RAV Collision Services, Inc. v. ZHB of the Borough of Hatboro ~ Appeal of: L.T. Doyle ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
RAV Collision Services, Inc. :
:
v. : No. 1685 C.D. 2019
:
Zoning Hearing Board of the Borough :
of Hatboro :
:
Appeal of: Laura T. Doyle, Executrix of :
the Estate of Joseph J. Doyle, Deceased :
RAV Collision Services, Inc., :
:
Appellant :
:
v. : No. 1886 C.D. 2019
: Argued: March 15, 2021
Zoning Hearing Board of the :
Borough of Hatboro :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 15, 2021
In this land use appeal, RAV Collision Services (Applicant) and Joseph
Doyle (Owner)1 appeal the order of the Montgomery County Court of Common
1
When the appeal was filed, Owner was Joseph Doyle. Mr. Doyle died on October 20,
2020, while this appeal was pending. Per Pa. R.A.P. 502(a), this Court granted Owner’s
application to substitute Laura T. Doyle, Executrix of the Estate of Joseph Doyle, and to amend
the caption of the appeal at 1685 C.D. 2019.
Pleas (trial court) that denied their appeal of, and upheld the decision of, the Zoning
Hearing Board of the Borough of Hatboro (Board), which denied Applicant’s land
use application and variance request to operate an automobile repair shop on
Owner’s property in the Borough of Hatboro, Montgomery County (Borough), as a
continuation of Owner’s nonconforming use.2 For the reasons that follow, we
affirm.
I. Facts and Procedural Background
In 2018, Applicant filed an application seeking a determination that its
proposed use of Owner’s property to operate an automobile repair shop is a
continuation of Owner’s nonconforming use to operate a machine sales business.
Owner purchased the property in 1983, and he operated Joseph J. Doyle Machine
Tool Sales, Inc., a heavy equipment sales business, on site since that time. When he
bought the property, machine sales were a permitted use in the HI-Heavy Industrial
District. In 1985, the Borough enacted amendments to its zoning ordinance, which
included creation of the O-Office District where Owner’s machine sales business is
located. Owner’s machine sales business was no longer a permitted use in this
district, but he was permitted to continue operation as a preexisting nonconforming
use.3
It appears that a second notice of appeal from the trial court’s order dated October 10,
2
2019, was filed in the trial court, but never transmitted to this Court in accordance with Pa. R.A.P.
905(b). By Order of Court dated March 12, 2021, the appeal of RAV Collision Services, Inc. was
docketed at 1886 C.D. 2019, and the appeals docketed at 1886 C.D. 2019 and 1685 C.D. 2019
were consolidated.
3
Section 27-2101(1) of the Borough of Hatboro Zoning Ordinance of 1985 (zoning
ordinance) provides for the continuation of nonconforming uses as follows:
(Footnote continued on next page…)
2
Beginning in 2014, Applicant leased property across the street from
Owner’s building, where it operates an automobile repair shop. Applicant’s business
grew and it desired additional space to expand its business, which it sought by
securing a lease to use Owner’s property. Because an automobile repair shop is not
a permitted use on Owner’s property, Applicant sought a determination from the
Board that its automobile repair business is a lawful continuation of Owner’s
machine sales business. Applicant relied on the description of “Automotive and
allied sales and services” (automotive and allied sales and services) in the zoning
ordinance to support its application.4
§ 27-2101. Nonconforming Buildings, Structures, and Uses.
1. Continuation. Any lawful building or other structure, any
lawful use of a building or other structure or land, existing on
the effective date of this chapter, which does not conform with
the provisions of this chapter, shall be considered a lawful
nonconforming building, structure, or use, and may be
continued except as otherwise provided herein.
Borough of Hatboro, Pa. Zoning Ordinance, §27-2101(1)(1985).
4
Section 27-1502(C)(7) of the zoning ordinance describes prohibited uses in the HI-Heavy
Industrial District as follows:
§ 27-1502. Use Regulations for HI Heavy Industrial District and
HI-MU Heavy Industrial-Mixed Use District.
***
C. Prohibited Uses.
***
(7) Automotive and allied sales and services. Service stations,
repair shops, used car and truck sales, automotive parts and
accessories, new car and truck sales, boat and marine sales, trailer
(Footnote continued on next page…)
3
The Board held public hearings on Applicant’s request on December
12, 2018, and January 9, 2019. Applicant offered the testimony of Owner, Mr.
Doyle, and Applicant’s representative, Anton Kozlov, along with documentary
exhibits. The Borough offered the testimony of Borough Zoning Officer Michael
Italia (Borough Zoning Officer), along with documentary exhibits. Several
neighbors who objected and submitted comments to Applicant’s request were also
present at the hearings. Applicant submitted several letters of support from
customers and business owners.
Owner testified that he bought the property in 1983 and that he has
operated a machine sales business continuously since that time. Owner described
his business as follows: “We accept machinery being delivered from different
manufacturers across the country. Also, from Europe and Japan. We accept them.
Sometimes hold them for a week or a month until a customer would be ready to
install them. We then truck them to the final destination and did an installation.”
Reproduced Record (R.R.) at 102a. Owner clarified that his business involved heavy
equipment sales, but did not include “machining” because it does “not manufacture
anything.” Id. at 107a.
Anton Kozlov testified as one of the owners and a representative of
Applicant. Kozlov testified that he operates an automobile repair business, focusing
on body work and painting, from the property located across Springdale Avenue
from Owner’s property. Kozlov described his business as “dealing with everything.
sales, heavy equipment, and/or farm implement sales, bicycle and
motorcycle shop.
Borough of Hatboro, Pa. Zoning Ordinance, §27-1502(C)(7)(1985).
The same description of automotive and allied sales and services is also found in Section 27-
1302(1)(C) of the zoning ordinance as a permitted use in the HB-Highway Business District.
4
I mean people call me, they got in an accident. We have a picture the other day the
car got in an accident. It looks like a mess. So the car gets totaled. It comes to us.
It is sitting there.” R.R. at 112a. Applicant’s proposed use of Owner’s property is
to park finished cars inside and around the building after he has completed repair or
painting, allowing him to keep the work area at Applicant’s current facility clear.
Id. at 125a-26a. Kozlov explained, “Currently, like I said, I spent and my guys spent
twenty to thirty hours a week moving cars around. So as soon as we get another
property for these cars, as soon as we can get [Owner’s] property, we can move these
cars a lot easier.” Id. at 134a. Kozlov believed up to 50 cars could be moved from
the street if Applicant was permitted to use Owner’s property. Id. at 126a-27a.
Kozlov testified further that Applicant entered into a commercial lease to rent a
parking lot elsewhere in the Borough for the purpose of parking and storing cars. Id.
at 209a-10a; 214a. Kozlov stated that “with the new lease and with the new property
with 7,500 square feet, we will be able to manage and keep both properties very
clean so it’s not going to cause irritation to the neighbors, causing traffic et cetera.”
Id. at 232a.
The Borough Zoning Officer testified that he was familiar with both
properties in this appeal. He stated that an automotive repair business would be a
permitted use in the HB-Highway Business District under the current zoning
ordinance. R.R. at 144a-46a; 150a-51a. The Borough Zoning Officer confirmed
that although Owner’s machine sales business is not a permitted use in the O-Office
District under the current zoning code, it is a lawful nonconforming use based on
Section 27-2101 of the zoning ordinance. Id. at 149a-50a.
Applicant presented testimony and several letters of support for his
proposal from neighboring businesses that were admitted into evidence. R.R. at
5
156a; 257a-61a. Several neighbors residing near Owner’s property testified in
opposition to Applicant’s request, outlining their concerns regarding truck traffic,
parking difficulties, noise and odor hazards, and other concerns stemming from
Applicant’s auto repair business. Id. at 159a-86a.
During the January 9, 2019 hearing, in response to the Board Chair’s
question about the difference between Owner’s and Applicant’s use of their
properties, Applicant’s counsel replied as follows: “On their face, yeah. They’re
not going to have the same customers. They are selling different equipment.
They’ve got automotive repair, and he’s selling farm equipment.” R.R. at 223a-24a.
However, Applicant argued that because both uses are contained in the same zoning
ordinance classification of automotive and allied sales and services, Owner should
be permitted to continue his lawful nonconforming use by leasing his property to
Applicant to perform auto repairs.
On February 13, 2019, the Board issued a decision denying Applicant’s
request to operate his automotive repair business on Owner’s property as a
continuing nonconforming use. The Board also denied Applicant’s request for
alternative relief in the form of a variance. R.R. at 528a-39a. The Board’s decision
included detailed Findings of Fact and Conclusions of Law. Id. Contrary to
Applicant’s and Owner’s assertions, the Board concluded: “The proposed use as an
automotive repair shop use is not a continuation of an existing nonconforming use
as under Zoning Ordinance 27-2101.” Id. at 538a. Applicant’s proposed use “does
not satisfy the requirements for a pre[]existing nonconforming use because the
proposed use as an automotive repair business is entirely different than the ongoing
and continuing use as a machine shop.” Id. at 534a. Further, because the Borough
zoning ordinance “does not contain a ‘change of use’ provision” which would allow
6
“a nonconforming building or use to be changed to another use of the same class or
character that existed at the time the property use became nonconforming,”
Applicant’s change of use proposal is not supported by the Borough zoning
ordinance. Id. at 535a-36a.
As to Applicant’s request for alternative relief in the form of a variance
from Section 1002(1) of the zoning ordinance to permit its auto repair business to
operate in the O-Office District, the Board concluded that neither Owner nor
Applicant had met the heavy burden to grant a variance, and they offered “no
substantial, serious or compelling” reasons to support granting a variance. R.R. at
538a. The Board explained that variances may be granted when all of the
requirements under Section 910.2(a) of the Pennsylvania Municipalities Planning
Code (MPC)5 are met. The Board concluded that Applicant failed to present
5
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(a). Section 910.2(a) of the MPC provides that all of the following five
conditions must be met to permit the grant of a variance:
(1) That there are unique physical circumstances or conditions,
including irregularity, narrowness, or shallowness of lot size or
shape, or exceptional topographical or other physical conditions
peculiar to the particular property and that the unnecessary hardship
is due to such conditions and not the circumstances or conditions
generally created by the provisions of the zoning ordinance in the
neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there
is no possibility that the property can be developed in strict
conformity with the provisions of the zoning ordinance and that the
authorization of a variance is therefore necessary to enable the
reasonable use of the property.
(3) That such unnecessary hardship has not been created by the
appellant.
(Footnote continued on next page…)
7
testimony or evidence to meet any of the elements to satisfy the variance
requirements. The Board stated that Applicant’s request, if granted, “will alter the
essential character of its neighborhood and district,” thus failing to satisfy MPC
Section 910.2(a)(4). The Board found that “testimony from [] Applicant indicated
that his business continues to expand. Such continued expansion of the business
would likely alter the character of the neighborhood.” R.R. at 537a-38a. The Board
also concluded that Applicant failed to show that the requested variance represents
the “minimum variance” that will afford relief, or that it represents the “least possible
modification” of the zoning regulation at issue, as required by MPC Section
910.2(a)(5). The Board found that “[t]he Subject Property could be developed
without the need for obtaining the requested variance.” Id. at 538a-39a.
Accordingly, the Board denied Applicant’s request to permit
continuation of a nonconforming use and denied Applicant’s request for a variance.
R.R. at 539a. Applicant timely appealed the Board’s decision to the trial court,
which affirmed the decision without taking additional evidence. R.R. at 587a.
(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.
8
Applicant then filed an appeal to this Court.6 Owner and the Borough intervened as
of right.7
II. Discussion
Owner presents two issues on appeal. First, Owner argues that the
Board abused its discretion or erred as a matter of law in determining that
Applicant’s proposed use of Owner’s property to operate an automobile repair shop
was not a continuation of Owner’s existing nonconforming use to operate a machine
sales shop. Second, Owner argues that the Board abused its discretion or erred in
determining that Applicant was not entitled to a variance to operate an automobile
repair shop on Owner’s property.
A. Continuation of Nonconforming Use
The parties agree to the following facts. Owner maintains a valid,
nonconforming use at the Property. Owner’s machine sales business qualifies as
automotive and allied sales and services under the zoning ordinance. The parties
also agree that Applicant’s proposed use of the property as an automobile repair shop
qualifies as automotive and allied sales and services under the zoning ordinance.
However, Owner argues that because both machine sales and automotive repair are
contained within automotive and allied sales and services, Owner should be
6
“Because the parties presented no additional evidence after the [Board’s] decision, our
review is limited to determining whether the [Board] committed an abuse of discretion or an error
of law.” Allegheny Tower Associates, LLC v. City of Scranton Zoning Hearing Board, 152 A.3d
1118, 1121 n.3 (Pa. Cmwlth. 2017) (citation omitted).
7
Objectors Michael Potts and Theresa Urban were intervenors below. They are not parties
to this appeal.
9
permitted to lease his property to Applicant for use as an automotive repair shop as
a continuing nonconforming use.
As to the continuation of a nonconforming use, Owner explains that the
proposed use “must be sufficiently similar to the nonconforming use as to not
constitute a new or different use.” Itama Development Associates, LP v. Zoning
Hearing Board of Township of Rostraver, 132 A.3d 1040, 1051 (Pa. Cmwlth. 2016)
(citations omitted). “The proposed use need not, however, be identical to the
existing use; similarity is all that is required.” Id. Owner relies on the following
language from Aviv & Eden Realty, LLC v. City of Philadelphia Zoning Board of
Adjustment (Pa. Cmwlth., No. 129 C.D. 2011, filed November 17, 2011), slip op. at
5:8
The key to determining whether a proposed use is a
“continuance” of a lawful non[]conforming use or a
“change” to a different one is a review of how the
applicable zoning ordinance categorizes uses within the
municipality. If the proposed use is within the ambit of
the classification found in that ordinance, then it is a
continuance of an existing lawful non[]conforming use,
not a new one.
In that case, Aviv sought to legalize the use of its property for an auto
body repair shop in a district that allowed auto repair shops to continue as a
nonconforming use. This Court reversed the City of Philadelphia Zoning Board of
Adjustment’s decision when it held that an auto body repair shop was a use similar
enough to an auto repair shop to justify continuation as a nonconforming use. This
Court held that because auto repair and auto body repair are similar overall uses,
8
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a),
authorizes the citation of unreported panel decisions issued after January 15, 2008, for their
persuasive value, but not as binding precedent.
10
Aviv’s proposed change from auto repair to auto body repair was a lawful continuing
nonconforming use. Aviv, slip op. at 7-8.
Owner further relies on the following cases to support its argument that
machine sales and auto repair uses are similar enough to constitute continued
nonconforming uses when both uses are enumerated in the category of automotive
and allied sales and services. See Mutimer Company v. Wagner, 103 A.2d 417 (Pa.
1954) (converting from an office for sale of real estate to an office for sale of
machinery did not constitute a change in use); Appeal of Supervisors of Upper
Providence Township, 198 A.2d 522 (Pa. 1964) (change from amusement park to a
day camp and swim club was a continuation of a nonconforming use); Lawrence v.
Zoning Hearing Board of Lower Gwynedd Township, 338 A.2d 779 (Pa. Cmwlth.
1975) (change from a dog breeding kennel to a dog boarding kennel was not a
material change in use). Owner cites the testimony of the Borough Zoning Officer
to support its contention that auto repair shops and machine sales shops are similar
uses because they are contained within the same use category of automotive and
allied sales and services. R.R. at 150a-53a.
Applicant’s argument echoes Owner’s argument as to the continuation
of a nonconforming use. Applicant argues that the Board abused its discretion and
erred when it determined Applicant’s proposed use was not a continuation of
Owner’s lawful nonconforming use. Applicant urges that because both heavy
equipment sales (Owner’s use) and auto repair shops (Applicant’s proposed use) are
included in the automotive and allied sales and services category of uses in the
zoning code, Applicant’s proposed use should be considered a continuation of
Owner’s nonconforming use. Applicant argues that because the Borough included
automotive and allied sales and services in its zoning ordinance that each use
11
described under this classification should be construed as continuation of the same
use.
Applicant relies on the Aviv language discussed above and
distinguishes case law cited by the Board. Applicant argues that Hager v. West
Rockhill Township Zoning Hearing Board, 795 A.2d 1104 (Pa. Cmwlth. 2002), does
not apply to this case. In Hager, this Court held that the evolution of a recreational
campground into a campground that provided for seasonal and long-term use was
not a natural expansion of the campground’s lawful nonconforming use. Id.Applicant also argues that 200 W. Montgomery Ave. Ardmore LLC v. Zoning
Hearing Board of Lower Merion Township, 985 A.2d 996 (Pa. Cmwlth. 2009), does
not apply to this case. In 200 W. Montgomery, this Court held that conversion of an
auto service bay to a single bay car wash was not a natural expansion of the gas
station’s lawful nonconforming use.
In response, the Borough argues that the Board’s decision to deny
Applicant’s proposed use was supported by substantial evidence and should be
upheld. The Borough argues that Owner’s and Applicant’s contentions that an auto
repair shop is a continuation or expansion of machine sales is not supported by case
law. The Borough notes that a proposed use must be sufficiently similar to the
nonconforming use but need not be identical. Hanna v. Board of Adjustment of the
Borough of Forest Hills, 183 A.2d 539, 543-44 (Pa. 1962). The Borough opposes
Owner’s and Applicant’s argument that because machine sales shops and auto repair
shops fit under the same general use category of automotive and allied sales and
services, they must be viewed as sufficiently similar to justify continuation of
Owner’s nonconforming use. The Borough argues that machine sales shops and
auto repair shops are not sufficiently similar to support a continuation of the
12
nonconforming use. The Borough argues that to interpret the zoning ordinance in
this manner would lead to an absurd result. If the zoning ordinance was interpreted
in the manner argued by Owner and Applicant, a nonconforming bicycle repair shop,
a permitted use under automotive and allied sales and services, would be permitted
to change to a service station, also permitted under automotive and allied sales and
services, which the Borough argues is an absurd result.
The Borough further responds that in determining whether a proposed
use is sufficiently similar to an existing nonconforming use, the doctrine of natural
expansion must be given effect. The Borough cites Philm Corporation v.
Washington Township, 638 A.2d 388 (Pa. Cmwlth. 1994), to illustrate the doctrine
of natural expansion. In Philm, this Court held that a nonconforming
restaurant/tavern could not expand its use to a new business named “The Fox,”
which featured continuous live go-go dancing, served little food, and no longer
maintained wait staff. Id. The Court held that the chief activity on the property
changed significantly and was not of the same general character as the prior use, and,
therefore, did not qualify as a continuation or expansion of the preexisting
nonconforming use. Id. The Borough also cites Hunterstown Ruritan Club v.
Straban Township Zoning Hearing Board, 143 A.3d 538 (Pa. Cmwlth. 2016), to
further explain natural expansion of a nonconforming use. In Hunterstown, this
Court explained “the right to natural expansion is not unlimited and municipalities
may impose reasonable restrictions on expansion of nonconforming uses.” Id. at
546.
The Borough also notes that its zoning ordinance does not include a
“change of use provision,” which would allow a nonconforming use to be changed
to another use of the same class or character that existed at the time the use became
13
nonconforming. Because the zoning ordinance does not contain a change of use
provision, continuation of a nonconforming use is limited to similar uses only.
Rather than focusing on the Aviv language discussed above, the Borough argues that
Aviv’s holding is inapplicable to this case, where this Court held that an auto body
shop and an auto repair shop are both engaged in the same ultimate use and
utilization of the property to qualify as sufficiently similar uses. Because there are
currently no auto repairs occurring on Owner’s property, the Borough argues that
Owner is not entitled to change its use from machine sales to auto repairs as a
continuation of a nonconforming use.
In this case, neither Owner nor Applicant cited any case law to support
the assertion that a machine sales shop is a sufficiently similar use to an automobile
repair shop use to permit a continuation of a nonconforming use. As this Court held
in Altpa, Inc. v. North Huntingdon Township Zoning Hearing Board, 445 A.2d 1358,
1359-60 (Pa. Cmwlth. 1982), “[t]here is no constitutionally protected right to change
from one nonconforming use to another. Allowance of a change of nonconforming
use is based upon the ordinance and is limited to the ordinance’s terms.” As
explained by the trial court that upheld the Board’s decision, “‘it is the policy of the
law to closely restrict such nonconforming uses and to strictly construe provisions
in zoning ordinances which provide for the continuance of nonconforming uses.’
Hanna[, 183 A.2d at 543].” R.R. at 598a. “Allowing a dissimilar use to continue
on the property ‘could mean an almost indefinite continuance of a nonconforming
use . . . which would be at complete variance with the spirit of the zoning ordinance,
i.e., the gradual elimination of nonconforming uses.’” Id. at 599a (quoting Hanna,
183 A.2d at 544).
14
Because the zoning ordinance in this case does not contain a “change
of use” provision, Owner and Applicant must show that machine sales shop and auto
repair shop uses are sufficiently similar to permit continuance of a nonconforming
use, which they did not. Applicant’s counsel acknowledged before the Board that,
“Doyle has a machine tool shop which we believe is heavy equipment sales under
the Zoning Ordinance. In the commonplace of whether you’re comparing those two
businesses on their face, they don’t look like the same business or the same use.”
R.R. at 221a. Counsel further stated that, “They’re not going to have the same
customers. They are selling different equipment. They’ve got automotive repair,
and he’s selling farm equipment.” Id. at 223a-24a; 264a.
Owner’s reliance on the testimony of the Borough Zoning Officer to
support its contention that auto repair shops and machine sales shops are similar uses
because they are contained within the same use category of automotive and allied
sales and services is misplaced. Id. at 153a. Review of the Borough Zoning
Officer’s complete testimony reveals that although he testified that machine sales
and auto repair appear in the same category of use, automotive and allied sales and
service, he did not agree that the two uses were sufficiently similar to support
continuation of a nonconforming use on Owner’s Property. Id. at 147a-53a.
Owner’s and Applicant’s reliance on language from this Court’s unpublished
opinion in Aviv is not persuasive. Although auto repairs and machine sales uses are
contained in a broader category of uses, here automotive and allied sales and
services, they remain different uses, as Applicant’s counsel admitted.
15
B. Variance
Regarding the variance request, Owner argues that the Board abused its
discretion and committed an error of law when it concluded Applicant’s proposed
use would alter the essential character of the neighborhood or district under MPC
Section 910.2(a)(4). Owner argues that it presented ample evidence that Applicant’s
proposed use would improve the character of the neighborhood or district by
reducing the number of vehicles parked on the street or visible areas of the current
business. Owner also argues that Applicant met the other MPC variance
requirements, but it included no support or evidence regarding these standards.
Applicant did not address the variance issue in its argument.
In response the Borough argues that Owner failed to satisfy any of the
requirements for a variance in MPC Section 910.2(a). The Borough notes that an
applicant’s burden to seek a variance is heavy, should be granted sparingly, and only
under exceptional circumstances. Appeal of Lester M. Prange, Inc., 647 A.2d 279,
283 (Pa. Cmwlth. 1994). The Borough further notes that the reasons for granting a
variance must be substantial, serious, and compelling. Singer v. Philadelphia
Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011). The Borough
argues that Owner failed to present evidence to meet the unnecessary hardship
threshold standard for a variance. Mere evidence that the zoned use is less
financially rewarding than the proposed use is insufficient. Marshall v. City of
Philadelphia, 97 A.3d 323, 330 (Pa. 2014); Taliaferro v. Darby Township Zoning
Hearing Board, 873 A.2d 807, 812, (Pa. Cmwlth. 2005). Unnecessary hardship is
established only where a condition renders a property almost valueless without a
variance. Taliaferro, 873 A.2d at 812. The Borough argues that Owner presented
no evidence that his property would be almost valueless if the variance was not
16
granted. The Borough argues that Owner’s purported hardship is his desire to
maximize development potential to his property, which is insufficient to compel a
variance. The Borough also argues that Owner failed to demonstrate the variance
would not alter the essential character of the neighborhood, that it would not
substantially impair the appropriate use of adjacent property, that it would not be
detrimental to the public welfare, and that the proposed variance represents the
minimum effort to afford relief as required by MPC Section 910.2(a).
As to the variance issue, neither Owner nor Applicant provided
sufficient support for Applicant’s variance request under the five elements required
by MPC Section 910.2(a). Although Applicant testified his proposed use of Owner’s
property would improve the character of the neighborhood by reducing the number
of cars parked on the street, the Board found, “In contrast, testimony from the
Applicant indicated that his business continues to expand. Such continued
expansion of the business would likely alter the character of the neighborhood.”
R.R. at 537a. The Board is free to accept or reject the testimony of any witness, in
whole or in part. Hawk v. City of Pittsburgh Zoning Board of Adjustment, 38 A.3d
1061, 1065 (Pa. Cmwlth. 2012). Therefore, we discern no error in the Board’s
conclusion that Applicant failed to demonstrate the variance would not alter the
character of the neighborhood as required by MPC Section 910.2(a)(4).
Similarly, we can find no error in the Board’s conclusion that Applicant
failed to show that the variance sought is the minimum variance that will afford relief
and will represent the least modification possible of the relevant zoning provision as
required by Section 910.2(a)(5) of the MPC. Owner testified that if he was not
permitted to lease his property to Applicant, he would utilize the space for trucks or
other equipment necessary for his machine sales business, and “something would go
17
in there one way or the other.” R.R. at 109a. We agree with the Board that the
Property could be developed without the need for the requested variance. As a result,
the Board did not abuse its discretion or commit an error of law when it denied
Applicant’s request to continue a nonconforming use on Owner’s property nor in
denying Owner’s variance request
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
RAV Collision Services, Inc. :
:
v. : No. 1685 C.D. 2019
:
Zoning Hearing Board of the Borough :
of Hatboro :
:
Appeal of: Laura T. Doyle, Executrix of :
the Estate of Joseph J. Doyle, Deceased :
RAV Collision Services, Inc., :
:
Appellant :
:
v. : No. 1886 C.D. 2019
:
Zoning Hearing Board of the :
Borough of Hatboro :
ORDER
AND NOW, this 15th day of July, 2021, the order of the Montgomery
County Court of Common Pleas dated October 10, 2019, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge