M. McCloskey v. The ZHB of the Twp. of Rostraver ~ Appeal of: M. McCloskey ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marla McCloskey :
:
v. : No. 1093 C.D. 2020
: ARGUED: May 13, 2021
The Zoning Hearing Board of the :
Township of Rostraver, Edward J. :
Burns, J&J Real Estate, L.P. and :
James Flannery and Kelly :
McCloskey, Tim Kuma, Jackie :
Tonini, Ken Koury and Charlotte :
Kuma :
:
Appeal of: Marla McCloskey, Kelly :
McCloskey, Tim Kuma, Jackie :
Tonini, Ken Koury and Charlotte :
Kuma :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: August 9, 2021
Appellants Marla McCloskey, Kelly McCloskey, Tim Kuma, Jackie Tonini,
Ken Koury and Charlotte Kuma (collectively, Objectors) appeal from the Court of
Common Pleas of Westmoreland County’s (Trial Court) October 8, 2020 order. 1
Through this order, the Trial Court affirmed the Zoning Hearing Board of the
Township of Rostraver’s (Board) May 24, 2019 decision, by which the Board
granted Appellees Edward J. Burns, J&J Real Estate, L.P., and James Flannery’s
1
This order is dated October 5, 2020, as is the opinion to which it is attached, but neither
the opinion nor the order were docketed until three days later. See Notice of Appeal, App. B at 3.
(collectively, Applicants) request to modify a previously granted use variance. After
thorough review, we reverse.
I. Facts and Procedural History
In 1984, Mr. Burns and his wife, Virginia, purchased a 1.75-acre property
(Small Lot) located in Rostraver Township between Finley Road and Interstate 70.
Board’s Decision, Findings of Fact (F.F.) ¶¶1, 5. Mr. Burns then set up a road paving
business on the Small Lot and, in 1990, expanded it by purchasing an adjacent 11.75-
acre property (Large Lot), on which there was a preexisting, 2-story, 2,600-square-
foot office building that housed a trailer sales business. Id. ¶¶1, 5-6. Notably, despite
the non-residential nature of this business, both the Large Lot and Small Lots are
located in the Township’s R-2 residential district. Trial Ct. Op., 10/8/20, at 2. In
1999, the Burnses sought a use variance for the Large Lot, in the form of an
“extension of nonconforming use of construction, office, storage building and
material storage of adjoining property[.]” Board’s Decision, F.F. ¶7; Reproduced
Record (R.R.) at R104.2 The Board granted this use variance, subject to a number of
conditions. R.R. at R106.3
2
Objectors did not adhere to the Pennsylvania Rules of Appellate Procedure’s
requirements for how their Reproduced Record’s pages must be numbered. See Pa. R.A.P. 2173
(“Except as provided in [Pa. R.A.P.] 2174 (tables of contents and citations), the pages of . . . the
reproduced record . . . shall be numbered separately in Arabic . . . followed . . . by a small a, thus
1a, 2a, 3a, etc.”). Nevertheless, for simplicity’s sake, we will use the page numbers provided by
Objectors.
3
These conditions were:
1. No additional businesses permitted.
2. New extension building to be utilized for storage of equipment
and materials relating only to paving business.
3. New building to be constructed and located per drawing
submitted to the . . . Board.
(Footnote continued on next page…)
2
Mr. Burns ran his road paving business for many years before deciding to
retire, and subsequently put both the Large Lot and the Small Lot up for sale. Id. ¶8.
On September 20, 2018, Mr. Burns and Mr. Flannery entered into an agreement of
sale for the Large Lot, the Small Lot, and five other residentially zoned lots that are
not the subject of this appeal, contingent upon obtaining a use variance allowing a
tractor dealership and service center to be operated on these properties. Id. ¶¶2, 9;
R.R. at R108, R117-23. The agreed-upon sale price for all seven lots was a total of
$450,000. R.R. at R117-18.
In September 2018, Applicants filed a use variance application (First
Application) pertaining to all seven properties. Id. at ¶9. The Board denied the First
Application on November 26, 2018, concluding that Applicants had failed to
establish that an unnecessary hardship existed, such that they could not develop these
properties in line with the dictates of the Township’s Zoning Ordinance,4 as well as
that the desired variance would alter the essential character of the surrounding area
and was not the minimum necessary to afford relief. Id.
4. Noise levels to be maintained per . . . [the] Township Ordinance.
5. Area surrounding new or existing structure to be maintained dust
free.
6. No outside shredding of earth materials to be permitted.
7. All outside stored paving materials to be covered.
8. Hours of operation to be conducted from 6:00 a.m. to 9:00 p.m.
Monday thru [sic] Saturday. Emergency work is excluded.
9. No additional structures permitted on property unless in
compliance with existing R[-]2 zoning requirements.
10. Fence in storage area. Fence height to be 6 [feet] to be completed
within thirty (30) days after extension building is completed.
R.R. at R106.
4
Township of Rostraver Zoning Ordinance, Westmoreland County, Pa., as amended
(1995), available at https://ecode360.com/11601653 (last accessed August 6, 2021).
3
Applicants then filed another use variance application (Second Application),
which pertained only to the Large Lot and the Small Lot; in doing so, Applicants
claimed they were merely asking for a modification of the use variance that had been
granted to the Burnses for the Large Lot in 1999. Id. ¶10; R.R. at R100. The Board
then held a hearing on the matter on April 10, 2019, and granted the Second
Application on May 24, 2019, contingent upon Applicants abiding by seven separate
conditions.5 The Board based its decision on several factors. First, the Board noted
several differences between the Second Application and the First Application,
namely: a. the Second Application involved fewer lots (two versus seven); b. the
5
These conditions were:
1. No additional businesses, beyond the existing trailer sales
business and the new tractor and agricultural equipment sales and
service business are permitted.
2. The existing buildings on the Property shall be used only for the
storage of [Mr. Flannery’s] inventory and equipment, repair work
and display area relating to [Mr. Flannery’s] business.
3. The proposed business will maintain noise, vibration, fumes or
odor levels in compliance with the Township Ordinance and will
refrain from activity which produces vibration, fumes, odor or
similar conditions which could adversely affect the adjacent
residential uses[.]
4. The Property shall be maintained in a neat and orderly condition.
5. Other than the display of its retail products for sale, permitted
signage and areas for customers and potential customers to view the
products, no other activity shall take place outside of the
currently[]constructed buildings.
6. No additional structures may be constructed on the Property
unless they are in compliance with the existing requirements of the
R-2 Zoning District.
7. The hours of operation of the proposed tractor sales business shall
be from 9:00 a.m. to 5:00 p.m. three (3) days per week and 9:00 a.m.
to 8:00 p.m. three (3) days per week. There shall be no Sunday hours
of operation.
Board’s Decision, Order ¶¶1-7.
4
Second Application involved modification of an existing use variance, as opposed
to a new use variance affecting a larger footprint; and c. unlike the First Application,
the Second Application did not propose construction of new buildings. Board’s
Decision, F.F. ¶10. Second, the Board found that the Large Lot’s “hilly and uneven
terrain, and abutment with Interstate 70” constituted an unnecessary hardship that
had not been created by Applicants. Id. ¶12. Third, the Board concluded that the
proposed tractor dealership and service center would be less intensive than the Large
Lot and Small Lot’s existing uses, and would not detrimentally impact the
neighborhood in which it would be situated. Id. ¶¶13, 17. Fourth, the Board
determined that the granted modification was the minimum variance necessary to
provide Applicants with suitable relief. Id. ¶14. The Board also reasoned that the
new use would be fully compliant with the conditions it had imposed upon the
Burnses in 1999 that pertained to the original use variance. Id. ¶16. Curiously, the
Board ruled that the new use did not violate the condition imposed in 1999 that “[n]o
additional businesses [are] permitted.” Id. ¶16(a); R.R. at R106. The Board claimed
this was so “because there will be no ‘additional business’ [sic]. The proposed use
replaces the former use for which the variance was granted.” Board’s Decision, F.F.
¶16(a).
Objectors then appealed the Board’s May 24, 2019 decision to the Trial Court,
which took no additional evidence and, on October 8, 2020, affirmed the Board. This
appeal to our Court followed.
