J.H. Ferguson v. ZHB of the City of Erie

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janet H. Ferguson, :
Appellant :
:
v. :
:
Zoning Hearing Board : No. 437 C.D. 2022
of the City of Erie : Submitted: December 30, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 16, 2023
Janet H. Ferguson (Ferguson) appeals from the April 5, 2022, order of
the Court of Common Pleas of Erie County (trial court). The trial court affirmed the
January 3, 2021, decision of the Zoning Hearing Board of the City of Erie (Board),
which approved a dimensional variance sought by PE Real Estate Holdings, LLC
(PERE).1 Upon review, we vacate and remand.
I. Factual & Procedural Background
In November 2020, PERE sought a dimensional variance for its plan to
construct a nine-unit, three-story building with rental apartments on vacant lots at
1
PERE, the equitable owner of the property at issue, has not intervened in this matter.
824 and 828 West 2nd Street in Erie near the waterfront.2 Reproduced Record (R.R.)
at 2a. PERE’s application sought the variance to allow 84.6 feet of front yard setback
space facing 2nd Street. Id. at 3a. This greatly exceeded the amount allowed by
Section 205.11 of the City’s Zoning Ordinance (Ordinance)3; based on the
Ordinance’s formula, the maximum permissible front setback for this property is 12
feet.4 Id. at 34a; Ordinance § 205.11. In its application, PERE explained that the
variance would allow it to situate a driveway and off-street parking in front of the
building. Id. at 4a. This configuration was needed because the adjacent lots and
existing buildings on either side of the property did not have compliant side and rear
setbacks and would not permit a sufficiently wide driveway on either side of the
proposed building to access parking in the rear without forcing the building to be too
narrow or too tall to reasonably develop. Id. PERE had previously been denied a
variance for a 12-unit version of the building. Id. at 22a.
A hearing on PERE’s variance application was held via video (due to
the COVID-19 pandemic) on December 8, 2020. R.R. at 35a. Phillip Gesue
(Gesue), the principal of PERE, testified that he understood local opposition to the
initial unsuccessful 12-unit plan and since then had met with community groups and
leaders, which led to downsizing and revision of the proposal that he hoped
responded to the input and feedback. Id. at 42a-43a.
2
PERE also applied for conditional use approval for this project, which is the subject matter
of the companion case Ferguson v. City Council of the City of Erie (Pa. Cmwlth., No. 436 C.D.
2022).
3
City of Erie, Pa., Zoning Ordinance (2021), No. 80-2005, as amended.
4
Section 205.11 of the Ordinance provides that front yard setbacks must be the “average
depth of the existing structures located between two intersecting streets” plus or minus 5 feet. The
average depth here was 7 feet, so the maximum compliant front yard setback would be 12 feet.
R.R. at 34a; Ordinance § 205.11.
2
Brian Weber (Weber), the project architect, likewise testified that the
current proposal was for a smaller building that accommodated neighbors’ concerns
about privacy and blocking of sunlight. R.R. at 48a-49a. The plan complied with
all dimensional restrictions except for the front yard area, and the requested variance
was to ensure ample off-street parking in response to neighbors’ concerns. Id. at
46a-47a. Weber stated, consistently with PERE’s application, that the variance was
needed because non-conforming older buildings on the adjacent lots forced
constraints on the ground design of the new plan. Id. at 50a.
Susan Dey (Dey), and Pete Frisina, who are local realtors, testified in
favor of the project. R.R. at 61a, 72a-73a & 79a. Dan Dahlkemper (Dahlkemper),
the current owner of the property and a longtime member of Erie’s advisory design
review committee, testified that some flexibility is appropriate here in light of the
advantages that development like PERE’s project can bring to Erie. Id. at 64a-65a.
Local residents Robert Sprickman (Sprickman) and Laurie Edwards (Edwards)
testified in opposition to the project. R.R. at 81a-82a & 89a-90a.
Ferguson testified in opposition to the project. She owns 60 apartments
in the area, lives adjacent to the proposed project, and attended the community
meetings with PERE. R.R. at 75a. She believed a nine-unit rental property or
perhaps a smaller six-unit version could be built closer to the 2nd Street side of the
lot with parking in the rear on the waterfront-facing side of the property. Id. at 76a
& 78a. She opined that the current proposal situating the building farther back from
2nd Street will block current residents’ views, sunlight, and fresh air. The east side
already has a paved single-lane driveway that could be improved and expanded to a
20-foot driveway for the project. Id. at 76a-77a. She took umbrage at describing
the neighboring existing properties as non-conforming because they “most definitely
3
conformed” when they were built about 100 years ago. Id. at 77a. She added that
the status of the adjoining lots is “not a reason to build a non-conforming structure
on this lot” that benefits PERE but negatively impacts the neighbors, particularly
since the 84.6-foot variance sought for the front area so greatly exceeds the
Ordinance’s formula maximum of 12 feet. Id.
During the hearing, Ferguson’s counsel, James Greenfield (Greenfield),
asked if he could question PERE’s witnesses, but the Board’s chairperson stated that
he would “rather if you have something to say that you say what you have[.]” R.R.
at 83a. Greenfield was then sworn in and testified that he did not believe PERE’s
witnesses had established a hardship sufficient to warrant the requested variance,
that a smaller project of six units would be compliant and not negatively impact
neighbors, and that the proposed project would not be in scale with the
neighborhood. Id. at 84a-87a.
After the hearing, the Board voted 3-1 on the record to approve the
variance. R.R. at 94a-95a. In its subsequent January 2021 decision, the Board found
that due to the neighboring lots with buildings that did not comply with the
Ordinance’s setback requirements, the PERE property was “crowded.” Id. at 33a.
This presented unique physical characteristics that constituted a hardship not of
PERE’s making. Id. The Board added that the proposal would not negatively impact
the neighborhood and was the “least modification necessary” for the proposal. Id.
at 34a.
Ferguson appealed to the trial court and filed a motion asserting that
she had been barred from cross-examining PERE’s witnesses at the December 2021
Board hearing. Original Record (O.R.) #13. She asked for the opportunity to
challenge PERE’s assertion of a valid hardship warranting the variance and for the
4
trial court to “take additional evidence through the cross-examination of all
witnesses who testified on behalf of PERE before the [Board].” Id. The trial court
granted Ferguson’s motion in a June 2021 order. R.R. at 236a. The order stated:
“The [Board] shall schedule a supplemental hearing and follow all applicable
procedures for notice and production of the same witnesses who appeared at the
hearing on 12/8/20. . . . Ferguson shall be permitted to cross examine witnesses and
provide evidence.” Id.
The trial court had issued a similar order in the companion conditional
use matter; therefore, on July 21, 2021, the Board and City Council (Council) held
a joint supplemental hearing on both matters. R.R. at 99a. At the outset, the City’s
deputy solicitor, Catherine Doyle (Doyle), stated: “The trial court has not remanded
the case but has opened up the hearing to hear additional evidence, limited evidence
regarding cross-examination of [PERE’s] witnesses.” Id. at 103a. Doyle also stated
that “both of the boards have made a final decision, and the case is currently before
the trial court. This is merely to hear additional testimony as provided in the [trial]
court order, and there will be no further deliberations or decisions by either board.”
Id. at 105a. Doyle later averred that because the trial court had not formally
remanded the matter, the Board did not have jurisdiction to reconsider its previous
grant of the requested variance. Id. at 145a.
During cross-examination by Ferguson’s counsel, Weber, the architect,
stated that when PERE met several times with community members and neighbors,
interference with their views was not among the concerns raised,5 so that was not a
consideration when the project was being redesigned. R.R. at 112a-13a. He did not
5
PERE’s documentation from those meetings indicated concerns were expressed over the
proposed building size and density, parking, privacy of nearby buildings’ windows, and sunlight
and shade. R.R. at 112a.
5
recall discussions with Gesue about further reducing the number of apartments after
the first reduction from 12 to 9 units. Id. at 115a. In response to renderings devised
by Ferguson’s expert, Patrick Cooper (Cooper), Weber believed that placing the
driveway in a tunnel through the middle of the building on the ground floor so that
parking could be in the back would be cost-prohibitive for a three-story building
with only nine planned units; it would need at least one more floor and probably
exceed the Ordinance’s height limits because the resulting split ground floor units
would be too narrow to be usable as apartments. Id. at 116a-17a. He added that
such a design would not be consistent with the neighborhood’s visual character. Id.
at 117a.
Weber stated that Ferguson’s proposed plan with 12-foot-wide
driveways on the sides of the building would conflict with the Ordinance’s buffer
requirements and would also entail grading and stormwater drainage issues due to
the extensive impervious paving needed, which would not be the case with the
current plan. R.R. at 122a-24a. Also, 12-foot-wide driveways would be insufficient
for fire engines to reach Cooper’s proposed rear parking area, turn around, and
depart; the current plan with parking in the front would allow easy access for
emergency vehicles. Id. at 125a-26a. Fire engines would not be able to access the
property from Front Street in the back of the proposed building because the
undeveloped land there, which is owned by the Port Authority, is sloped and too
soft. Id. at 127a.
Gesue acknowledged on cross-examination that waterfront views from
the apartments will make them more attractive and enhance the economic feasibility
of the project. R.R. at 131a. He added that having nine apartments is more
economically feasible due to the marginal and incremental costs of each unit within
6
the overall project; having fewer units will make each one more expensive to build
and given the economic challenges in Erie, rents can only be so high to offset the
break-even cost of acquiring and developing the site. Id. at 131a-32a. He did not
believe he could make it work with only six units, even if that approach might require
a smaller variance or none at all. Id. at 133a.
Objectors presented Cooper, a civil engineer with real estate
development and zoning experience. R.R. at 135a. His firm created the exhibits
presented to Weber during his testimony. Id. at 137a. He believed his designs would
not violate the Ordinance and disputed Weber’s opinions that they would not be
feasible due to buffering, drainage, grading, and emergency access issues. Id. at
138a-40a.
After the July 2021 supplemental hearing, the Board did not alter its
January 2021 decision. The matter returned to the trial court, which took no further
evidence and held argument in December 2021, at which Greenfield and Doyle
appeared along with Arthur Martinucci (Martinucci), who is the newly appointed
solicitor and counsel for the Council in the companion matter. R.R. at 175a.
Greenfield explained that because the trial court’s order for the supplemental hearing
expressly allowed Ferguson to present evidence, Cooper was permitted to testify as
Ferguson’s expert even though he had not been part of the original proceedings
before the Board. Id. at 189a-90a. Martinucci disagreed, referring to the order’s
express statement that it was to include the witnesses from the initial hearing for
cross-examination purposes and the fact that the order did not formally remand the
case or direct the Board or Council to reconsider the matter based on the substance
of the supplemental hearing. Id. at 200a. Martinucci did not believe the Board or
Council had jurisdiction to consider Cooper’s testimony or reconsider the previous
7
grant of a variance. Id. at 206a-07a. Martinucci acknowledged, however, that he
did not recall either the Board or Council objecting to Cooper’s testimony at the
supplemental hearing. Id. at 201a. Doyle added that the trial court could treat
Cooper’s testimony as permissible rebuttal evidence or as new testimony, but she
would object if the latter. Id. at 222a. The trial court expressed an inclination that
Cooper’s testimony as an expert at the supplemental hearing was permissible but
stated that its decision on that issue was not final at that time. Id. at 202a.
On April 5, 2022, the trial court issued its decision and order denying
Ferguson’s appeal and upholding the Board’s grant of the variance. Trial Ct. Op.;
O.R. #24. The trial court referenced its June 2021 order directing the Board to
“conduct a supplemental hearing to permit Ferguson to cross-examine witnesses and
present evidence and that Greenfield had done so, but also presented Cooper.” Id.
at 5. The trial court stated that the Board “did not make any additional findings,”
but the trial court did not otherwise address the supplemental hearing; the trial court
then reviewed the record for substantial evidence under the deferential standard of
review for substantial evidence, which is applicable where a court has taken no new
evidence.6 Id. at 5-6.
The trial court found the Board’s conclusion that PERE had established
a hardship was supported by substantial evidence because the lots were hemmed in
by existing nonconforming structures on the adjacent lots. Trial Ct. Op. at 8-9. The
trial court agreed with the Board that the 84.6-foot variance for front yard parking
and a driveway was the least modification necessary under the circumstances and
that the variance would not alter the essential character of the surrounding
6
When the trial court does not take additional evidence in a variance matter, our review is
limited to determining whether the zoning board committed an error of law or abused its discretion,
which occurs when the board’s findings of fact are not supported by substantial evidence. Singer
v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 n.1 (Pa. Cmwlth. 2011).
8
neighborhood. Id. at 8-9. The trial court concluded that the Board had not
committed either legal error or an abuse of discretion in granting the variance. Id.
at 9-10. Ferguson appealed to this Court.
II. Discussion
Ferguson first argues that the trial court erred in applying a “substantial
evidence” or quasi-appellate standard of review rather than a de novo standard to the
testimony and evidence from the July 2021 supplemental hearing. Ferguson also
argues that, on the merits, the Board and the trial court both erred in concluding that
PERE established all required elements for the variance.
Section 1005-A of the Pennsylvania Municipalities Planning Code
(MPC)7 states:
If, upon motion, it is shown that proper consideration of
the land use appeal requires the presentation of additional
evidence, a judge of the court may hold a hearing to
receive additional evidence, may remand the case to the
body, agency or officer whose decision or order has been
brought up for review, or may refer the case to a referee to
receive additional evidence . . . . If the record below
includes findings of fact made by the governing body,
board or agency whose decision or action is brought up for
review and the court does not take additional evidence or
appoint a referee to take additional evidence, the findings
of the governing body, board or agency shall not be
disturbed by the court if supported by substantial evidence.
If the record does not include findings of fact or if
additional evidence is taken by the court or by a referee,
the court shall make its own findings of fact based on the
record below as supplemented by the additional evidence,
if any.
7
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329.
9
53 P.S. § 11005-A (emphasis added). In Sowich v. Zoning Hearing Board of Brown
Township, 214 A.3d 775 (Pa. Cmwlth. 2019), a common pleas court granted a
landowner’s “motion to present additional evidence” and remanded the case to the
zoning board to supplement the record and take additional evidence on specific
factual matters that had not been squarely before the board when it considered
whether the landowner’s use of its property was a lawful nonconforming use. Id. at
780-81. At the remand proceeding before the zoning board, numerous witnesses
who had not previously appeared were called to testify on the remand subject matter.
Id. at 782. After the remand proceeding, the board did not make additional findings
or conclusions or alter its decision against the landowner; it simply indicated that the
record was to return to the common pleas court for further proceedings. Id. at 782.
When the matter returned to the common pleas court, that court applied
the deferential substantial evidence standard to the entire post-remand record and
affirmed the board’s decision. 214 A.3d at 782-83. On the landowner’s appeal to
this Court, we noted that the common pleas court was not required to take additional
evidence itself in order to engage in fact-finding based on the post-remand record.
We construed Section 1005-A as follows:
First, a trial court properly makes its own findings if a
record being reviewed by the court does not include
findings . . . . Second, as is often noted in the case law, the
court also acts appropriately in making its own findings if
it takes additional evidence. Third, the court generally
may be precluded from making its own findings if the
record includes findings and the court does not take
additional evidence.
Id. at 784-85 (quoting Koutrakos v. Zoning Hearing Bd. of Newtown Twp., 685 A.2d
639, 641-42 (Pa. Cmwlth. 1996)). In Sowich, because the zoning board failed after
remand proceedings to account for the new substantive evidence in any way, we
10
concluded that, under Section 1005-A, the common pleas court was required to make
de novo findings of fact on the evidence from the specific issue addressed in the
remand; we therefore remanded to the common pleas court for that purpose. Id. at
785 & 790.
Ferguson, relying on Sowich, argues that this case must be remanded to
the trial court for it to apply a de novo rather than deferential standard to the record
from the supplemental hearing and to produce a new opinion with factual and
credibility determinations based on the supplemental hearing. Ferguson’s Br. at 13-
16. The Board responds that both Ferguson’s motion and the trial court’s order
directing the supplemental hearing emphasized that its purpose was not for the
introduction of substantively new evidence, but simply to allow Ferguson to cross-
examine PERE’s witnesses from the December 2020 hearing; as such, Cooper
should not have been permitted to testify. Board’s Br. at 5. According to the Board,
the trial court did not actually receive any new evidence and was not required to
make de novo findings or determinations. Id. at 6. The Board adds that even if the
trial court erred in its approach, any such error was harmless because the record and
trial court decision are sufficient for effective review by this Court. Id. at 7.
Ferguson’s “motion for additional evidence” to the trial court asked
primarily for the opportunity to cross-examine PERE’s witnesses from the previous
proceeding. See O.R. #13 at 6. The trial court’s June 2021 order granting Ferguson’s
motion likewise focused on cross-examination of PERE’s witnesses. R.R. at 236a.
We note that cross-examination testimony is itself substantive evidence. Black’s
Law Dictionary (11th ed. 2019) (defining “testimony” as “[e]vidence that a
competent witness under oath or affirmation gives in a [legal proceeding]”).
However, the trial court’s phrase that Ferguson “shall be permitted to cross examine
11
witnesses and present evidence” opened the door for Ferguson to present Cooper’s
testimony and the trial court did not ultimately strike Cooper’s testimony or the new
evidence of his counter-renderings of a smaller-scale compliant version of the
project. O.R. #13 at 6 (emphasis added).
In Sowich, the purpose of the common pleas court’s formal remand was
to supplement the record by securing additional substantive evidence on a specific
issue that had not been before the zoning board at the initial proceedings; additional
witnesses testified on the new subject matter. 214 A.3d at 781-82. Here, although
the trial court did not expressly remand the matter, instead characterizing the
proceeding as a “supplemental hearing,” the practical result was the same as in
Sowich: new evidence was added to the record, specifically the cross-examination
testimony of Gesue and Weber and Cooper’s “new” testimony and renderings. As
in Sowich, the Board here did not consider or comment on the new evidence, likely
because of Doyle’s statement that, in the absence of a formal remand or direct order
by the trial court to incorporate and reconsider the evidence after the supplemental
hearing, the Board was authorized only to conduct the hearing and return the matter
to the trial court. R.R. at 103a-05a, 145a, 200a & 206a-07a.
In Sowich, the remand was for the zoning board to take additional
evidence on a discrete factual issue; it was therefore possible for the trial court, post-
remand, to consider that specific evidence de novo. Here, however, the trial court
did not return the matter to the Board for additional evidence on a discrete issue.
Instead, the court ordered the Board to hold supplemental proceedings so that
Ferguson could cross-examine PERE’s witnesses and provide rebuttal evidence,
both of which pertained to the variance inquiry as a whole. The evidence from the
July 2021 supplemental hearing therefore cannot be considered separately from the
12
evidence from the Board’s original December 2020 proceedings. Thus, the trial
court should have instructed the Board to revise its decision in accordance with the
new evidence from the supplemental hearing.
III. Conclusion
The trial court’s failure to instruct the Board to revise its decision means
that although the evidentiary record before this Court is complete, there is no
decisional foundation from the Board providing a first-hand evaluation of the
evidence from the supplemental hearing. Moreover, the trial court could not have
performed its own evaluation of the evidence from the supplemental hearing due to
the interrelated nature of the evidence from the supplemental and original
proceedings. Accordingly, the trial court’s order is vacated, and this matter is
remanded to the trial court for further remand to the Board for preparation of a
written decision with findings and conclusions based on the record evidence from
both the initial and supplemental hearings.8
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
In light of our disposition to remand this matter, we do not reach the merits of Ferguson’s
appeal.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janet H. Ferguson, :
Appellant :
:
v. :
:
Zoning Hearing Board : No. 437 C.D. 2022
of the City of Erie :
ORDER
AND NOW, this 16th day of June, 2023, the April 5, 2022, decision
and order of the Court of Common Pleas of Erie County (trial court) affirming the
January 3, 2021, decision of the Zoning Hearing Board of the City of Erie (Board),
which approved a dimensional variance sought by PE Real Estate Holdings, LLC, is
vacated. This matter is remanded to the trial court for further remand to the Board
for preparation of a written decision with findings and conclusions based on the
record evidence from both the initial and supplemental hearings.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge