P. Eidson and J.C. Bar Properties, Inc. v. Ross Twp. ZHB and Twp. of Ross

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Eidson and :
J.C. Bar Properties, Inc., :
Appellants :
:
v. : No. 714 C.D. 2017
: Argued: February 6, 2018
Ross Township Zoning :
Hearing Board and :
Township of Ross :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: March 12, 2018
Pamela Eidson (Eidson) and J.C. Bar Properties, Inc. (Developer)
(collectively, Appellants) appeal from an order of the Court of Common Pleas of
Allegheny County (Common Pleas), dated May 4, 2017. Common Pleas affirmed
the decision of the Ross Township Zoning Hearing Board (ZHB), which denied
Appellants’ application for use and dimensional variances (Application). For the
reasons discussed below, we affirm Common Pleas’ order.
I. BACKGROUND
Eidson is the owner of real property (Property) located at 628 Perry
Highway in Ross Township (Township), Allegheny County. The Property is located
at the intersection of Perry Highway and Rochester Road in an R-1 Zoning District,
as defined by Sections 27-902, 27-905, and 27-906 of the Township’s Code of
Ordinances (Ordinance). In the late 1970s, Nancy DiCola, M.D. (DiCola), Eidson’s
aunt and the prior owner of the Property, received conditional use approval to
construct a 3,000 square foot addition on an existing residence located on the
Property for use as a medical office (Medical Office Building). DiCola used the
Medical Office Building for both her residence and her medical practice through
December 31, 1990, and for her residence until she died in October 2000. From
October 2000 through 2007, the Property was vacant and under the control of a
court-appointed conservator. In November 2006, DiCola’s estate deeded the
Property to Eidson. Thereafter, on May 17, 2016, Appellants filed their Application,
seeking, inter alia: (1) a use variance to permit the construction and operation of a
retail CVS pharmacy on the Property, a use that is not permitted in an R-1 Zoning
District; and (2) a dimensional variance to reduce the number of required parking
spaces from 75 to 50.1 The ZHB conducted a public hearing on Appellants’
Application on August 10, 2016.
At the hearing, Appellants presented the testimony of Jason Mitchell
(Mitchell), an employee of Developer. (Reproduced Record (R.R.) at 9a.) Mitchell
testified that Developer is CVS’s preferred real estate development company in
Western Pennsylvania, Central Pennsylvania, and Maryland. (Id. at 9a-10a.)
Mitchell explained that after Developer identified the Property as a potential CVS
location and took the Property through the CVS approval process, Developer met
with the Township to discuss the Property’s history. (Id. at 11a-12a.) At that time,
1
In their Application, Appellants also sought dimensional variances to increase the
maximum widths of the Property’s entrance and exit driveways. Such dimensional variance
requests are not the subject of this appeal, and, therefore, we will not address them in any further
detail.
2
Developer learned of a prior attempt to rezone the Property for commercial use. (Id.)
Through its own research and conversations with the Township, Developer became
aware of certain concerns that had been raised during that prior rezoning attempt.
(Id. at 12a-13a.) Mitchell stated that Developer sought to address those concerns in
its initial design of the CVS and with its presentation to the ZHB. (Id. at 12a-13a.)
Mitchell testified further that the proposed CVS is a 13,225 square foot
building, with a prototypical CVS layout and a single drive-through. (Id. at 14a.) It
will be accessible from both Perry Highway and Rochester Road, however, the Perry
Highway access will be limited to right turns in and right turns out only. (Id.)
Mitchell explained that Developer has proposed only 50 parking spaces for the CVS
because: (1) that is all that is needed; and (2) by reducing the number of parking
spaces, Developer is able to add more green space and buffer areas. (Id. at 14a-15a.)
Mitchell explained further that a typical CVS is open from 8:00 a.m. until 10:00 p.m.
and has four to six employees per shift. (Id. at 16a.) Mitchell stated that the parking
lot will contain LED down-facing lights that will be turned off when the CVS is
closed and deliveries to the proposed CVS will be one time per week.
(Id. at 16a-19a.)
Mitchell also testified that the Property currently contains 3 structures:
(1) the main original house that was built in the early 1900s and is currently vacant
and boarded up (Original Building); (2) a 2-car garage (Garage); and (3) the Medical
Office Building. (Id. at 20a-21a.) Mitchell explained that Developer’s director of
construction inspected the condition of the Medical Office Building to determine
whether it could be rehabilitated for future residential use. (Id. at 21a.) The
inspection revealed that from a mechanical perspective the Medical Office Building
is functionally obsolete. (Id. at 22a.) Mitchell testified further that the HVAC
3
system and hot water heater are in such a state that they would need to be replaced,
the electric system was not working in more than 50 percent of the structure, there
had been temporary plumbing installed on the outside of the walls, and the plumbing
had been turned off to parts of the structure. (Id. at 22a-23a.) The inspection also
revealed that from a cosmetic perspective the Medical Office Building would need
a complete interior renovation down to the studs. (Id. at 23a.) Mitchell stated that
Developer had estimated that it would cost approximately $171,000 to perform the
mechanical and cosmetic repairs. (Id. at 24a.) Mitchell stressed, however, that this
estimate did not include any potential structural damage to the Medical Office
Building. (Id.) The inspection further revealed a potential moisture issue in the
Medical Office Building. (Id.) As a result, Developer obtained an environmental
study, which uncovered the presence of excess moisture and black mold in the
Medical Office Building. (Id. at 24a-26a.) Mitchell explained that in its existing
poor condition, the Property appraised at $135,000. (Id. at 26a-27a.) Mitchell
testified, however, that he did not believe that the Property could be used without
demolishing the existing structures. (Id. at 27a.)
Appellants also presented the testimony of Andrew Schwartz
(Schwartz), the managing principal and lead landscape architect/community planner
for Environmental Planning and Design. (Id. at 32a-33a.) Appellants’ attorneys
hired Schwartz to render an expert opinion regarding the appropriateness of the
requested use and dimensional variances for the construction of a CVS on the
Property. (Id. at 35a, 397a.) Schwartz testified that the assessor’s office labeled the
Original Building as unsound, which basically means that it needs to be demolished.
(Id. at 37a.) Schwartz explained that in addition to the structures, the Property also
4
contains a 20-25 car parking lot, a commercial grade driveway, and commercial
grade lighting. (Id. at 37a-38a.)
Schwartz explained that the development character of Perry Highway
and Rochester Road has changed significantly over the years from large residential
and agricultural uses to commercial uses due to the increase in vehicular traffic.
(Id. at 41a-44a, 47a-48a.) Schwartz indicated that in its 1995 Strategic Plan, the
Township even referred to Perry Highway as a “primary commerce corridor.”
(Id. at 44a, 47a-48a.) Schwartz explained that around that time people were
beginning to recognize this area as mixed-use and not just residential neighborhoods.
(Id. at 48a-49a.) Schwartz also indicated that the Township passed multiple zoning
amendments from 1930 through the present, which included approximately
114 changes of use from residential to commercial. (Id. at 45a.) Schwartz described
these zoning amendments as a piecemeal, reactive approach, where the Township
changed the zoning for a particular parcel or parcels based on a proposal without any
analysis to support the amendment. (Id. at 45a-47a.) Schwartz also explained that
the Township’s 2015 Comprehensive Plan further reinforced that the zoning in this
area “should be oriented more towards mixed[-]use types of districts that have more
flexibility.” (Id. at 52a.)
Schwartz also testified that he identified four hardships affecting the
Property that are sufficient to justify the grant of a use and dimensional variances.
(Id. at 53a, 68a, 74a.) Schwartz stated that the first hardship is the “patchwork” of
non-residential, commercial, and industrial uses surrounding the Property.
(Id. at 53a.) Schwartz stated further that the Property, which is zoned single-family
residential, is “kind of like frozen in time[, where e]verything around it has slowly
changed over time.” (Id. at 53a-54a.) Schwartz also stated that within ¾ of a mile
5
of the Property, there are approximately 96 non-residential, commercial, and
industrial uses, including “anything from auto repair, auto body, to dentist office,
attorney’s offices, restaurants[,]” and a school campus. (Id. at 39a-40a, 53a-56a.)
Schwartz admitted, however, that he did not identify which of those uses were
located in the Township and which of those uses were located within West View, a
neighboring municipality. (Id. at 40a.)
Schwartz testified that the second hardship is the intersection of Perry
Highway and Rochester Road. (Id. at 57a.) Schwartz explained that the current
traffic volume at the intersection of Perry Highway and Rochester Road is a little
less than 22,000 vehicles, with approximately 14,300 vehicles on Perry Highway
and approximately 7,500 vehicles on Rochester Road. (Id. at 39a.) Schwartz
explained further that “22,000 cars at an intersection in a single-family residential
area is an extreme number.” (Id. at 58a-59a.) When asked whether these types of
traffic counts are typical in an R-1 Zoning District, Schwartz stated: “If we were
kind of reworking the zoning map and the fixed point was an intersection of
22,000 cars, low-density residential would not be at that corner. That’s not a
contemporary zoning practice. It doesn’t follow the general rules of real estate.”
(Id. at 66a.)
Schwartz stated that the third hardship is the Property’s nonconforming
use as a medical office. (Id. at 67a.) Schwartz explained that the Medical Office
Building was “a purpose-built commercial building” and converting it back to
residential use will be a hardship. (Id. at 68a.)
Schwartz identified the fourth hardship as the Property’s size.
(Id. at 67a.) Schwartz explained that Eidson has attempted to sell the Property for
residential purposes for years, but has been unsuccessful. (Id. at 64a.) Schwartz
6
opined that the Property is tough to sell because the Property is larger than what
people are looking at in today’s market for a single-family lot and is located on an
intersection with 22,000 vehicles, and the Property is too small to subdivide into
more than 3 single-family homes. (Id. at 64a-66a.) Schwartz also explained that the
Property is unique due to its size and the fact that it has 2 access driveways. (Id. at
67a.)
Appellants also presented the testimony of Charles Wooster (Wooster),
a traffic engineer and the owner of David E. Wooster & Associates, Inc.
(Id. at 75a-76a.) Wooster performed a traffic assessment in connection with
Appellants’ Application. (Id. at 76a.) The traffic assessment evaluated both the
intersection of Perry Highway and Rochester Road and the access driveways to the
proposed CVS (full access on Rochester Road and right turn in/out on Perry
Highway). (Id. at 78a.) Wooster testified that the average daily traffic at the subject
intersection is a little over 14,000 vehicles per day on Perry Highway and
approximately 7,500 vehicles per day on Rochester Road. (Id. at 78a-79a.) Wooster
explained that the traffic is multi-municipality, not just local to the Township.
(Id. at 79a.) When asked whether this is a typical intersection you would see in a
single-family residential area, Wooster stated that people usually want to live on
local roads. (Id.) Perry Highway and Rochester Road are arterial highways, not
local roads. (Id.)
Based on his traffic assessment, Wooster opined that the proposed CVS
would not have any significant impact on the subject intersection.
(Id. at 79a-80a, 94a.) Wooster explained that he generated the anticipated traffic to
the proposed CVS consistent with traffic engineering industry standards, calculated
the capacity and level of service both pre-development and post-development, and,
7
based on the difference between the two, determined that the greatest impact to the
subject intersection would be a 1.2-second delay. (Id. at 80a-81a.) Wooster stated
that the proposed CVS will require highway occupancy permits because Perry
Highway and Rochester Road are both state-owned highways. (Id. at 81a.) Wooster
stated further that he has no doubt that the Pennsylvania Department of
Transportation will issue the highway occupancy permits without the need for any
traffic mitigation because the proposed CVS will not have any significant impact on
traffic conditions. (Id. at 81a-82a.)
Appellants also presented the testimony of Eidson. Eidson testified that
at the time that she became the owner of the Property in November 2006, the
Original Building was already boarded up. (Id. at 97a-98a.) Eidson testified further
that her aunt used the Medical Office Building for her medical practice from
approximately 1980 through December 1990. (Id. at 98a-99a.) Eidson also testified
that her aunt continued to reside in the Medical Office Building until she died in
October of 2000. (Id. at 99a.) Thereafter, the Property passed through a life estate
and was under the control of a court-appointed conservator until November 2006,
when Eidson took ownership. (Id.) Eidson explained that during that
approximately 7-year period, the Property was vacant. (Id.) Eidson described the
Property as “devastation” at the time that she took ownership. (Id. at 100a.) Eidson
stated that the condition of the Property was worse when she acquired it, because
she has tried to make it better. (Id.)
Eidson testified further that she listed the Property for residential sale
in the spring of 2007. (Id. at 100a, 105a.) She explained that the Property has been
on the market consistently since that time except for a period of about 2 years when
she was between real estate agents. (Id. at 101a.) Eidson explained further that the
8
asking price for the Property has always been $2.5 million at the recommendation
of a real estate agent. (Id. at 103a-04a.) Eidson also testified that she has not
received any legitimate written offers for the purchase of the Property, and that the
only offers that she has received have been commercial in nature. (Id. at 102a.)
Eidson indicated that she has resided in the residence portion of the Medical Office
Building since March 2011. (Id. at 103a.) She described the medical office portion
of the Medical Office Building as “unusable.” (Id.) When asked whether the
Property’s deterioration was caused by vandalism, Eidson stated: “It was a
combination. There were a couple break-ins, and pipes froze. And just not upkeep.
Negligence.” (Id. at 104a-05a.) Eidson agreed that the highest percentage of the
damage resulted from a failure to maintain the Property but indicated that it was not
“under her watch.” (Id. at 105a.)
Appellants also presented the testimony of Mike Netzel (Netzel), a
realtor licensed with Keller Williams Realty. (Id. at 108a.) Netzel testified that in
his opinion the Property is not marketable for single-family residential use.
(Id. at 109a.) Netzel testified further that the $135,000 appraised value is not
representative of what the Property is worth as a residential property. (Id.) He
explained: “Appraisers are very handcuffed today by the federal government with
the economic collapse related to my industry. They really put tight constraints on
what an appraiser can and cannot do. They have to go off sale data, proximity; and
the comparable sales aren’t comparable.” (Id. at 109a-10a.) Netzel agreed that the
commercial nature of the intersection of Perry Highway and Rochester Road affects
the marketability of the Property for residential purposes. (Id. at 110a.) He stated
that the Property presents an inherent contradiction because people who are looking
for a residential 1-acre lot are interested in privacy and no matter how far back you
9
build the house, the Property is still located in a heavily congested area.
(Id. at 111a.)
Netzel testified further that he reviewed other residential properties
located within a 1-block radius of the Property and the subject intersection that also
deal with the traffic issue. (Id. at 111a-14a.) Netzel agreed that all of these
properties are in better condition than the Property. (Id. at 116a.) Netzel suggested
that at least some of these properties sat on the market for an extended period and
then sold for less than asking price or were resold some years later for less than the
purchase price—i.e., 742 Perry Highway sat on the market for almost 3 years and
sold for $100,000 less than asking price and a Tudor home located in Wellington
Heights sold for $267,000 in 2009 and $226,000 in 2013. (Id. at 112a-14a.) Netzel
explained that traffic matters and “a home on a busy road is just not where people
are looking to be.” (Id. at 131a.)
When asked what the value of the Property would be if the buildings
were in immaculate condition, Netzel indicated about $250,000. (Id. at 118a-21a.)
Netzel explained, however, that one of the buildings on the Property cannot be
rehabbed and must be knocked down and the Property has “functional obsolescence
out the wazoo.” (Id. at 119a-21a.) Netzel also indicated that without anything on
the Property, he did not believe it was even worth $100,000. (Id. at 122a.) Netzel
believed that the Property would without a doubt be worth more if it was zoned
commercial and not residential. (Id. at 123a.) Netzel also indicated that there is no
chance of obtaining a mortgage on the Property for residential purposes.
(Id. at 125a-26a.) Netzel indicated further that none of the cash investors that he
works with would touch the Property for residential purposes. (Id. at 130a.) He also
stated that as far as rehabbing the Property, the floor plan of the Medical Office
10
Building is “weird” for the residential marketplace, and you would not be able to
obtain financing to perform any rehab. (Id. at 130a-31a.) Netzel, therefore, believed
that the only value and potential future use of the Property would require the
buildings to be demolished. (Id. at 131a.)2
On August 26, 2016, the ZHB rendered its decision, denying
Appellants’ Application. Sometime thereafter, the ZHB issued findings of fact and
conclusions of law in support of its decision, wherein the ZHB made the following
relevant conclusions of law:3
44. Section 27-905 of the [Ordinance] sets forth the
uses that are permitted in the Township’s
R-1 [Zoning] District. Pursuant to Section 27-905
of the [Ordinance,] “retail stores” are not permitted
in an R-1 [Zoning] District.
45. Pursuant to Section 27-905 [of the Ordinance], the
following uses are permitted in the R-1 [Zoning]
District: Single-Family Detached[,] Residential
Day Care Facility[,] Group Home[,]
Forestry/Logging[,] No Impact Home Business[,]
and Residential Accessory Structure. Permitted by
Conditional Use include: [Planned Residential
Development (PRD)], Place of Worship, School,
Day Care Facility, Public Recreational Facility,
Private Recreational Facility, Golf Course,
Emergency and Municipal Facility, Home
Occupation, Accessory Office, and Temporary
Structure. Permitted by Special Exception are:
Public Utility Building and Storage Yard,
2
The Board also heard statements from members of the public in opposition to Appellants’
Application and the proposed commercial development of the Property. (R.R. at 134a-56a.)
3
Although not dated, it appears that the ZHB issued its findings of fact and conclusions of
law after Appellants filed their appeal with Common Pleas. All further references and citations to
the ZHB’s decision shall be considered to be references to the ZHB’s findings of fact and
conclusions of law.
11
Windmill, Parabolic or Satellite Dish Antennas, and
Wireless Communications Antennas or Towers.
46. The [Property] is in an R-1 Zoning District in the
[Township].
47. The proposed use is a 13,225 square foot building
with 50 proposed parking spaces, to be accessible
from Rochester Road and Perry Highway, and is not
permitted in the Township’s R-1 Zoning District as
“Retail Stores” are not permitted in the
R-1 [Zoning] District under Section 27-905 of the
[Ordinance].
....
51. Regarding the first hardship alleged by
[Appellants], the ZHB concludes that the [Property]
is not surrounded by dissimilar and incompatible
commercial, institutional, and industrial uses, due to
alleged rezoning of individual parcels and use
variances, and does not create a substantial hardship
for residential reuse of the site, and states:
a. [The Township’s] first comprehensive
plan was adopted in 1971, which was
followed by a strategic plan
implemented by the Township in
1995;
b. Despite the 1995 strategic plan of [the
Township], in 2011, [the Township]
Board of Commissioners denied
Eidson’s request to rezone the
[Property] from R-1 to C-3, by a vote
of 0-9;
c. In 2015, [the Township] through its
Board of Commissioners adopted a
new comprehensive plan; and,
d. Before the ZHB, [Appellants] argued
that the use of the [Property] as a CVS
store would be consistent with the
Township’s Comprehensive Plan for
pedestrian connection between
neighborhoods and commercial
districts, but [Appellants] have not
12
filed an application for rezoning of the
[Property] to the Board of
Commissioners, based upon that
Comprehensive Plan.
52. [Appellants] also claimed a second hardship, that
the Perry Highway and Rochester Road is a major
regional intersection that has created a de facto
mixed commercial and residential use zoning
district, that is not conducive to single[-]family
residential use. The ZHB rejected this claim for the
following reasons:
a. Section 27-905 and Section 27-906 [of
the Ordinance] provide many
permitted uses in the R-1 [Zoning]
District and [Appellants] did not
provide sufficient evidence that the
[Property] could not be used for a use
permitted in the R-1 [Zoning] District,
. . . including, but not limited to:
Single-Family Detached or Residential
Day Care Facility, or Group Home;
b. The testimony and evidence presented
revealed that Eidson has never
attempted to sell the [Property] for a
residential use;
c. The testimony and evidence presented
demonstrated that Eidson’s asking
price for the [Property] has always
been $2.5 [million]; and,
d. Evidence and testimony presented
revealed that Eidson has used the
[Property] for residential purposes, as
her residence since 2011, a use
permitted in Section 27-905 of the
[Ordinance].
53. The ZHB rejected [Appellants’] clam [sic] of a third
hardship, that the physical conditions of the
buildings on the [Property] constitute substantial
hardship, and provide the following reasons:
13
a. The presence of the parking lot on the
[Property] and the commercial lighting
fixtures lining the main driveway and
parking lot do not limit the [P]roperty
to use as a retail pharmacy;
b. The evidence and testimony presented
revealed that the current deplorable
condition of the [Property] is due to
Eidson’s failure to maintain and
preserve the buildings on the
[Property];
c. The Allegheny County assessed value
of the [Property] has continued to
increase despite its “unsound
condition;” and,
d. The evidence and testimony reveals
that Eidson has been living at the
[Property] since 2011, and has made
no effort to use or maintain the
[Property] as a medical office.
54. The ZHB rejected [Appellants’] fourth claim that
the size of the [Property] creates a unique hardship
warranting the grant of a use variance as
[Appellants] did not provide sufficient evidence that
the [Property] could not be used as another use
permitted in an R-1 [Zoning] District under
Section 27-905 [of the Ordinance], other than a
single-family residence.
55. Before the ZHB, [Appellants] argued that the
development of a CVS Pharmacy allows for
badly-needed and highly-desired sidewalk
construction to take place at and around an
intersection that they opine is heavily travelled and
is not conducive to residential use.
56. The ZHB concludes that a CVS Pharmacy, a
building of 13,225 square foot [sic] with
50 proposed parking spaces, is not tantamount to a
neighborhood pharmacy that pedestrians from the
neighborhood could walk to and from, and would
change the character of the neighborhood.
14
57. Finally, if a variance would otherwise be warranted,
a CVS Pharmacy in a[n] R-1 [Zoning] District does
not represent the least modification of the
R-1 [Zoning] District regulation at issue.
(ZHB Decision at 5-8 (emphasis in original).) Appellants appealed the ZHB’s
decision to Common Pleas. By order dated May 4, 2017, Common Pleas affirmed
the ZHB’s decision. Appellants then appealed to this Court.
II. ISSUES ON APPEAL
On appeal,4 Appellants have raised seven issues for our consideration.
For purposes of discussion and disposition, we have condensed the cognizable issues
as follows: (1) whether the ZHB abused its discretion and/or committed an error of
law by concluding that there was no unnecessary hardship associated with the use of
the Property for residential purposes; (2) whether the ZHB abused its discretion and
committed an error of law by concluding that Eidson created any unnecessary
hardships that may exist with respect to the residential use of the Property;
(3) whether the ZHB abused its discretion and/or committed an error of law by
concluding that the use variance will not alter the essential character of the
neighborhood or be detrimental to the public interest; and (4) whether the ZHB
abused its discretion or committed an error of law by denying Appellants’ request
for dimensional variances to reduce the number of required parking spaces.
III. DISCUSSION
First, we address Appellants’ argument that the ZHB abused its
discretion and/or committed an error of law by concluding that there was no
4
“Where a trial court takes no additional evidence in an appeal from a decision of the
[ZHB], this Court is limited to considering whether the [ZHB] erred as a matter of law or abused
its discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012).
“A [ZHB] abuses its discretion if its findings are not supported by substantial evidence.” Arter v.
Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth.), appeal denied,
934 A.2d 75 (Pa. 2007).
15
unnecessary hardship associated with the use of the Property for residential
purposes. More specifically, Appellants argue that the substantial evidence of record
demonstrates the existence of 4 unnecessary hardships associated with the residential
use of the Property: (1) the Property is located in an area that the Township
previously designated a “Primary Commerce Corridor” and is surrounded by a
“patchwork” of dissimilar and incompatible commercial and non-single-family
residential uses; (2) the Property is located at an intersection that is not conducive to
single-family residential use; (3) the Property’s commercial history and the current
condition of the Original Building, the Garage, and the Medical Office Building;
and (4) the Property’s physical features and size.
“It is well-established that substantial evidence is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion.”
Adams Outdoor Adver., Ltd. v. Dep’t of Transp., 860 A.2d 600, 605 n.8
(Pa. Cmwlth. 2004), appeal denied, 887 A.2d 1242 (Pa. 2005). “When performing
a substantial evidence analysis, this Court must review the evidence in a light most
favorable to the party who prevailed before the fact finder.” Id. This Court “may
not substitute its interpretation of the evidence for that of the [ZHB].” Vanguard
Cellular Sys., Inc. v. Zoning Hearing Bd. of Smithfield Twp., 568 A.2d 703, 707
(Pa. Cmwlth. 1989), appeal denied, 590 A.2d 760 (Pa. 1990). Assuming the record
contains substantial evidence, we are bound by the ZHB’s findings that result from
“resolutions of credibility and conflicting testimony rather than a capricious
disregard of evidence.” Id. The ZHB, as the fact-finder, is free to reject even
uncontradicted testimony it finds lacking in credibility. Id.
A variance is a departure from the exact provisions of a zoning
ordinance. Brennen v. Zoning Bd. of Adjustment of the City of Connellsville,
16
187 A.2d 180, 182 (Pa. 1963). Pursuant to Section 27-605(1) of the Ordinance, the
ZHB may grant a variance if it finds that all of the following conditions exist, where
relevant:
A. 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 this chapter in the neighborhood
or district in which the property is located[;]
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 this chapter 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 applicant[;]
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 or
development of adjacent property, nor be
detrimental to the public welfare[; and]
E. 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.
With respect to the Ordinance’s first requirement for a variance—i.e.,
unique physical circumstances or conditions of the subject property constituting an
unnecessary hardship—this Court has explained:
Whether an applicant is seeking a use or a dimensional
variance, the applicant must, at a minimum, demonstrate
that an unnecessary hardship will result if a variance is
17
denied and that the proposed use will not be contrary to
the public interest. In the context of a use variance, an
applicant must establish that an unnecessary hardship
attends the land with evidence that: (a) the physical
conditions of the property are such that it cannot be used
for a permitted purpose; or (b) the property can be
conformed for a permitted use only at a prohibitive
expense; or (c) the property is valueless for any purpose
permitted by the zoning ordinance. While an unnecessary
hardship can be established by demonstrating that the
hardship falls squarely within one of these three
categories, in practice the evidence presented often does
not fit neatly in one category or another but overlaps.
When evaluating an unnecessary hardship, use of adjacent
and surrounding land is relevant. Once an applicant has
demonstrated that the property is subject to an unnecessary
hardship, the party must also demonstrate that the
conditions are unique to the property; where the hardship
is present in the district as a whole or in a portion of the
district, the proper remedy is re-zoning rather than a
variance.
Nowicki v. Zoning Hearing Bd. of the Borough of Monaca, 91 A.3d 287, 292
(Pa. Cmwlth. 2014) (citations omitted).
With respect to their first allegation of unnecessary hardship,
Appellants argue that they presented substantial evidence to the ZHB that establishes
that any residential use of the Property is impractical because “there are
nearly 120 non[-]residential uses within a ¾ mile radius of the Property.”
(Appellants’ Br. at 44-45.) Appellants argue further that the Township’s history of
spot zoning and granting of use variances “has created a de facto mixed commercial
and residential use zoning district” where the Property is located. (Appellants’ Br.
at 43.) In response, the ZHB argues that Appellants failed to establish that the area
surrounding the Property is a de facto mixed-use zoning district that contains
dissimilar and incompatible commercial, institutional, and industrial uses or that any
such de facto mixed-use zoning district created a substantial hardship for the
18
residential use of the Property. The ZHB argues further that it properly rejected
Schwartz’s testimony regarding the creation of a mixed-use zoning district because:
(1) while Schwartz provided a list of several non-residential uses surrounding the
Property, he did not provide a similar list for residential uses; and (2) Schwartz did
not identify which of the surrounding non-residential uses were located in the
Township and which were located in West View, a neighboring municipality.5
The ZHB’s conclusion that Appellants failed to demonstrate that the
area surrounding the Property is a de facto mixed-use zoning district that contains
dissimilar and incompatible commercial, institutional, and industrial uses or that any
such de facto mixed-use zoning district has created a substantial hardship for the
residential use of the Property is supported by substantial evidence of record.
Schwartz testified that within ¾ of a mile of the Property, there are
approximately 96 non-residential, commercial, and industrial uses.
(R.R. at 39a-40a.) Schwartz admitted, however, that he did not identify which of
those uses were located within the Township and which of those uses were located
within the neighboring municipality of West View. (Id. at 40a.) In addition, it
appears that in his analysis of the surrounding uses, Schwartz ignored the residential
uses surrounding the Property, as there are no residential uses identified in
Appendix 2 of his report. (See id. at 410a-11a.) Thus, Appellants failed to present
a clear picture of the Property’s surrounding uses so that the ZHB could effectively
5
In its brief, the ZHB indicates that Appellants offered testimony relative to the
Township’s 1995 Strategic Plan and 2015 Comprehensive Plan and a 2011 attempt to rezone the
Property in support of their first allegation of unnecessary hardship. In their reply brief, Appellants
essentially respond that Schwartz’s testimony on these matters was for background purposes only
and that by highlighting these facts, the ZHB is attempting to deflect the Court’s attention from
the actual bases for their first allegation of hardship. We do not believe that a discussion of these
matters is necessary to dispose of Appellants’ arguments on appeal, and, therefore, we will not
address these arguments in any further detail.
19
consider whether the Property is located within a de facto mixed-use zoning district.
Furthermore, even if the Property is located within a de facto mixed-use zoning
district, Appellants have not shown how the Property’s location in such a de facto
mixed-use zoning district creates an unnecessary hardship that is unique to the
Property and separate and distinct from any hardship to other residential properties
located within the same de facto mixed-use zoning district. Under those
circumstances, all residential properties will be subject to the same hardships. For
these reasons, we conclude that the ZHB did not abuse its discretion or commit an
error of law by rejecting Appellants’ first allegation of hardship.
With respect to their second allegation of unnecessary hardship,
Appellants argue that they presented substantial evidence to the ZHB that establishes
that the intersection upon which the Property is located is not conducive to
single-family residential use due to high traffic volumes and the arterial character of
Perry Highway and Rochester Road. Appellants argue further that “with a volume
of 22,000 daily trips and 12 turning lanes of traffic[,] . . . the [s]ubject [i]ntersection
. . . has been effectively rendered obsolete for its original residential use.”
(Appellants’ Br. at 45.) Appellants also argue that the hardship created by the
subject intersection is unique to the Property because it is the only property located
within an R-1 Zoning District that contains driveways accessible by both Perry
Highway and Rochester Road. In response, the ZHB argues that Appellants failed
to establish that the subject intersection “is a major regional intersection that is not
conducive to single[-]family residential use” or that the subject intersection created
a substantial hardship for the residential use of the Property. (ZHB’s Br. at 21.)
The ZHB’s conclusion that Appellants failed to demonstrate that the
intersection of Perry Highway and Rochester Road is not conducive to single-family
20
residential use and, therefore, has not created an unnecessary hardship is supported
by substantial evidence of record. Schwartz testified that 22,000 vehicles at an
intersection in a single-family residential area “is an extreme number.”
(R.R. at 58a-59a.) Schwartz also testified that if the zoning map was reworked, he
would not recommend low-density residential at the subject intersection.
(Id. at 66a.) Similarly, Wooster explained that people want to live on local roads,
not arterial highways like Perry Highway and Rochester Road. (Id. at 79a.)
Likewise, Netzel stated that the commercial nature of the subject intersection affects
the marketability of the Property. (Id. at 110a.) Appellants did not, however, present
any evidence or testimony that because of the subject intersection there is no
possibility that the Property can be developed for residential purposes or for any
other purpose permitted in an R-1 Zoning District—i.e., Appellants’ witnesses
appear to have stopped short of this conclusion. Furthermore, while Pennsylvania
courts have “upheld the grant of a variance where no evidence of an attempt to sell
the property was submitted . . . evidence of the owners’ inability to sell his property
has unquestionable probative value.” Valley View Civic Ass’n v. Zoning Bd. of
Adjustment, 462 A.2d 637, 642 (Pa. 1983). The ZHB noted, however, that Eidson
did not establish that she attempted to sell the Property for residential purposes;
rather, she only established that she attempted to sell the Property for an inflated
price tag of $2.5 million. Thus, the ZHB gave no weight to Eidson’s “effort” to sell
the Property.
In addition, Appellants have not established how the intersection of
Perry Highway and Rochester Road creates an unnecessary hardship that is unique
to the Property and separate and distinct from any hardship to other residential
properties located at or around such intersection. Contrary to Appellants’
21
allegations, the fact that the Property has driveways accessible by both Perry
Highway and Rochester Road does not necessarily make the hardship unique to the
Property. Arguably, having a second driveway access to Rochester Road could put
the Property in a better position than other residential properties located on Perry
Highway. For these reasons, we conclude that the ZHB did not abuse its discretion
or commit an error of law by rejecting Appellants’ second allegation of hardship.
With respect to their third allegation of unnecessary hardship,
Appellants argue that they presented substantial evidence to the ZHB that the
Property is practically valueless for residential purposes and that any future use of
the Property will require demolition of the existing structures due to the unsound
condition of the Original Building and the Garage and the uninhabitable condition
of the Medical Office Building. Appellants argue further that the non-conforming
commercial nature of the Medical Office Building and the existence of the
commercial grade parking lot and the commercial lighting fixtures in and of
themselves create a substantial hardship for the residential use of the Property. In
response, the ZHB argues that Appellants failed to establish that the physical
condition of the Property created a substantial hardship for the residential use of the
Property. The ZHB argues further that the record does not support a conclusion that
the presence of the commercial grade parking lot and the commercial lighting
fixtures prevent the Property from being used for a permitted use—i.e., a group
home, a residential care facility, or multiple single-family dwellings. The ZHB also
argues that the record does not demonstrate that the Property would be almost
valueless without the grant of a use variance or that developmental costs rendered
the Property impractical for any residential use.
22
The ZHB’s conclusion that Appellants failed to demonstrate that the
physical condition of the Property constitutes a substantial hardship for the
residential use of the Property is supported by substantial evidence of record.
Mitchell testified that he did not believe that the Property could be used without
demolishing the existing structures. (R.R. at 27a.) Schwartz testified that the
Medical Office Building, which the Court notes is attached to the residence in which
Eidson resides on the Property, was “a purpose-built commercial building” and
converting it to residential use would be a hardship. (Id. at 68a.) Netzel testified
that the buildings on the Property would need to be demolished for the Property to
have value. (Id. at 131a.) Although the ZHB did not set forth its credibility
determinations in writing, we can infer that the ZHB did not find Mitchell’s,
Schwartz’s, and Netzel’s testimony in this regard to be credible. Rather, it appears
that the ZHB relied on the fact that DiCola used the Property solely as her residence
from December 31, 1990 through October 2000 and Eidson has been living at the
Property since 2011, as a basis to conclude that the physical condition of the Property
and the commercial purpose of the Medical Office Building do not preclude the
Property’s use for residential purposes.6 The ZHB also appears to rely on the fact
that Appellants did not consider other potential permitted uses for the Property.
While we acknowledge that “an applicant for a variance for a legally
non-conforming property [need not] eliminate every possible permitted use[,]” it
does not appear from the record that Appellants considered any permitted use other
than single-family residential. Marshall v. City of Phila., 97 A.3d 323, 332
6
Appellants suggest that “the ZHB’s finding that no hardship exists because [Eidson]
currently resides at the [Property] is tantamount to a death sentence[,]” because Eidson is of very
limited means and lives in the residential portion of the Medical Office Building out of necessity.
(Appellants’ Br. at 48.) Appellants, however, have not identified where in the record these facts
can be found. Thus, we will not consider such facts for the purposes of this appeal.
23
(Pa. 2014). This evidence and testimony supports the ZHB’s conclusion that
Appellants failed to demonstrate that the physical condition of the Property
constitutes a substantial hardship for the residential use of the Property. For these
reasons, we conclude that the ZHB did not abuse its discretion or commit an error
of law by rejecting Appellants’ third allegation of hardship.
With respect to their fourth allegation of unnecessary hardship,
Appellants argue that they presented substantial evidence to the ZHB that the
Property is “too large to attract interest from potential buyers who are looking to
construct a single-family home” and “too small to attract interest from modern-day
home developers, who seek significantly (and increasingly) larger acreages of land
to subdivide and develop.” (Appellants’ Br. at 52.) Appellants argue further that it
was improper for the ZHB to reject the Property’s size as a hardship on the basis that
the Property could potentially be used for another permitted use. In response, the
ZHB argues that Appellants failed to establish that the Property’s size created a
substantial hardship for the residential use of the Property because: (1) Appellants
did not provide evidence that the Property could not be used for another permitted
use; and (2) an aerial photo of the area demonstrated that the size of the Property is
consistent with surrounding properties that are being used for residential purposes.
The ZHB’s conclusion that Appellants failed to demonstrate that the
Property’s size created a substantial hardship preventing the residential use of the
Property is supported by substantial evidence of record. Schwartz testified that the
Property is difficult to sell for residential purposes because it is larger than what
people are looking for in a single-family residential lot and it is too small to
subdivide into more than 3 single-family lots. (R.R. at 64a-66a.) Again, while the
ZHB did not set forth its credibility determinations in writing, it can be inferred that
24
the ZHB rejected Schwartz’s testimony in this regard. In addition, Common Pleas
noted that “[a]n aerial view of the area shows that the size of the Property is
consistent with the surrounding properties and other lots are used for residential
purposes[,]” thus establishing that the Property’s size does not create a unique
hardship that is separate and distinct from other neighboring residential properties.
(Common Pleas’ Op. at 5; see also Supplemental Reproduced Record (Supp. R.R.)
at 1b.) As a result, we conclude that the ZHB did not abuse its discretion or commit
an error of law by rejecting Appellants’ fourth allegation of hardship.
For all of the reasons set forth above, we conclude that the ZHB did not
abuse its discretion or commit an error of law by concluding that there was no
unnecessary hardship associated with the use of the Property for residential
purposes.7 Because the ZHB did not abuse its discretion or commit an error of law
in this regard, Common Pleas did not err in affirming the ZHB’s decision and order.
IV. CONCLUSION
Accordingly, we affirm Common Pleas’ order.
P. KEVIN BROBSON, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
7
Given our disposition above, we need not address Appellants’ remaining arguments on
appeal, because, without establishing an unnecessary hardship, Appellants cannot obtain the
requested use and dimensional variances.
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Eidson and :
J.C. Bar Properties, Inc., :
Appellants :
:
v. : No. 714 C.D. 2017
:
Ross Township Zoning :
Hearing Board and :
Township of Ross :
ORDER
AND NOW, this 12th day of March, 2018, the order of the Court of
Common Pleas of Allegheny County is hereby AFFIRMED.
P. KEVIN BROBSON, Judge