5
II. Discussion6
Objectors put forth several arguments for our consideration. However, in
order to dispose of their appeal, we need only address two of them, which we restate
as follows. First, did the Board apply the proper legal standard in determining
whether to grant the desired use variance modification? See Objectors’ Br. at 15-28.7
Second, if the Board did use the correct standard, did it err by concluding that
Appellees were entitled to approval of the Second Application? Id. at 28-41. We
address each question in turn.
With regard to the first issue,8
6
“Our standard of review, where [a court of common pleas] takes no additional evidence,
is limited to determining whether constitutional rights were violated, [whether] an error of law was
committed[,] or whether necessary findings of fact were supported by substantial evidence of
record.” SSEN, Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 208 n.11 (Pa.
Cmwlth. 2002). “By ‘substantial evidence’ we mean such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Valley View Civic Ass’n v. Zoning Bd. of
Adjustment, 462 A.2d 637, 640 (Pa. 1983) (citations omitted).
7
Objectors’ remaining argument, which we do not reach, is that the Trial Court abused its
discretion by declining to take additional evidence, modify the Board’s decision by attaching
additional conditions to the use variance modification, and/or remand to the Board so it could take
additional evidence. See Objectors’ Br. at 41-47.
8
We assume for purposes of this appeal, but do not conclude, that the Board’s May 24,
2019 decision modified the use variance it granted to the Burnses in 1999. We discern nothing in
the evidentiary record indicating that such a modification actually occurred. In addition, none of
the parties identify specifically how the Second Application’s approval modified any of the
conditions attached to the 1999 use variance. Furthermore, authorizing a completely different use
than that allowed through a previously issued variance, as the Board did here, constitutes a
wholesale change, not a modification of that variance.
Even so, it remains that Objectors appear to broadly insist that such a modification did, in
fact, occur. See Objectors’ Br. at 16-17 (“The parties and [the] Court below apparently agree on
the applicable standard of review that applies to this case[,]” i.e., the variance modification
standard articulated in German v. Zoning Bd. of Adjustment, 41 A.3d 947 (Pa. Cmwlth. 2012).).
Thus, the specific issue of whether the Second Application actually modified any of the 1999
(Footnote continued on next page…)
6
[t]he well-established case law of this Court provides:
An owner [that] wishes to obtain a modification of
a condition [attached to a previously granted
variance] . . . can obtain relief if [the owner]
establishes:
(1) Either grounds for traditional variance or
changed circumstances which render the condition
inappropriate; and
(2) Absence of injury to the public interest.
German, 41 A.3d at 950 (citations omitted) (quoting Ford
v. Zoning Hearing Bd. of Caernarvon Twp., 616 A.2d
1089, 1092 (Pa. Cmwlth. 1992)[.] . . . Thus, an owner
seeking relief from a condition attached to an existing
variance may decide whether to demonstrate changed
circumstances or meet the traditional standard for granting
variances. In either case, the owner must also show that
the request to modify the condition is not contrary to the
public interest. As we have explained, this standard
“reflects a respect for the finality of an administrative
body’s initial analysis of a particular set of circumstances
when it decides to grant a variance with conditions, but [it]
also acknowledges that changes in circumstances
sometimes make conditions no longer appropriate.”
German, 41 A.3d at 950.
....
[In other words, a]n owner that does not show changed
circumstances may still obtain modification of a variance
condition by meeting the standard to obtain a new
variance.
S. Broad St. Neighborhood Ass’n v. Zoning Bd. of Adjustment, 208 A.3d 539, 545-
46 (Pa. Cmwlth. 2019) (citations and parenthetical omitted). Here, both the Board
and Applicants insist that the Second Application was evaluated using the traditional
variance test. See Board’s Br. at 7; Applicants’ Br. at 19-21. Therefore, the Board
conditions is not before us. Moreover, given that the Board reviewed the Second Application using
the traditional variance test, as discussed infra, this issue would functionally be moot even if
Objectors had raised it.
7
facially appears to have considered the Second Application in a legally proper
manner.
This prompts us to move to the second question: did the Board correctly apply
the traditional variance test. In this instance, the generally applicable standard for
granting variances is set forth in the Township’s Zoning Ordinance:
The . . . Board shall hear requests for variances where it is
alleged that the provisions of the Zoning Ordinance inflict
unnecessary hardship upon the applicant. The Board may
by rule prescribe the form of application and may require
preliminary application to the Zoning Officer. The Board
may grant a variance, provided that the following findings
are made where relevant in a given case:
(a) That there are unique physical circumstances or
conditions peculiar to the particular property and
that the unnecessary hardship is due to such
conditions.
(b) 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.
(c) That such unnecessary hardship has not been
created by the appellant.
(d) 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 by
development of adjacent property, nor be
detrimental to the public welfare.
(e) That the variance will represent the minimum
variance that will afford relief.
8
Zoning Ordinance § 195-97(5).9
We view this language through the lens of our well-established case law in
this realm.
A variance . . . is issued by a zoning hearing board [and]
is not provided for in the zoning ordinance, but [rather] is
permission to deviate from the ordinance in either the
dimensions of the improvements made to the land or in the
use of the land. A variance is the proper relief where an
unnecessary hardship attends the property; a variance
cannot provide relief where a hardship afflicts the property
holder’s desired use of the land and not the land itself.
Yeager v. Zoning Hearing Bd. of the City of Allentown,
779 A.2d 595, 598 (Pa. Cmwlth. 2001). Although zoning
ordinances are to be liberally construed to allow for the
broadest possible use of the land, the applicant seeking a
variance bears a heavy burden. See Beers ex rel. P/O/A
Beers v. Zoning Hearing Bd. of Towamensing Twp., 933
A.2d 1067, 1069 (Pa. Cmwlth. 2007) (the letter of the
ordinance cannot be disregarded under the pretext of
pursuing the spirit); Borough of Latrobe v. Paul B.
Sweeney, 331 A.2d 925, 927 (Pa. Cmwlth. 1975) (personal
and economic considerations are not sufficient grounds
upon which to base the grant of a variance). The reasons
for granting a variance must be substantial, serious, and
compelling. Valley View . . . , 462 A.2d [at] 640[.]
Nowicki v. Zoning Hearing Bd. of Borough of Monaca, 91 A.3d 287, 291 (Pa.
Cmwlth. 2014). In short, “[a] variance, whether labeled dimensional or use, is
appropriate ‘only where the property, not the person, is subject to hardship[.]’”
Yeager, 779 A.2d at 598 (quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa.
Cmwlth. 1972)) (emphasis in original). Given this, the onus is on the applicant to
firmly establish that “a substantial burden . . . attend[s] all [legally] compliant uses
9
This language is substantially similar to that contained in Section 910.2(a) of the
Pennsylvania Municipalities Planning Code, 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).
9
of the property, not just the particular use [that the applicant has chosen].” Yeager,
779 A.2d at 598 (emphasis in original).
A variance should not be granted simply because such a
grant would permit the owner to obtain a greater profit
from the use of the property. A.R.E. Lehigh Valley
Partners v. Zoning Hearing [Bd.] of Upper Macungie
[Twp.], . . . 590 A.2d 842 ([Pa.Cmwlth.] 1991). Economic
hardship short of rendering the property valueless does not
justify the grant of a variance. BP Oil, Inc. v. Zoning
Hearing [Bd.] of the Borough of Brookhaven, . . . 389 A.2d
1220 ([Pa.Cmwlth.] 1978).
Com. By & Through Dep’t of Gen. Servs. v. Zoning Hearing Bd. of Susquehanna
Twp., 677 A.2d 853, 855-56 (Pa. Cmwlth. 1996). “Where no hardship is shown, or
where the asserted hardship amounts to a landowner’s desire to increase profitability
or maximize development potential, the unnecessary hardship criterion required to
obtain a variance is not satisfied[.]” Soc’y Hill Civic Ass’n v. Philadelphia Zoning
Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012). With regard to use
variances in particular, they “involve[] a request to use property in a manner that is
wholly outside zoning regulations.” Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning
Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth. 2014). At its core, a use variance is
thus narrowly tailored relief from strictures imposed by a zoning ordinance that, in
practice, render a property unusable. What a use variance cannot be, however, is a
mechanism to afford a landowner wide latitude to use their property as they see fit,
regardless of what they are allowed under the terms of the applicable zoning
ordinance. Furthermore, of particular import here is the requirement that
[c]ourts and zoning boards must . . . recognize the legal
effect of an existing variance when considering an
application for a new variance.[] Thus, . . . when a court
applies the traditional standard for variance relief to a
request to modify or remove a condition attached to an
existing variance, the court must consider the use of the
10
property as permitted by the current variance and
associated conditions to be the legally permitted use of the
property from which the owner is seeking a new variance.
S. Broad St., 208 A.3d at 546-47 (footnote omitted).
In this instance, the record shows that Applicants’ efforts to obtain a use
variance modification were based not upon some sort of unnecessary hardship
inherent to the Large Lot and the Small Lot, but rather upon their desire to maximize
both the market value and the development potential of those parcels. During the
course of his testimony before the Board, Mr. Burns made clear that the Large Lot
and the Small Lot constituted his “life savings” and that selling them was
necessitated by his decision to retire. Board Hearing Tr., 4/10/19, at 38-39.
According to Mr. Burns, “You work all your life to save up so much money or
whatever. I kept putting [the money] into the business, kept it going. Now, it comes
time to have the money and retire and take it easy.” Id. Additionally, when Mr. Burns
was questioned about whether he had received any other offers for his properties, he
replied, “I had lots of offers, but they were ridiculous offers. I mean, like maybe
$100,000.00 or $200,000.00. I don’t think it [sic] even got to me.” Id. at 47. Other
than this lay characterization, though, Applicants presented no evidence that these
offers were unreasonable in light of the uses which were already authorized, either
through the Zoning Ordinance or the 1999 use variance, for the Large Lot and the
Small Lot.
We also note that the Burnses specifically applied for a use variance in 1999
that would allow them to use the Property as an “[e]xtension of non[]conforming use
of construction, office, storage building and material storage of adjoining property.”
R.R. at R114. To interpret this 1999 application as seeking broad dispensation to
allow the Property to be used in the future for a purpose that, at the time, had never
been proposed and thus was utterly unknowable to both the Burnses and the ZHB,
11
defies logic. Moreover, construing the ZHB’s decision to grant the 1999 application
as being so open-ended as to allow for a tractor dealership and service center in 2019
would effectively create a massive loophole in the case law governing the issuance
of use variances; were that reasoning to carry the day, zoning ordinances would no
longer control land use to the same degree as they do now, because use variances
would offer a ready-made avenue for hollowing out zoning ordinances’ land use
limitations over time.
Furthermore, the record indisputably shows Mr. Burns managed to
successfully operate his business for years, both before and after he obtained the
1999 use variance. By contrast, there is no evidence that a new owner could not pick
up Mr. Burns’ mantle and continue on with running the now nearly four-decade-old
paving company; indeed, though Mr. Flannery discussed at length his interest in
establishing a tractor dealership and service center, he did not explain how
dispensation to do so was necessitated by the intrinsic characteristics of the at-issue
parcels. As such, while Applicants’ individual and collective goals and desires may
be understandable on a personal level, it does not follow that they were consequently
entitled to have the Board modify the 1999 use variance. Accordingly, the Board
erred by granting the Second Application and the Trial Court erred by affirming the
Board.
III. Conclusion
In light of the foregoing analysis, we reverse the Trial Court’s October 8, 2020
order.
__________________________________
ELLEN CEISLER, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marla McCloskey :
:
v. : No. 1093 C.D. 2020
:
The Zoning Hearing Board of the :
Township of Rostraver, Edward J. :
Burns, J&J Real Estate, L.P. and :
James Flannery and Kelly :
McCloskey, Tim Kuma, Jackie :
Tonini, Ken Koury and Charlotte :
Kuma :
:
Appeal of: Marla McCloskey, Kelly :
McCloskey, Tim Kuma, Jackie :
Tonini, Ken Koury and Charlotte :
Kuma :
ORDER
AND NOW, this 9th day of August, 2021, the Court of Common Pleas of
Westmoreland County’s October 8, 2020 order is hereby REVERSED.
__________________________________
ELLEN CEISLER, Judge