Summary
involving consolidated appeals with one party challenging determination that use constituted pre-existing, non-conforming use and another party challenging imposition of conditions on that use
Summary of this case from Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd.Opinion
No. 119 C.D. 2011 No. 218 C.D. 2011
03-21-2012
Borough of St. Lawrence, Appellant v. Zoning Hearing Board of The Borough of St. Lawrence (Rafaelle DiBiase and Catherine DiBiase) Borough of St. Lawrence v. Zoning Hearing Board of The Borough of St. Lawrence (Raffaele DiBiase and Catherine DiBiase) Appeal of: Raffaele DiBiase and Catherine DiBiase
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
In these consolidated appeals, the Borough of St. Lawrence (the Borough) appeals from the Order of the Court of Common Pleas of Berks County (trial court) that denied the Borough's appeal from the determination of the Zoning Hearing Board of The Borough of St. Lawrence (Board) and affirmed that determination. The Board's determination permitted Raffaele DiBiase and Catherine DiBiase (Landowners) to continue to use their property located at 3608 St. Lawrence Avenue in the Borough (Property) as a professional office building and residential apartment, subject to eighteen conditions, based on the Board's conclusion that the structure on the Property was a pre-existing, nonconforming structure and the use of the Property as an office building and residential apartment was a pre-existing, nonconforming use. On appeal, the Borough argues that the trial court erred in affirming the Board's determination because: (1) Landowners impermissibly expanded the Property's pre-existing, nonconforming use; (2) Landowners failed to establish that they suffered any hardship by having to use the Property in accordance with a 2001 agreement between the Borough and the previous owners of the Property (2001 Agreement); and (3) the Board's conditions are insufficiently protective and present a hardship to the Borough if the Borough attempts to enforce those conditions. In addition, Landowners appeal the trial court's Order to the extent that it affirms certain conditions imposed on Landowners' use of the Property. Landowners argue that the Board improperly imposed four conditions on its pre-existing, nonconforming use.
The notices of appeal filed in this matter reflect two different spellings of Mr. DiBiase's first name. For the purposes of this opinion, we use the spelling reflected on Mr. DiBiase's notice of appeal, Raffaele.
The Property is located in the Borough's R-10 Urban Residential Zoning District as defined in the Borough of St. Lawrence Zoning Ordinance (Ordinance), which was adopted on September 11, 2008. The Property is sixty feet wide and two hundred feet deep, with a total area of 12,000 square feet, and is improved with a building, which contains professional offices and a residential apartment. The first floor of the building has ten offices, a small kitchenette and two bathrooms, and there is a 750 to 800 square foot apartment on the second floor. Residential uses abut the Property on both sides, with Pamela Hilbert's home to the east and Marilyn Gross's home to the west. There is a fence that runs along the west side of the Property that borders the Gross property and, after an incident between Landowners and Mrs. Gross, Landowners have been maintaining their side of the fence. There is an alley that runs behind the Property for several blocks and connects with Walnut Street; the alley provides additional access to the Property. (Board's Determination, Findings of Fact (FOF) ¶¶ 3, 10-16, 30.)
Landowners purchased the Property on April 19, 2002 and, at that time, all ten offices on the first floor were occupied with four tenants and fifteen employees. As of the fall of 2009, there were seven tenants with only nine employees occupying all of the office space on the first floor; thus, the number of employees had fallen between 2002 and 2009. The majority of the tenants' business is by appointment or outside sales. Landowners have not altered the configuration of the offices since purchasing the Property and have only performed regular repairs and maintenance to the Property. The Property has eleven regular parking spaces: three located behind the building, eight located parallel to the fence on the western border of the Property, and one handicap accessible parking space at the front of the Property. There is no space on the Property for any additional parking, a loading dock area, or parking for delivery trucks. The Property, which is accessed via St. Lawrence Avenue, has a one-way driveway that requires all traffic exiting the Property to use the alley behind the Property. Landowners posted signs at the end of their driveway directing exiting traffic to turn right in the alley and at the entrance of their driveway to prevent motorists from accessing St. Lawrence Avenue from the alley via their driveway. Landowners have landscaped the front of the Property, but there are neither any shade trees, nor is there room for any, in the Property's parking area. (FOF ¶¶ 2, 17-29.)
In or about June 2009, one of the tenants in the office building changed from a massage therapist to a reiki practitioner. This prompted a letter from the Borough, through Van Cleef Engineering Associates (the Borough's Assistant Zoning Officer (Officer)), stating that Landowners were violating various provisions of the Ordinance, including parking and use provisions. Landowners appealed the Officer's decision, sought an interpretation of Sections 700-709 of the Ordinance to determine whether the Property was nonconforming and, alternatively, sought a variance from various Ordinance sections. The Board held hearings on Landowners' appeal on September 22, 2009, October 12, 2009, and November 10, 2009, and a supplemental deposition of several witnesses was taken on November 12, 2009. Only Landowners and the Borough were parties before the Board, with no others requesting party status. (FOF ¶¶ 4, 7, 9, 32-33.)
Landowners offered the testimony of Mr. DiBiase; John W. Hoffert, a professional land surveyor; and some of the commercial tenants who occupy the Property. Mr. DiBiase's testimony was the basis of the majority of the above-recited facts. Mr. Hoffert testified that he drafted a plan reflecting both the current and proposed parking on the Property, which was admitted into evidence. He indicated that, currently, there are eleven off-street parking spaces and Landowners propose to reduce this number to nine, ten-foot by twenty-two-foot parking spaces, which comply with the Ordinance's requirements but require additional paving on the Property. Mr. Hoffert stated that the existing handicap parking space does not comply with federal requirements because it is too steep, but that it was feasible to modify the existing space to comply with those requirements. With regard to the travel aisle of the parking lot, Mr. Hoffert testified that it would be between ten and twelve feet and that, although twelve feet was considered the industry standard, the constraints of the Property would require that a ten foot aisle be necessary in some areas, which he opined would be sufficient to permit vehicles to safely travel across the Property. (FOF ¶¶ 8, 35-36, 39-42, 44-47; Trial Court Op. at 2-3.)
The Borough offered the testimony of, inter alia, Allison Leinbach, the Borough Manager, and Christy Staudt, a project manager for Traffic Planning and Design, as well as photographs of the Property. Ms. Leinbach testified as to the impetus of the June 2009 letter from Officer, i.e., the change in tenants from the massage therapist to the reiki practitioner. Ms. Staudt testified that she had visited the Property twice to review its traffic and parking. Ms. Staudt stated that, in accordance with a 1983 Decision of the Board (1983 Decision), in which the Board approved the use of the Property as a professional office building for use as an advertising agency and one residential apartment as a special exception, which was submitted as evidence, (Trial Court Op. at 1), the Property was to have thirteen parking spaces, nine along the western edge of the Property and four in the back. She also indicated that the 1983 Decision limited the use of the Property to no more than ten employees. Ms. Staudt testified that the Ordinance requires: (1) at least one loading space; (2) three parking spaces for the apartment; and (3) a minimum of eighteen parking spaces. She stated that she witnessed a UPS delivery driver park his truck on Walnut Street, while he hand-delivered a package to the Property. Ms. Staudt opined that a twelve foot travel aisle was ideal and that Landowners could maximize the available parking by widening and providing for additional buffering in the driveway. Neighbors Mrs. Hilbert and Mrs. Gross also made statements in opposition to the appeal. (FOF ¶¶ 31, 33, 48, 50-58, 62; Hr'g Tr. at 198-200, October 12, 2009, R.R. at 270a-272a; Hr'g Tr. at 219-20, 228-29, November 10, 2009, R.R. at 291a-92a, 300a-01a.)
During the hearing it became known that, in late 2001 and early 2002, the Borough addressed certain alleged zoning violations on the Property by agreement, i.e., the 2001 Agreement. In the 2001 Agreement, the previous owners of the Property agreed: to take two of the front parking spaces and make them into a handicap parking space; to landscape the front of the building; to reduce the size of the sign for the office building; that traffic would be one-way across the Property; and that the maximum occupancy of the building would be ten employees and two residents. Although there were multiple tenants occupying the building at the time the 2001 Agreement was entered into, the 2001 Agreement is silent as to the number of tenants permitted to occupy the building. In exchange, the Borough issued a commercial occupancy permit. (FOF ¶¶ 60-61; 2001 Agreement, R.R. at 368a-69a.)
It was during these proceedings that it was discovered that the prior owners' use was nonconforming because it had four commercial tenants with offices in the building. (Trial Court Op. at 1.)
Based on the evidence presented, the Board made the following determinations. Article VII of the Ordinance recognizes the existence of nonconformities. Both the building and the current, commercial use predate the Ordinance and, therefore, constitute valid pre-existing, nonconformities which were neither changed nor expanded by the change in the tenant from a massage therapist to a reiki practitioner. There is no more space on the Property to create more parking spaces, making it impossible for Landowners to strictly comply with all of the terms of the Ordinance. Landowners relied upon the 1983 Decision and the terms of the 2001 Agreement in purchasing the Property. Landowners are complying with the 2001 Agreement and the 1983 Decision because, although the number of tenants has increased, the number of employees in the building has decreased. The Borough failed to prove that the change in tenant changed the use of the Property or would cause a detrimental effect on the surrounding properties. Moreover, Landowners' continued use of the Property will not adversely affect the public health, safety, or welfare; they have done nothing to create the size of the Property or the building on the Property; and the physical conditions inflict unnecessary hardship on Landowners' reasonable use of the Property. For these reasons, the Board concluded that the Property was nonconforming as to both size and use, and it permitted Landowners to continue to use the professional office building and apartment subject to eighteen conditions. (FOF ¶ 34; Board's Determination, Conclusions of Law (COL) ¶¶ 5-20.) Both the Borough and Landowners appealed to the trial court, which affirmed without taking any additional evidence. The Borough and Landowners now appeal to this Court.
Those conditions were:
a. [Landowners] shall register the [P]roperty and the use of the [P]roperty as nonconforming with the Borough . . . Zoning Officer.(Board's Decision, Conclusions of Law (COL) ¶¶ 20(a)-20(s).)
b. [Landowners] shall bring the existing handicap parking space into compliance with all applicable federal, state and local requirements, including the requirements of the Americans with Disabilities Act and the Borough. . . .
c. [Landowners] shall take all actions necessary to ensure that the . . . Property conforms with [Mr. Hoffert's] Plan . . . , including but not limited to the location of the parking spaces as such spaces are indicated on the . . . Plan.
d. The maximum number of total employees of all tenants of the professional office building shall not exceed nine (9).
e. The maximum occupancy of the residential apartment shall be two residents.
f. All parking spaces on the . . . Property as indicated on the . . . Plan . . . shall be striped and continuous arrows shall be painted on the travel aisle to denote one-way travel only.
g. A one-way stand-alone sign shall be placed at the entrance of the . . . Property on the east side of the driveway at St. Lawrence Avenue.
h. A sign shall be attached to and placed on the building indicating the driveway as one-way travel only.
i. A stand-alone sign shall be placed at the alley area on the . . . Property indicting "exit right only" to ensure that traffic will be routed to Walnut Street.
j. A right turn arrow shall be placed on the driveway near the end of the thru-way in addition to the continuous arrows referenced above.
k. In the six foot six inch area near the alley, as indicated on the . . . Plan . . ., indications shall be made on the ground of the area denoting that the area is not a parking area.
l. [Landowners] shall construct on the . . . Property between the three parking spaces at the rear of the [P]roperty and the property line with 3618 St. Lawrence Avenue a fence barrier suitable to prevent vehicular travel across this area to access the driveway on 3618 St. Lawrence Avenue, and such fence shall comply with all applicable Ordinances.
m. The fence indicated above shall not in any way affect clear sight views from any property nor hinder traffic flow in the alley.
n. [Landowners] shall post signs inside the building at all entrances and exits to inform tenants, their employees, guests and visitors to exit the . . . Property by turning right at the rear of the [P]roperty onto the alley.
o. [Landowners] shall include language in all existing and future leases requiring tenants, their employees, guests and visitors to exit the . . . Property by turning right at the rear of the [P]roperty onto the alley, and requiring tenants to inform their employees, guests and visitors of this requirement.
p. [Landowners] shall be responsible to maintain the alley from the easternmost [(sic)] property line of the . . . Property to Walnut Street.
q. The Decision of the . . . Board is based on the current tenants and the kind or type of businesses conducted by the current tenants. In the event the kind or type of tenant changes resulting in an increased intensity of use and/or higher volume of traffic at the . . . Property, [Landowners] shall be required to appear before the . . . Board for re-evaluation and further zoning relief.
r. The relief granted herein is further conditioned upon [Landowners] complying with all relevant building and occupancy codes and ordinances as well as the plans and testimony submitted before the . . . Board all of which are incorporated herein and made a part of this Decision.
s. Failure to comply with any of the above-referenced conditions shall mean the immediate revocation of the relief granted herein.
Where, as here, the trial court does not take additional evidence, our review is limited to determining whether the Board committed an error of law or abused its discretion. Greth Development Group, Inc. v. Zoning Hearing Board of Lower Heidelberg Township, 918 A.2d 181, 185 n.4 (Pa. Cmwlth. 2007). An abuse of discretion occurs when the Board's findings of fact are not based on substantial evidence in the record, which is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mehring v. Zoning Hearing Board of Manchester Township, 762 A.2d 1137, 1139 n.1 (Pa. Cmwlth. 2000).
The Borough first argues that the trial court's Order should be reversed because Landowners have impermissibly expanded the pre-existing nonconforming use when the Board allowed the commercial occupancy of the Property to increase from four tenants to seven tenants. According to the Borough, in focusing on the change of tenant to hold that there was not a change in the use, the Board disregarded the fact that the building has been transformed with multiple commercial tenants potentially resulting in more client activity, more deliveries, and more employees on the premises, which will concomitantly have more negative effects on the surrounding neighborhood. The Borough argues that this matter is akin to 200 W. Montgomery Avenue Ardmore, LLC v. Zoning Hearing Board of Lower Merion Township, 985 A.2d 995 (Pa. Cmwlth. 2009) and Harrisburg Gardens, Inc. v. Susquehanna Township Zoning Hearing Board, 981 A.2d 405 (Pa. Cmwlth. 2009), wherein the use of the properties in question was considered a new use, not merely an expansion of a prior nonconforming use and, therefore, the property owners could not rely on the prior non-conformity to obtain permission to engage in the new use. 200 W. Montgomery Avenue, 985 A.2d at 999-1000 (holding that a drive-through carwash was not a natural expansion of the pre-existing, nonconforming use as a gas station with service bays); Harrisburg Gardens, 981 A.2d at 407, 411-12 (stating that the use of a property to manufacture topsoil and sell landscaping stone and boulders was not a natural expansion of the pre-existing, nonconforming use as a "simple" garden center whose business was 90% selling plants, flowers, and trees). In order to expand a nonconforming use, that expansion must be made to accommodate an increase in trade, Silver v. Zoning Board of Adjustment, 435 Pa. 99, 101, 255 A.2d 506, 507 (1969), which is not the case here where Landowners have presented no evidence to support the conclusion that the 2009 uses were similar in character to the uses that were present on the Property in 2002.
The Borough also argues that the trial court's Order should be reversed because, other than citing to its standard and scope of review, the trial court did not cite any law or specific record references to support its affirmation of the Board's determination. (Borough's Br. at 13 n.1.) However, we note that, because the trial court did not take additional evidence, this Court is reviewing the Board's decision, not the trial court's Order, to determine whether the Board committed an error of law or abused its discretion. Greth, 918 A.2d at 185 n.4.
After reviewing the record, the relevant case law, and the parties' arguments, we agree with Landowners and the Board that Landowners present use of the Property is a continuation of the nonconforming use and not an expansion of that use. Section 700 of the Ordinance recognizes the existence of nonconforming uses in the Borough and allows for their continuation. (Ordinance § 700, R.R. at 20a.) A legal, nonconforming use is a use predating a subsequent prohibitory zoning restriction. Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204, 1210 (Pa. Cmwlth. 2009). A property owner has the right to maintain a pre-existing, nonconforming use if that use was lawful when it came into existence and the use existed when the zoning ordinance came into effect. Hager v. West Rockhill Township Zoning Hearing Board, 795 A.2d 1104, 1110 (Pa. Cmwlth. 2002). The property owner seeking to obtain the benefit of the nonconformity bears the burden of proving the nonconformity. Id. To prove a nonconforming use, the property owner must present objective evidence that land was devoted to such use at the time the zoning ordinance was enacted. Appeal of Lester M. Prange, Inc., 647 A.2d 279, 281 (Pa. Cmwlth. 1994.) Once a nonconforming use is established, the owner has a vested property right to continue that use unless it is a nuisance, abandoned, or extinguished by eminent domain. Foreman v. Union Township Zoning Hearing Board, 787 A.2d 1099, 1102 (Pa. Cmwlth. 2001). "[T]o qualify as a continuation of an existing nonconforming use, a proposed use must be sufficiently similar to the nonconforming use to a sufficient degree so as to not constitute a new or different use." Harrisburg Gardens, 981 A.2d at 410. The proposed use need not be identical to the existing use, but there must be similarity between the uses. Id. This Court has stated that:
[i]n determining whether a proposed use bears adequate similarity to an existing nonconforming use, courts must give effect to the doctrine of natural expansion, which permits a landowner to develop or expand a nonconforming business as a matter of right. . . . The doctrine of natural expansion supports increased intensity in a property's utilization, e.g., an increase in the number of users or an increase in the frequency of a use.Lench v. Zoning Board of Adjustment of the City of Pittsburgh (Lench I), 852 A.2d 442, 444 (Pa. Cmwlth. 2005). "[T]he doctrine of natural expansion [of a nonconforming use] permits a landowner to develop or expand a business as a matter of right notwithstanding its status as a nonconforming use." Lench v. Zoning Board of Adjustment of the City of Pittsburgh (Lench II), 974 A.2d 551, 555 (Pa. Cmwlth. 2009). "[P]roperty owners have a constitutional right to expand a pre-existing nonconforming use to accommodate increased trade; accordingly, ordinances that prohibit per se the natural expansion of a nonconforming use have been deemed unconstitutional." Id. at 556. "A court cannot utilize an overly technical assessment of a nonconforming use to stunt its natural development and growth." Lench I, 852 A.2d at 444. "However, courts have consistently recognized that the right of expansion is not unlimited and that reasonable restrictions on such extensions are permissible and enforceable." Lench II, 974 A.2d at 556. Section 705 of the Ordinance governs the expansion of a nonconforming use and, pursuant to Section 705(3), a property owner must obtain a special exception to expand a pre-existing, nonconforming use. (Ordinance § 705(3), R.R. at 21a.)
Following the 1983 Decision, the Property became an approved ten-office professional office building with a maximum occupancy of ten employees and an apartment with a permitted occupancy of two residents. Pursuant to the 2001 Agreement, the Borough agreed to the use of the Property as a multi-tenant professional office building with a maximum occupancy of ten employees. Both the 1983 Decision and 2001 Agreement predated the current Ordinance; thus, the use of the Property as a multi-tenant professional office building with no more than ten employees is a legally nonconforming use that Landowners have a vested right to continue. Foreman, 787 A.2d at 1102.
The Borough does not deny that a pre-existing, nonconforming use exists, but argues that this use was impermissibly expanded by the addition of three tenants. However, the 2001 Agreement did not place an occupancy limit on the number of tenants, only on the number of employees permitted to work on the Property. Thus, in holding that the occupancy limit of the building was limited to ten employees, the Board was following the terms specified in the 2001 Agreement and did not expand or otherwise modify the 2001 Agreement. Here, there is no dispute that the number of employees is below the number set in both the 1983 Decision and the 2001 Agreement. In fact, there are fewer employees working at the Property now, nine, than when Landowners purchased it in 2002, fifteen. The Board believes that more tenants means that more clients will be coming to the Property, negatively impacting the parking situation on the Property. However, the uncontradicted evidence is that two of the seven tenants never have clients come to the Property, as they exclusively perform outside sales. (Hr'g Tr. at 19-20, September 22, 2009, R.R. at 91a; Hr'g Tr. at 238, 241, November 10, 2009, R.R. at 310a, 313a.) Additionally, three other tenants operate by appointment only. One tenant, the reiki practitioner, has only about three clients per month, and a second tenant has clients who visit on off-hours, i.e., evenings and weekends. (Hr'g Tr. at 19-20, September 22, 2009, R.R. at 91a-92a; Hr'g Tr. at 251, November 10, 2009, R.R. at 323a.) Finally, even Mrs. Gross indicated that many of the parking problems were caused by an insurance group that occupied most of the building. (Hr'g Tr. at 221, November 10, 2009, R.R. at 293a.) Presumably, she was speaking of former tenant Central Penn Management since this was the only tenant that occupied "most of the building," with five of the offices. (FOF ¶ 18.) Accordingly, we conclude that the Board did not err in holding that there has been no expansion of the pre-existing, nonconforming use of the Property based on the occupancy limit for the Property that was set forth in the 1983 Decision and 2001 Agreement.
Interestingly, the Ordinance permits professional offices in the R-10 Urban Residential District as a conditional use and limits the occupancy of such offices to ten employees; there is no reference to the number of tenants permitted in such offices. (Ordinance § 453, R.R. at 10a-11a.)
Moreover, we agree with Landowners that Harrisburg Gardens and 200 W. Montgomery Avenue are distinguishable from the present matter. In Harrisburg Gardens, the landowner purchased property that had been used primarily as a nursery, earning most of its profits from the sales of plants, trees, and shrubs. Harrisburg Gardens, 981 A.2d at 407. After purchasing the property, the landowner, inter alia, hired additional employees, erected new buildings, and obtained more than half of its sales from the landowner's new business of selling retaining wall and landscaping materials, making topsoil, and crushing rock. Id. at 407-08. The zoning hearing board concluded, based on the increased intensity and concentration of the new business activities, that the change of use was not sufficiently similar to the prior nursery use and, therefore, was not a valid nonconforming use, a continuation of the prior use, or the natural expansion of the prior nursery use. Id. at 408-09. The trial court affirmed, as did this Court on appeal, citing the same factors as the zoning hearing board and noting that the landowner's expansion of the use was not a necessity to provide for the natural expansion and accommodation of increased trade. Id. at 411-12.
In 200 W. Montgomery Avenue, the owner of a property with a nonconforming gas station use with vehicle repair bays sought a special exception to expand that use to include a car wash facility and convenience store. 200 W. Montgomery Avenue, 985 A.2d at 999. The zoning hearing board denied the special exception, and the trial court affirmed. Id. On appeal to this Court, the property owner argued that the proposed car wash use was a continuation of the gas station use, but also asserted that if it was an expansion, the expansion was substantially similar to the gas station use. Id. We disagreed, holding that the proposed car wash use was qualitatively different from the gas service station use because: the changes to the physical layout were significant; the process would be different from the one employed by a gas station; and the car wash required the purchase of specialized equipment. Id. at 999-1000. Moreover, we held that an expansion of a nonconforming use was proper when it was needed to accommodate increased trade and that the property owner had not shown that the car wash and convenience store was necessary due to increased trade of the gas service station, particularly where the existing retail sales were a mere 2% of the gas station's revenue. Id. at 1000.
Here, unlike in Harrisburg Gardens and 200 W. Montgomery Avenue, the use of the Property has not changed. In 1983, the Property was used as a professional office building with ten employees and, in 2001, it became a multi-tenant professional office building with no more than ten employees by agreement with the Borough. The Property remains a multi-tenant professional office building with no more than ten employees. Additionally, in contrast to 200 W. Montgomery Avenue and Harrisburg Gardens, there has been no increase in the intensity in the use of the Property. There has been no increase in the number of employees, the process between the pre-existing, nonconforming use as a professional office building and the current use remains the same, and there has been no purchase of specialized equipment to engage in the current use of the Property. Accordingly, 200 W. Montgomery Avenue and Harrisburg Gardens do not require a different result.
Because we conclude that there is no expansion, we will not address the Borough's alternative argument that we should consider the traffic and parking problems associated with the expansion of the use in determining whether the expansion was properly granted pursuant to Timber Place Associates v. Plymouth Township Zoning Hearing Board, 430 A.2d 403 (Pa. Cmwlth. 1981).
The Borough next argues that the trial court's decision should be reversed because Landowners failed to establish that they would suffer any hardship by having to use the Property in conformity with the 2001 Agreement, i.e., maintain only four commercial tenants on the Property. The Borough asserts that the Board, by implication, granted the variances requested by Landowners without explicitly addressing Landowners' request and without requiring Landowners to prove the hardship necessary to obtain a variance under the Ordinance and Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10910.2. Landowners argue that the Board neither granted any variances, nor did it need to, because the Board agreed with Landowners that their use of the Property was the continuation of the pre-existing, nonconforming use. We agree with Landowners that, although the Board, in its determination, referred to the typical factors involved in granting a variance, i.e., a hardship that is not self-created but is caused by the unique characteristics of the property and which does not adversely affect the public welfare, health, and safety, Section 910.2 of the MPC, Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 255-57, 721 A.2d 43, 46-47 (1998), the Board did not grant a variance because it was unnecessary to do so when it concluded that Landowners use was a continuation of the pre-existing, nonconforming use.
Act of July 31, 1968, P.L. 805, added by Section 89 of the Act of December 21, 1988, P.L. 1329. --------
Next, both Landowners and the Borough challenge the conditions imposed by the Board. For their part, Landowners argue that the Board exceeded its authority, committing an error of law, and abusing its discretion by imposing conditions on its grant of non-conformity for the Property where Landowners were not proposing to expand or change the current use of the Property. Landowners acknowledge that certain of the conditions are set forth in the Ordinance, superseded by other applicable law, or were agreed to by Landowners and, therefore, are valid. Thus, they challenge only the following four conditions:
d. The office maximum number of total employees of all tenants of the professional building shall not exceed nine (9).
l. [Landowners] shall construct on the . . . Property between the three parking spaces at the rear of the [P]roperty [. . .] a fence barrier suitable to prevent vehicular travel across this area to access the driveway on 3618 St. Lawrence Avenue, and such fence shall comply with all applicable [O]rdinances.
p. [Landowners] shall be responsible to maintain the alley from the easternmost [(sic)] property line of the . . . Property to Walnut Street.
q. The Decision of the . . . Board is based on the current tenants and the kind or type of businesses conducted by the current tenants.
In the event the kind or type of tenant changes resulting in an increased intensity of use and/or higher volume of traffic at the . . . Property, [Landowners] shall be required to appear before the . . . Board for re-evaluation and further zoning relief.(Landowners' Br. at 19-20.) Specifically, Landowners contend that: condition (d) is not supported by any provision in the Ordinance or any other governmental regulation and, in fact, the 2001 Agreement established the maximum number of employees on the Property to be ten; condition (l) is not supported by the Ordinance or other law; there is no Ordinance, other regulatory requirement, or restriction in the deed or other recorded document to support condition (p); and condition (q) is subjective and unreasonably susceptible to interpretation, misunderstanding, and confusion and, therefore, prejudicial to Landowners and negatively impacts their property rights. The Borough asserts that the imposition of conditions was proper because the Board essentially granted either a variance or a special exception to expand the pre-existing, nonconforming use, but that the conditions are insufficient to protect the Property's neighbors and nearly impossible for the Borough to enforce without considerable expense.
We agree, in part, with Landowners that because the evidence established and the Board found that Landowners were not changing or expanding the nonconforming use, the Board could not impose conditions. It is only when a zoning hearing board is granting an extension of a nonconforming use that it has the authority to impose reasonable conditions, safeguards or restrictions as a requirement for the expansion of the use. Everson v. Zoning Board of Adjustment, 395 Pa. 168, 171, 149 A.2d 63, 66 (1959); Hill v. Zoning Hearing Board of Maxatawny Township, 597 A.2d 1245, 1248 (Pa. Cmwlth. 1991).
Where a zoning board . . . finds that a use is permitted of right under the zoning ordinance, there is no basis for the imposition of restrictions on the use greater than those specified in the ordinance itself. It is otherwise where a zoning application involves a request for a special exception, variance or an extension of a nonconforming use. These types of applications require a determination that the permission, if granted, will not be injurious to the public interest. The zoning board necessarily has power, then, to impose restrictions designed to mitigate the objectionable features of a proposal.Section 9.4.18 of Pennsylvania Zoning Law and Practice, Robert S. Ryan, Volume 2, 144-45 (2012) (emphasis added). Where, as here, there has been no request to expand the use of the Property, the Board erred in imposing the challenged conditions on the continuation of the pre-existing, nonconforming use. However, we note that with respect to condition (q), this condition reflects only the requirement set forth in Section 705(3) of the Ordinance, which mandates that a property owner must obtain a special exception to expand a pre-existing, nonconforming use. (Ordinance § 705(3), R.R. at 21a.)
For the foregoing reasons, we affirm that part of the trial court's Order denying the Borough's appeal and reverse that part of the trial court's Order denying Landowners' appeal from the Board's imposition of the four specific conditions on the continuation of the pre-existing, nonconforming use.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 21, 2012, the Order of the Court of Common Pleas of Berks County in the above captioned matter is hereby AFFIRMED to the extent that it denied the appeal of The Borough of St. Lawrence from the determination of the Zoning Hearing Board of The Borough of St. Lawrence (Board) and is REVERSED to the extent that it denied the appeal of Raffaele DiBiase and Catherine DiBiase (Landowners) challenging four of the conditions imposed by the Board.
/s/ _________
RENÉE COHN JUBELIRER, Judge