
Jeronimo[s] did not present any witnesses, evidence, or
testimony from the Property’s prior tenant, the yoga
studio, pertaining to when its nonconforming use was
discontinued.[10] [] Jamison testified that the yoga studio
ended its lease early because nobody was going to the
studio. [] Barrist testified that he did not see anybody
attending classes after the first or second quarter of 2020.
[] Rufo testified that he did not see anybody attending
classes after February of 2020.
Appellant Br. at 38.
“It is well[ ]settled that the [zoning hearing board] is the sole arbiter of
witness credibility and evidentiary weight. A zoning hearing board is free to reject
even uncontradicted testimony that it finds lacking in credibility, including
testimony of an expert witness.” Pham v. Upper Merion Twp. Zoning Hearing Bd.,
113 A.3d 879, 893 n.9 (Pa. Cmwlth. 2015) (citation omitted). The ZHB, as fact-
finder, determined that “the yoga studio was in operation . . . up until the last week
of June 2020[,]” R.R. at 16a, and that “[t]he space that the yoga studio occupied has
been empty since July 2020.” R.R. at 17a. Jamison’s testimony alone was
substantial evidence for the ZHB’s conclusion that the nonconforming use was not
abandoned. No presumption of an intent to abandon arose because less than one
year passed between the end of June 2020 and the June 18, 2021 Application date.
Further, the assertion that classes may have ceased prior to the end of June when the
space was vacated does not satisfy the actual abandonment requirement given
Jamison’s testimony that the yoga studio use was “discontinued for reasons beyond
10
Importantly, it was not Jeronimos’ burden to present evidence to show that the
nonconforming use was not abandoned. Instead, it was Appellant’s burden to prove the
nonconforming use was abandoned. See PAJ Ventures.
13
the [lessee’s] control, [resulting from the] financial inability of the [lessee] to carry
on due to [the COVID-19 pandemic restrictions].” PAJ Ventures, 225 A.3d at 899.
Thus, the ZHB did not err by concluding that the nonconforming use had not been
abandoned.
Appellant also contends that the ZHB erred by finding that Jeronimos
satisfied its burden to prove that the proposed nonconforming use was no more
detrimental than the prior nonconforming use. With respect to this burden,
Appellant first claims that the record is “devoid of any [z]oning [a]pplication
detailing the proposed use such that the ZHB would have a legitimate basis upon
which to determine the proposed nonconforming use would be no more detrimental
than the prior nonconforming use. A complete [z]oning [a]pplication would be
necessary to perform such an inquiry.” Appellant Br. at 40. Appellant appears to
imply that because, in its view, the Application detailing such was withdrawn, and
the purported Jeronimos’ Application lacked such detail, it was inadequate. Because
Appellant waived the challenge to the Application’s amendment, this Court
considers the Application as amended. Further, Jeronimos provided Jamison’s and
Tavani’s testimony in support of the Application. Accordingly, Appellant’s
assertion is meritless.
In its decision, the ZHB recounted Jamison’s testimony wherein she
explained that there are 18 on-site parking spaces at the Property. Jamison stated
that the Easement allows her to use 3 parking spaces exclusively on Appellant’s
Property and 29 parking spaces on Appellant’s parking lots. Jamison’s neighbors
use the parking spaces on the Property after 6:00 p.m. and up until 8:00 a.m. in the
morning, pursuant to an easement on the Property. Jamison recounted that there
were at least five or six classes at the yoga studio on a typical workday, held in the
early morning, during lunch hour, and after work hours. She described the yoga
studio as containing two 30-person-capacity yoga rooms on the first floor, along with
14
office space, a kitchen, and a reception area. Every hour on the hour there were
between 20 or 30 people entering and exiting classes. Due to COVID-19
restrictions, the yoga studio was not able to operate because it could not hold 30
people 6 feet apart and, thus, could not generate the revenue necessary to sustain the
rent. Before the COVID-19 pandemic, the parking lot would be full.
Jamison observed that, although the office was the same size space as
the yoga studio, the yoga studio had a greater intensity of use than the proposed
office use, which would have a maximum of 10 to 12 people coming and going.
Jeronimos is an employee research company that performs large scale, online
employee surveys for employers. The research does not involve anyone coming on-
site. Further, half of Jeronimos’ employees work remotely, so there would be fewer
than 12 total employees on the first and second floors. Jeronimos receives deliveries
once a week or less.
The ZHB summarized Tavani’s testimony that, in the one-hour period
from around 5:45 to 6:45,11 there could be as many as 80 people coming from and
going to the yoga studio and it would not be at full capacity. With respect to office
space, Tavani testified that the equation for peak hour is about 1.5 trips for every
1,000 square feet of office space. Tavani explained that, although the Institute of
Transportation Engineers’ (ITE) data suggests 4,000 square feet would only generate
5 peak hour trips,12 when that estimate is doubled, it would still provide for a
tremendous reduction in how much traffic the office use generated at the site.
According to the ITE Parking Generation Manual, an office generates a peak
parking demand of about 2.4 spaces per thousand square feet. Tavani estimated that
the first and second floors would each generate about 10 spaces of parking demand.
He further stated that the parking demand the yoga studio generated was likely
11
It is not apparent from the record whether the time references are a.m. or p.m.
12
Tavani stated that a trip refers to an individual entering or exiting the Property.
15
significantly higher than the office use. Tavani expounded that his data was based
on data that has been consolidated from various regions across the country for an
office use. He asserted that local and empirical data was likely comparable to
national data in terms of usefulness.
As fact-finder, the ZHB was empowered to evaluate Jamison’s and
Tavani’s credibility and to weigh their testimony. Based on this evidence, the ZHB
concluded that the proposed office use is equally appropriate or more appropriate
than the use as a yoga studio, and that the proposed office use is not more detrimental
than the existing nonconforming use.
Appellant argues:
The [trial] [c]ourt [and the ZHB] erred in accepting as fact
the opinions of Jeronimos’[] expert, [] Tavani, in the
absence of substantial evidence in support of such
opinions. [] Tavani did not have any firsthand knowledge
upon which to base his recommendation[,] nor did he have
any empirical data related to the traffic impact of yoga
studios, the Property’s prior nonconforming use. [] Tavani
did not even observe the [the Parking Area] itself until
after he prepared the Tavani [r]eport. [] Tavani, based his
opinions solely upon information supplied to him by
Jeronimo[s]. He also based his opinions upon criteria
established by [Trip Generation Manual] in the ITE, which
contain[s] no data as to the traffic produced by a yoga
studio. In contrast, Appellant’s witnesses, [] Rufo and []
Barrist, both who had offices at Appellant’s Property and
who regularly parked in the [the Parking Area], testified
that the yoga studio never caused an interference with the
[Parking Area].
Appellant Br. at 41.
Generally, a witness may only testify if he/she has personal knowledge
about a matter. See Pennsylvania Rule of Evidence (Rule) 602. However, Rule 602
provides an exception for expert testimony, stating, “[t]his rule does not apply to a
16
witness’s expert testimony under Rule 703.” Pa.R.E. 602 (emphasis added). Rule
703 states:
An expert may base an opinion on facts or data in the case
that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for
the opinion to be admitted.
Pa.R.E. 703 (emphasis added). Thus, the ZHB did not err in considering Tavani’s
testimony. As fact-finder, the ZHB was free to evaluate witness credibility and
weigh the evidence. Substantial evidence supported the ZHB’s conclusion that
Jeronimos satisfied its burden to prove the proposed nonconforming use is no more
detrimental than the prior nonconforming use. This Court discerns no error in the
ZHB’s conclusion.
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
TRDS 441 Hector Associates, LP, :
Appellant :
:
v. :
:
Conshohocken Zoning Hearing : No. 1316 C.D. 2022
Board :
ORDER
AND NOW, this 3rd day of July, 2023, the Montgomery County
Common Pleas Court’s October 17, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge