309 E. Hamilton St., LLC v. Allentown City ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
309 E. Hamilton St., LLC, :
Appellant :
:
v. : No. 1238 C.D. 2018
: SUBMITTED: April 9, 2019
Allentown City Zoning :
Hearing Board :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 1, 2019
The appellant, 309 E. Hamilton St., LLC (Landowner), appeals from
the order of the Court of Common Pleas of Lehigh County (trial court) affirming the
decision of the Zoning Hearing Board (Board) of the City of Allentown (Allentown)
denying its request for a variety of variances from provisions in Allentown’s Zoning
Ordinance (Ordinance). The main object of these variances was to permit
Landowner to convert a vacant warehouse (warehouse) at 128-132 Hamilton Street,
Allentown (subject premises), into 27 dwelling units.
The subject premises, including the warehouse, were purchased by
Landowner in 2015. The subject premises are located in the B-5 Urban Commercial
District (B-5 District) and the Traditional Neighborhood Overlay District. The
warehouse is a three- or four- story building of approximately 24,000 square feet.
The warehouse occupies nearly the entire lot with no area for parking, loading, or
unloading available on the premises or adjacent thereto. It is presently vacant but
with a long history of commercial uses, most recently warehousing. Decades ago it
was used as a meatpacking plant.
In its application, Landowner proposed to use the subject premises for
27 apartment dwellings—25 one-bedroom and 2 two-bedroom units. Landowner
asserted that such use was permitted in the B-5 District in accordance with Ordinance
Section 1301.01.A (relating to permitted residential uses by zoning district) with the
exception of Note DD, from which Landowner sought a variance. Note DD to
Section 1301.01.A provides that “[a]ny residential use shall be limited to the second
floor or higher floor(s).” Landowner also requested a variance from the
requirements of Ordinance Section 1321.01.I.2, which requires as follows: “[o]ff-
street parking spaces for residential uses must be on the same lot as the principal use
or on a directly abutting lot (which may be across an alley) which is in the same
ownership. . . .” Landowner requested that it be permitted to provide required off-
street parking at 330 Hamilton Street, which is approximately 1,100 feet from the
entrance to the subject premises. Landowner also sought a variance from Section
1319.07.E to permit the placement of two signs on two sides of the building.
Landowner included the following alternative prayers for relief:
a. A use or validity variance to provide a reasonable
use of the property.
b. A recognition of the site’s non-conformity with
respect to lot size, lot coverage, setbacks, parking and use.
(Reproduced Record “R.R.” at 3a).
The Board held hearings on the application at two meetings, the first in
November 2017 and the second in January 2018. On February 1, 2018, by a vote of
2
two to one, the Board denied Landowner’s request for a variance. On appeal,1
Landowner raises several issues, numbered A through L. However, it appears that
the single issue requiring substantive consideration is whether Landowner sustained
its burden to establish its entitlement to a variance by demonstrating that the granting
of the variance would not be detrimental to the public welfare.
Section 910.2 of the Pennsylvania Municipalities Planning Code
(MPC)2 governs the issuance of variances. An applicant for a variance must
establish all of the following elements:
(1) an unnecessary hardship will result if the variance is
denied, due to the unique physical circumstances or
conditions of the property; (2) because of such physical
circumstances or conditions the property cannot be
developed in strict conformity with the provisions of the
zoning ordinance and a variance is necessary to enable the
reasonable use of the property; (3) the hardship is not self-
inflicted; (4) granting the variance will not alter the
essential character of the neighborhood nor be detrimental
to the public welfare; and (5) the variance sought is the
minimum variance that will afford relief.
Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811–12 (Pa. Cmwlth.
2005).
1
Where no additional evidence is taken by the trial court, the Board is the factfinder. This
Court may not substitute its interpretation of the evidence for that of the Board, the factfinder in
this case. Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa.
Cmwlth. 2011). The Board is the sole judge of the credibility of witnesses and the weight to be
afforded their testimony. Id.; Laurento v. Zoning Hearing Bd. of Borough of West Chester, 638
A.2d 437 (Pa. Cmwlth. 1994). Thus, it is the Board's function to weigh the evidence before it.
Pohlig Builders, LLC. If the record contains substantial evidence, this Court is bound by the
Board's findings that result from the resolution of credibility and conflicting testimony. Id.
2
Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December
21, 1988, P.L. 1329, 53 P.S. § 10910.2.
3
The reasons for granting a variance must be substantial, serious, and
compelling. Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford, 34 A.3d
286, 296 (Pa. Cmwlth. 2011). The burden of an applicant seeking a zoning variance
is heavy, and variances should be granted sparingly and only under exceptional
circumstances. Id.
Landowner is correct in stating that the Board failed to make specific
findings of fact with respect to a number of issues pertaining to unnecessary
hardship. Nonetheless, it remained Landowner’s burden in its variance request to
demonstrate both unnecessary hardship and no negative impact to the public welfare.
The Board found as follows:
5. Apparently, the [warehouse] on [s]ubject
[p]remises occupies nearly the entire lot with no area for
parking, loading or unloading available on the premises or
adjacent thereto.
6. Subject [p]remises fronts on the South side of
Hamilton Street where no parking is provided, there being
two east bound lanes which, a short distance east of
[s]ubject premises, separate to go in different directions.
One west bound lane carries traffic coming from the north
and east of [s]ubject premises. No parking is provided
along that lane either.
7. Said section of Hamilton Street is heavily
traveled.
8. [Landowner] proposes to provide parking
spaces for the 27 dwelling units more than 1,100 feet to
the west of [s]ubject [p]remises, south of Hamilton Street
and west of South 3rd Street.
(Board Decision at 1-2.) Relying on those findings, the Board stated:
[T]he Board is concerned that the total lack of parking on
[s]ubject [p]remises or adjacent thereto when combined
4
with the intensity of the proposed use will result in
substantial detriment to the public welfare, both for
occupants of the dwelling units and the general public.
The total lack of on-lot or adjacent parking will contribute
to conditions causing traffic safety hazards and pedestrian
safety hazards.
Though [Landowner] proposes more than an adequate
number of [parking] spaces, the location of the [parking]
spaces is so distant and so located that the parking
facilities of neighboring property owners are likely to be
the target of infringement and trespass.
(Board Decision at 2-3.)
Insofar as the Board concluded (in its discussion) that the proposed
relief, if granted, would result in harm to the public welfare, that conclusion is
adequately supported by relevant findings of fact that are, in turn, supported by
evidence, and that Landowner does not take issue with such findings or conclusion,
we agree with the Board’s determination that Landowner did not establish a right to
the variances it sought.
Turning briefly to Landowner’s arguments concerning a request for
alternative relief in the form of finding of “nonconformity” we note that Landowner
has not developed any argument concerning how the Board erred in not finding a
nonconformity or even explained what legal standard it references, let alone
provided authority for or stated how it believes it has met such a standard.3 The
argument portion of a brief must be developed with pertinent discussion of the
issues, including citations to relevant authority. Pa. R.A.P. 2119(a). When parties
fail to satisfy this requirement, the Court is “neither obliged, nor even particularly
3
Landowner clearly cannot establish that it has a lawful pre-existing nonconforming use,
because the warehouse was never used as a residential property.
5
equipped, to develop an argument for [them].” Skytop Meadow Cmty. Ass'n, Inc. v.
Paige, 177 A.3d 377, 384 (Pa. Cmwlth. 2017).4 Thus, the issue is waived.
In light of the foregoing, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
4
To the extent that these arguments bear on the issue of unnecessary hardship, we need not
address that issue for the reasons stated above.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
309 E. Hamilton St., LLC, :
Appellant :
:
v. : No. 1238 C.D. 2018
:
Allentown City Zoning :
Hearing Board :
ORDER
AND NOW, this 1st day of May, 2019, the Order of the Court of
Common Pleas of Lehigh County in the above-captioned matter is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge