W.J. Menkins Holdings, LLC v. Douglass Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
W.J. Menkins Holdings, LLC, :
Appellant :
:
v. :
:
Douglass Township, Berks County :
Zoning Hearing Board, Township of :
Douglass, Dennis Urffer and : No. 1020 C.D. 2018
Judith Urffer : Argued: April 9, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY
JUDGE COVEY FILED: May 2, 2019
W.J. Menkins Holdings, LLC (Applicant) appeals from the Berks
County Common Pleas Court’s (trial court) June 28, 2018 order affirming the
Douglass Township Zoning Hearing Board’s (ZHB) decision granting a variance
subject to conditions and denying the other requested relief. Applicant essentially
presents one issue for this Court’s review: whether the ZHB’s conditions were
authorized and reasonable.1 After review, we affirm in part and reverse in part.
Applicant owns the property located at 1269 Reading Avenue,
Boyertown, Douglass Township (Township), Berks County, Pennsylvania (Property).
Reproduced Record (R.R.) at 7a-9a. The Property is located in the Township’s
1
Applicant presents two issues in its Statement of the Questions Involved: (1) whether the
ZHB’s conditions were authorized and reasonable, and (2) whether the ZHB erred by not applying
Itama Development Associates, L.P. v. Zoning Hearing Board of the Township of Rostraver, 132
A.3d 1040 (Pa. Cmwlth. 2016), to the facts of this case. See Applicant’s Br. at 4. Because these
issues are subsumed in this Court’s analysis of whether the ZHB’s conditions were authorized and
reasonable, they have been combined and will be addressed herein.
Village Commercial (VC) Zoning District, and consists of approximately one and
one-half acres upon which sits a single-family residence and a five-bay garage/office.
Applicant purchased the Property from Randy L. and Debra Keen (the Keens), who
lived in the residence and operated a family-owned commercial electrical contracting
business therefrom in accordance with variances the Township granted in 1986 (to
construct the garage and conduct the business at the rear of the Property) and in 1987
(for a garage addition).2 The ZHB declared in both the 1986 and 1987 orders that any
further expansion of the Keens’ business would require additional variances. See
R.R. at 170a, 174a-175a.
Adjoining the Property to the west is B&W, an asphalt and cement plant
manufacturing facility that employs heavy equipment, cranes and trucks. See ZHB
Finding of Fact (FOF) 27; see also R.R. at 67a-68a, 182a-189a, 235a-236a. “B&W is
a nonconforming use which is an industrial[-]type use[.]” Township Br. App. (ZHB
Op.) at 31. B&W shares a common driveway with Applicant pursuant to an
easement. See FOF 28; see also R.R. at 67a, 182a, 235a.
Applicant leased the Property to W.J. Menkins Hauling (Company) to
operate a quarry trucking business from the Property. The Company owns 25 tri-axle
dump trucks that are used to haul sand and stone from quarries near the Property and
as far away as South Jersey, Maryland and Delaware. The Company’s employees’
activity on the Property consists of entering, removing the dump trucks from their
parking spaces, parking their personal vehicles in the dump truck spaces, leaving in
the dump trucks to obtain and deliver materials, returning the dump trucks to the
Property and departing in their cars.3 According to Applicant’s president William J.
Menkins, III (Menkins), this activity begins at 1:00 a.m. and ends at 4:00 p.m. The
2
When the Keens’ variances were granted, the Property was part of the Township’s Rural
Suburban Residential (R-1) Zoning District.
3
Although the sand and stone materials are not stored on-site, the Company’s dump trucks
parked at the Property sometimes temporarily contain stone. See R.R. at 71a.
2
Company’s 22 truck drivers, a dispatcher and a safety officer work from the Property.
Menkins uses the office in the garage to operate the Company. The Company washes
its dump trucks at the Property, and uses the garage’s five bays to store parts and
make minor mechanical repairs.
After the Township contacted Applicant about zoning violations, on
February 28, 2016, Menkins applied for a zoning permit to change the Property’s use
from Keen Electric to a “hauling business.” R.R. at 207a. On March 23, 2016, the
Township’s Code Enforcement Officer John Wascavage (Wascavage) denied the
zoning permit application because “[a] trucking hauling business is not a permitted
use in the [Township’s VC] Zoning District (#27-405.2 – Uses Permitted by Right).”
R.R. at 205a.
On April 21, 2016, Applicant appealed to the ZHB seeking: (1) review
of Wascavage’s determination; (2) a variance from Sections 27-405 and 27-904 of the
Douglass Township Zoning Ordinance of 2013 (Zoning Ordinance), Zoning
Ordinance §§ 27-405, 27-904; (3) the right to use the Property per Applicant’s vested
rights; (4) the right to use the Property pursuant to the doctrine of equitable estoppel;
(5) the right to use the Property under a variance by estoppel; (6) the right to use the
Property pursuant to Zoning Ordinance Section 27-902; and (7) the right to expand a
nonconforming use. See R.R. at 1a-5a. The ZHB conducted hearings on August 22,
October 31 and December 13, 2016, and February 27, 2017. See R.R. at 63a-168a.
The Township and neighboring property owners, Dennis (Mr. Urffer) and Judith
Urffer (collectively, the Urffers),4 Heather Pilla (Pilla)5 and Theresa Kovach
4
The Urffers reside at 1259 Reading Avenue, which adjoins the Property to the east. See
R.R. at 65a.
5
Pilla owns the residential property located at 345 North Sunrise Lane, immediately
adjacent to and northwest of the Property. See FOF 68; see also R.R. at 65a.
3
(Kovach)6 intervened and were granted party status. The parties submitted proposed
findings of fact, and the ZHB heard oral argument on May 22, 2017.
On June 26, 2017,7 the ZHB granted Applicant’s variance, subject to the
following conditions (Conditions):8
a) [Applicant’s] use is limited to the current size of his
operation which [Applicant] stated is a total of 25 trucks.
Any further expansion shall require application to this
[ZHB] for a variance;
b) The hours of operation of the trucking/hauling use
shall be limited to 6[]AM to 6 PM, Monday through
Friday;
c) There shall be no use of back[-]up alarms or back[-]up
beepers on any vehicles at any time when on the
[Property];[9]
d) There shall be no storage of any quarry materials on the
[Property] at any time;
e) [Applicant] shall promptly apply for and obtain final
land development approval;
f) [Applicant] shall comply with all other applicable
statutes, ordinances, rules and regulations of all
governmental authorities having jurisdiction with regard to
the use and enjoyment of the [P]roperty; and
6
Kovach resides at 1253 Reading Avenue, on a property adjoining the Urffers’ property.
See FOF 110; see also R.R. at 64a.
7
The ZHB issued its written opinion on August 8, 2017. The ZHB’s decision and opinion
were timely based on the parties’ agreement and formal waivers of otherwise applicable
Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53
P.S. §§ 10101-11202, requirements.
8
Three of the five ZHB members agreed with the ZHB’s decision. The two other ZHB
members joined those three members and voted in favor of the ZHB’s findings of fact, discussion
and conclusions of law, but would have denied Applicant variance relief. See Township Br. App.
(ZHB Op.) at 37; R.R. at 290a.
9
During the April 9, 2019 oral argument before this Court, Applicant’s counsel withdrew
Applicant’s challenge to Condition c.
4
g) Within the limitations of the conditions stated herein, the
trucking/hauling use shall function and operate as described
by [Applicant] in the testimony except where such
description contravenes any of these express conditions.
Township Br. App. (ZHB Op.) at 35-36 (emphasis added); R.R. at 289a-290a
(emphasis added). Applicant’s appeal was denied in all other respects. Applicant
and the Urffers appealed to the trial court.10 On June 28, 2018, the trial court, without
taking additional evidence, affirmed the ZHB’s decision. Applicant appealed to this
Court.11
Applicant argues that the ZHB’s Condition b limiting its operating hours
and Condition e requiring Applicant to obtain final land development approval are
unreasonable and/or without authority. Applicant proposes that its appeal from the
land development condition be sustained, and that the variance
should be granted subject only to the condition that
[Applicant] be allowed to use the Property without
limitation concerning the time of operation[,] as long as:
1. No back[-]up beepers are use[d] on the Property
from 6:00 p.m. to 6:00 a.m.
10
The Urffers appealed on the basis that Applicant failed to meet the requirements for a
variance or, in the alternative, that the 6:00 a.m. to 6:00 p.m. limits of Condition b should be 7:00
a.m. to 5:00 p.m. to comply with the Zoning Ordinance provision applicable to similar uses.
11
Where, as here, the trial court does not take additional evidence, our
scope of review is limited to determining whether the [ZHB]
committed an error of law or ‘a manifest abuse of discretion.’ Valley
View Civic Ass[’]n v. Zoning B[d.] of Adjustment, . . . 462 A.2d 637,
639 ([Pa.] 1983). A zoning board abuses its discretion ‘only if its
findings are not supported by substantial evidence.’ Id. at 640.
Substantial evidence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’ Id.
Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 504 n.1 (Pa. Cmwlth. 2018).
Because the Urffers did not timely file a brief with this Court, on January 10, 2019, this
Court precluded them from filing a brief and participating in oral argument.
5
2. Trucks would be parked so that they face the
driveway and move forward in leaving the
Property.
3. No work on any vehicles would take place during
the hours of 8:00 p.m. to 6:00 a.m.
Applicant’s Br. at 41.
Initially, the law is clear that “a zoning hearing board’s authority is
defined by the [Pennsylvania Municipalities Planning Code (MPC)], and the zoning
ordinance.” HHI Trucking & Supply, Inc. v. Borough Council of Borough of
Oakmont, 990 A.2d 152, 160-61 (Pa. Cmwlth. 2010). Here, the Keens’ Property use
as the home base for an electrical contracting business was granted by variance.12 “It
is the function of the [ZHB] to determine whether the evidence satisfies the criteria
for granting a variance.” Marshall v. City of Phila., 97 A.3d 323, 331 (Pa. 2014); see
also Section 901.2(a) of the MPC.13 “Alterations in a use granted by variance require
further action by the zoning authorities. Kensington [S. Neighborhood Advisory
Council v. Zoning Bd. of Adjustment, 471 A.2d 1317, 1320 (Pa. Cmwlth. 1984)].”
Scalise v. Zoning Hearing Bd. of Borough of W. Mifflin, 756 A.2d 163, 167 (Pa.
Cmwlth. 2000). Thus, in light of the law and the 1986 and 1987 variances, Applicant
here properly applied for a new variance.
“A property owner seeking a variance must demonstrate both
unnecessary hardship if the variance is denied and that the proposed variance is not
12
This appeal does not involve a nonconforming use, as Applicant appears to argue.
This Court held in Schaffer v. Zoning Hearing Board of Upper Darby
Township, . . . 378 A.2d 1054 ([Pa. Cmwlth.] 1977), that allowances
by variance do not create nonconforming uses and that a use allowed
by a variance is not one upon which a right of extension may be
erected as though it were a nonconforming use.
In re Pierorazio, 419 A.2d 221, 222 (Pa. Cmwlth. 1980); see also Kensington S. Neighborhood
Advisory Council v. Zoning Bd. of Adjustment, 471 A.2d 1317 (Pa. Cmwlth. 1984).
13
Added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a).
6
contrary to the public interest.” Goldstein v. Zoning Hearing Bd. of Twp. of Lower
Merion, 19 A.3d 565, 569 (Pa. Cmwlth. 2011); see also Section 910.2(a) of the MPC;
Section 1005.2.A. of the Zoning Ordinance (“The [ZHB] shall hear requests for
variances where it is alleged that the provisions of this [Zoning Ordinance] inflict
unnecessary hardship upon the applicant[.]” Zoning Ordinance § 1005.2.A). Section
27-1005.2.C of the Zoning Ordinance specifies, in relevant part:
The [ZHB] may grant a variance provided that all [of] the
following findings are made where relevant in a given case:
(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 condition, and not circumstances or conditions
generally created by the provisions of this [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 this
[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 [applicant].
(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 as granted by the [ZHB] is the
minimum variance that will afford relief and will represent
the least modification possible of the regulation in issue.
Zoning Ordinance § 27-1005.2.C.
7
Section 912.2(b) of the MPC14 further states: “In granting any variance,
[a zoning hearing] board may attach such reasonable conditions and safeguards as it
may deem necessary to implement the purposes of [the MPC] and the [applicable]
zoning ordinance.” 53 P.S. § 10910.2(b); see also Section 1005.2.A of the Zoning
Ordinance (“In granting any variance[,] the [ZHB] may attach such reasonable
conditions and safeguards as it may deem necessary to implement the purposes of this
[Zoning Ordinance] and the [MPC].” Zoning Ordinance § 1005.2.A).
This Court has ruled:
The conditions imposed must bear a reasonable relation
to the protection of the public interest, see VanSciver v.
Zoning B[d.] of Adjustment, . . . 152 A.2d 717 ([Pa.] 1959),
and be reasonable under the facts of the case, see Fifty-
fourth St[.] C[tr.], Inc. v. Zoning B[d.] of Adjustment, . . .
150 A.2d 335 ([Pa.] 1959).
This is an extension of the [zoning hearing board’s] power
to deny a variance where, though a hardship has been
established, it has not been shown to the [zoning hearing
board’s] satisfaction that the proposed use would not be
adverse to the public interest. ‘Since a zoning [hearing]
board has power to deny an application where the evidence
shows that it would be contrary to the public interest, it
necessarily possesses the lesser power to impose
restrictions on the permit designed to eliminate its
objectionable features.’ R. Ryan, Pennsylvania Zoning §
9.4.18 (1970). See Fifty-fourth Street Center, Inc., supra.
[sic] This suggests that, in order to impose conditions, there
must be a determination that the application, if granted,
would be detrimental to the public interest. See R. Ryan,
supra § 9.4.18.
Appeal of Bd. of Supervisors of Solebury Twp., Bucks Cty., 412 A.2d 163, 165 (Pa.
Cmwlth. 1980) (emphasis added).
Moreover,
14
Added by Section 89 of the Act of December 21, 1988, P.L. 1329.
8
once it is determined that the proposed use requires a new
variance, whether conditions should be imposed upon that
new variance must be determined based upon the
circumstances surrounding the newly allowed use. It is of
no moment whatsoever that a prior variance which allowed
a different use may have had fewer or different restrictions.
Scalise, 756 A.2d at 168.
Here, the ZHB determined based on substantial record evidence that the
Keens’ use15 and the permitted existence of a 3,200-square-foot 5-bay garage/office
behind the Property’s residence, and the location adjacent to both B&W (with which
it shares a driveway) and residences constitutes unique physical circumstances
peculiar to the Property that Applicant did not create and which do not lend
themselves to another permitted use in the VC Zoning District.16 See ZHB Op. at 31-
32. The ZHB declared, in relevant part:
[A] majority of the [ZHB] believes that the existing location
and configuration of the [Property] and possible limitations
on reasonable use of existing structures warrants variance
relief . . . ,[17] especially since both prior [ZHB] decisions
15
[Applicant’s] entitlement to use the [P]roperty in a manner other than
that permitted by the ordinance arose by virtue of the [Keens’ 1986]
variance, as expanded by the variance issued in 198[7]. . . . [T]he
right to use in conformance with these variances runs with the land,
insofar as it is not a right limited to only the [Keens].
Scalise, 756 A.2d at 166-67.
16
The following uses are permitted by right in the Township’s VC Zoning District: single-
family, detached dwellings; two-family structures; general agricultural uses; retail sale of goods and
services, excluding adult businesses; eating and drinking establishments excluding drive-through
facilities and fast food restaurants; retail bakery or confectioner; professional offices; multiple use
structures; houses of worship; bed and breakfasts; personal and household service establishments
(i.e., barber shops, laundromats, tailors, funeral homes); fire and ambulance stations; fraternal
clubs/lodges; Township buildings/structures; no-impact home-based businesses; forestry activities;
convenience stores or store/service stations; tourist boarding; and ancillary accessory uses or
structures. See Section 27-405.2 of the Zoning Ordinance, Zoning Ordinance § 27-405.2; R.R. at
244a-245a.
17
The ZHB also erroneously referenced that this application involves “changing one
nonconforming use to another.” ZHB Op. at 32; R.R. at 286a.
9
directed [the Keens] to return to the [ZHB] for changes or
expansion.
However, the [ZHB] can only support such relief if the
change in use is conditioned to make it function without
completely changing and overburdening the rest of the
neighborhood.
The [ZHB] chose the [C]onditions it imposed with this goal
in mind. . . .
....
. . . . For the avoidance of [d]oubt the [ZHB] believes all of
these [C]onditions are needed and appropriate. A majority
believes that if these [C]onditions are implemented the
[A]pplicant’s use as a trucking/hauling operation related to
delivering quarry materials can function on this [Property]
without changing the neighborhood and invading the
reasonable use and enjoyment of surrounding properties.
ZHB Op. at 32-34 (emphasis added); R.R. at 286a-288a (emphasis added).
Applicant only appeals from the ZHB’s imposition of Conditions b and
e. Relative to Condition b, which limits trucking/hauling operation hours to Monday
through Friday between 6:00 a.m. and 6:00 p.m., the ZHB ruled:
Hours of operation were and remain one of the central
concerns and [C]onditions of the [ZHB] without which NO
[ZHB] MEMBER would have voted for a variance. Under
Township Code Section 27-741 (R.[R. at] 250a-R.[R. at]
254a)[,] [the Township] prohibits any aspect of quarrying
operations, including transport and delivery except between
the hours of 7[]AM and 5 PM five days per week (See
[Zoning Ordinance] Section[s] 27-741[.]B[](7) and [B](9)
(R.[R. at] 251a). A majority of the [ZHB] supported 6 AM
to 6 PM Monday through Friday[,] but no operations
outside those time frames.
ZBH Op. at 35; R.R. at 289a.
Applicant’s noise study/abatement expert Robert G. Richardson
(Richardson) testified that he performed a study of the heavy vehicle noise from the
Property on October 26, 2016 between 4:48 a.m. and 5:44 a.m., during which he
10
measured the sound made by two Company dump trucks idling and then revving
louder every thirty seconds to simulate trucks accelerating and leaving the Property.18
See FOFs 60-62. Richardson concluded that the noise levels produced in that process
were below 60 decibels at four locations, which complied with Section 27-708.B of
the Zoning Ordinance (Noise and Vibration Control), Zoning Ordinance § 27-708.B.
See R.R. at 201a-204a. However, Richardson acknowledged that his study did not
measure for air brakes, back-up beepers, trucks moving on gravel, or driver gear-
shifting techniques/revolutions per minute (RPMs), and he admitted that the decibel
levels would increase as the number of simultaneously operated trucks increased. See
FOFs 63-64. Accordingly, the ZHB questioned whether the simulation recreated the
actual noise created by the Company’s operation, see FOF 66, and further declared:
The [ZHB] accepts at face value the results reported by
[Richardson] for the one day he studied, but the [ZHB]
believes far more weight should be placed on the testimony
of neighbors who live within close proximity to the
[Property], than to the test studies done on one particular
day for a 56[-]minute period of time, and therefore does not
put great weight on [Richardson’s] testimony.
FOF 67.
The ZHB considered credible testimony provided by the Urffers’ land
planning, subdivision and zoning expert Joseph Zadlo (Zadlo) that the neighborhood
around the Property was substantially rural, consisting mostly of farmland, woodland
and scattered single-family homes. See FOFs 95, 99. The ZHB deemed credible Mr.
Urffer’s testimony that the Keens’ electrical contracting business consisted of three
employees using two small vans, and a Kubota front-end loader (all of which were
stored in the garage except when in use), that the area closest to the rear of the
Urffers’ property was never used for the Keens’ business, and that no noise emanated
18
Richardson’s test used two dump trucks because Menkins informed him that no more than
two dump trucks leave the Property at any given time. See R.R. at 105a-106a, 110a, 201a.
11
from the Property during the Keens’ use and occupancy.19 See ZHB FOF 19, 22-23,
26, 101-103, 109. Zadlo confirmed that the Keens’ operation and the Company’s
operation on the Property were not of the same type. See FOFs 97-98.
Mr. Urffer stated that the dump truck engines run approximately 15
minutes before leaving, and the idling and beeping back-up alarms wake them at
night/early morning, beyond the hours that Applicant claims the Company operates.
See FOF 107. The Urffers logged times and frequency of the Company’s trucks
leaving the Property, which reflect that they left on May 4, 2016 as follows: three at
1:08 a.m., two at 1:24 a.m., one at 1:28 a.m., two at 1:41 a.m., one at 2:48 a.m., one at
3:13 a.m., one at 3:19 a.m. and one at 3:37 a.m. See FOF 105; see also R.R. at 218a.
On August 15 (overnight to) August 16, 2016, the Urffers recorded the following
truck departures: 9:00 p.m., 9:25 p.m., 10:15 p.m., 10:25 p.m., 10:45 p.m., 12:14
a.m., 12:20 a.m., 12:40 a.m., 12:50 a.m., 1:10 a.m., 1:26 a.m., 1:40 a.m., 2:35 a.m.,
2:48 a.m. and 3:19 a.m. See FOF 105; see also R.R. at 219a.
The ZHB found credible Pilla’s testimony that the Company’s operation
on the Property has changed her home’s outdoor environment. See FOFs 69, 74.
Specifically, Pilla cannot leave her windows open at night because she hears ongoing
truck noise, including back-up beepers, and men arguing and screaming emanating
from the Property. See FOF 70.
The ZHB also declared credible neighbor David Boric’s (Boric)
testimony that, in 2016, he heard trucks and people talking at all hours.20 See FOFs
72, 74. Boric recorded metal banging, trucks running and men working on trucks
between 1:00 a.m. and 5:00 a.m. on at least thirteen occasions between December 19,
2016 and January 19, 2017. See FOFs 72-73. Boric lamented that spring 2017 will
The ZHB did not find Menkins’ testimony on the same subject credible. See FOF 25.
19
20
Boric lives in the residential property immediately behind and to the north of the Property.
See FOF 71.
12
be the first time in 20 years that he would have to keep his windows closed. See FOF
73.
Because substantial record evidence supported the ZHB’s determination
that noise from the Company’s operation of its dump trucks on the Property has
negatively impacted the surrounding property owners, the ZHB was authorized to
impose reasonable conditions necessary to minimize or neutralize the intrusion on the
neighborhood. Solebury Twp. In particular, the ZHB may impose reasonable
limitations on operating hours. See Scalise; Appeal of U.S. Aluminum Corp. of Pa.,
553 A.2d 1046 (Pa. Cmwlth. 1989). Since Applicant’s principal use is permitted in
the Township’s General Industrial (GI) Zoning District, to support Condition b, the
ZHB referenced Sections 27-741.B(7) and (9) of the Zoning Ordinance,21 which
authorizes quarrying/mining/extraction-related industries, including deliveries to and
from the sites, between 7:00 a.m. and 5:00 p.m., Monday through Friday. See Zoning
Ordinance §§ 27-741.B(7), (9).22 See Zoning Ordinance § 27-708.B. Based upon the
circumstances presented in this appeal, the ZHB was more generous with Condition
b.
Applicant’s hauling business is not a permitted use in the VC Zoning
District. Condition b addresses the concerns expressed by the experts and the
21
Quarrying, mining or extractive operations and storage, maintenance and repair of quarry
vehicles are uses permitted by special exception in the Township’s GI Zoning District. See Zoning
Ordinance § 27-408.4.A, E.
22
This Court acknowledges that Section 27-708.B of the Zoning Ordinance already
prohibits continuous noise in excess of the maximum permissible sound pressure levels (in decibels)
at the Property line along residential district boundaries: 63 between 10:00 p.m. and 6:00 a.m.; 71
between 6:00 a.m. and 10:00 p.m. (11:00 p.m. Friday and Saturday). Applicant declares that since
Section 27-708.B of the Zoning Ordinance already imposes noise restrictions on Applicant’s
operation, Condition b is unreasonable. However, the ZHB possesses the authority to condition the
variance to limit or eliminate any adverse impact on the neighbors. Solebury Twp. The ZHB
determined that limiting Applicant’s operation to certain hours is necessary to protect the
community regardless of whether noise from the operation specifically violates the noise ordinance.
Because substantial record evidence supports the ZHB’s conclusion, Condition b is reasonable.
13
neighbors about noise from the equipment use and the time of day it is used.
Conditioning the variance by limiting Applicant’s operating hours makes it more
compatible with the VC Zoning District. Because Condition b is consistent with the
Zoning Ordinance/MPC-imposed authority to safeguard the public’s health, safety
and welfare, and is supported by the record evidence, it is reasonable and the ZHB
did not abuse its discretion by imposing it.23
Relative to Condition e requiring Applicant to obtain land development
approval, the ZHB stated:
A majority of the [ZHB] also felt strongly that Applicant’s
operation required a thorough and approved land
development plan. The [ZHB] was particularly concerned
about the washing of trucks, water run[-]off, buffering,
screening and other controls that a land development plan
would address. Although the [ZHB] leaves actual plan
review to the Township and the Planning [C]ommission, the
[ZHB] hopes that waivers are not granted which would
nullify the concerns the [ZHB] believes would be addressed
in a land development.
ZHB Op. at 35; R.R. at 289a. The ZHB found credible Mr. Urffer’s concern that
Applicant’s truck washing takes place wherever the dump trucks are parked, and the
water run-off therefrom may contaminate his property. See FOF 108. Kovach also
described her worries about Applicant’s expansion and water run-off because the
Property partially drains to her property. See FOF 110.
However, “‘speculation does not amount to substantial evidence.’” Frey
v. Unemployment Comp. Bd. of Review, 589 A.2d 300, 303 (Pa. Cmwlth. 1991)
(quoting Bobchock v. Unemployment Comp. Bd. of Review, 525 A.2d 463, 465 (Pa.
23
Applicant argues that the ZHB should have applied this Court’s holding in Itama to the
facts of this case. Therein, this Court declared that an increase in the intensity of a prior
nonconforming use, such as variations in the types of vehicles and hours of operation, did not
justify a finding of a new or different use. However, in the instant appeal, the Court is called upon
to examine a new use variance, not a change in a lawful nonconforming use. Because the law and
circumstances are distinguishable, Itama is inapposite.
14
Cmwlth. 1987)). Further, Section 27-405.6 of the Zoning Ordinance states: “In
accord with Township Subdivision and Land Development Regulations [Chapter 22]
and the requirements of the [MPC], a land development plan is required for
improvement to any lot, parcel, or tract of land. Municipal review and approval of
the land development is required prior to issuance of any permits.” Zoning
Ordinance § 27-405.6. Finally, the ZHB acknowledged that it lacks the authority to
require Applicant’s compliance with land use development regulations as a variance
approval condition. Accordingly, because Condition e is not supported by the Zoning
Ordinance/MPC or the record, it is not reasonable, and the ZHB abused its discretion
by imposing it.
Based on the foregoing, we affirm the trial court’s decision insofar as it
upholds the ZHB’s imposition of Condition b, and reverse the trial court’s decision as
to Condition e.
___________________________
ANNE E. COVEY, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
W.J. Menkins Holdings, LLC, :
Appellant :
:
v. :
:
Douglass Township, Berks County :
Zoning Hearing Board, Township of :
Douglass, Dennis Urffer and : No. 1020 C.D. 2018
Judith Urffer :
ORDER
AND NOW, this 2nd day of May, 2019, the Berks County Common
Pleas Court’s (trial court) June 28, 2018 order is affirmed insofar as it affirms the
Douglass Township Zoning Hearing Board’s (ZHB) imposition of variance condition
(Condition) b. The portion of the trial court’s order that upheld ZHB Condition e is
reversed.
___________________________
ANNE E. COVEY, Judge