Opinion
No. 2341 C.D. 2014
07-28-2015
Borough of West Chester, Ali and Brigit Hassan, h/w, and Catherine B. Sadler v. Zoning Hearing Board of the Borough of West Chester, and Catherine B. Sadler Appeal of: Ali Hassan and Brigit Hassan
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Ali and Brigit Hassan (Objectors) appeal from the November 25, 2014 Order of the Court of Common Pleas of Chester County (trial court) affirming the Decision of the Zoning Hearing Board of the Borough of West Chester (ZHB) to grant a dimensional variance from the minimum lot requirements for two-family dwellings for Catherine B. Sadler's (Applicant) property located at 212 Price Street in West Chester, Pennsylvania (Property). On appeal, Objectors argue that Applicant was not entitled to a variance because any hardship that would result from having to convert the Property from a two-family dwelling into a one-family dwelling was self-imposed. Upon review, we affirm on the basis of the trial court's reasoning as set forth in its Order.
Although the Borough of West Chester appealed the Decision of the ZHB to the trial court and is listed as an appellant, it has filed a Notice of Non-Participation in the appeal from the Order of the trial court. Moreover, because Applicant did not timely file a brief with this Court, she was precluded from filing a brief in this matter.
Rather than file a separate formal opinion, the trial court set forth its reasoning in a lengthy four page footnote to its Order.
The Property is residential and is located within "the NC-2 Zoning District, Block Class B." (ZHB Decision, Findings of Fact (FOF) ¶¶ 1, 3.) In 1952, the Property was purchased by Applicant and her late husband. (FOF ¶ 5.) Since at least the 1950's, the Property has been used as two separate residential units: Applicant and her family lived in a unit on the first floor, while the second and third floors were rented as a separate unit to various individuals. (FOF ¶¶ 6-7.)
Applicant is over 100 years old and recently moved out of the Property and into a skilled nursing facility. (ZHB Hr'g Tr. at 12, R.R. at 021a.) After Applicant moved out of the Property, Applicant's daughter, Cathy A. Sadler, became interested in selling the Property due to the costs associated with maintaining the Property. (ZHB Hr'g Tr. at 13, R.R. at 022a.) After Cathy A. Sadler looked into selling the property, she discovered that it lacked a rental permit for the upstairs unit. (Zoning Application, R.R. at 009a; ZHB Hr'g Tr. at 13, R.R. at 022a.) Applicant sought rental permits from the Borough, which were denied "since the Borough had no record that two dwelling units existed on the Property and since there [was] insufficient lot area for two dwelling units under the current West Chester Borough Zoning Ordinance (Zoning Ordinance)." (FOF ¶ 12.) Accordingly, Applicant appealed the denial to the ZHB seeking rental permits and a dimensional variance for the Property. (Zoning Application, R.R. at 009a.)
The current Zoning Ordinance allows "two-family dwellings in the NC-2 District and requires 3000 square feet of lot area for each dwelling unit." (FOF ¶ 10 (citing Zoning Ordinance § 112.21A).) Because the lot area of the Property is 4,125 square feet, it "does not comply with the minimum lot area per dwelling unit for two units" under the current Zoning Ordinance. (FOF ¶ 11.)
On July 8, 2013, the ZHB conducted a hearing in which several people, including Cathy A. Sadler, testified. Following the hearing, the ZHB made the following relevant findings of fact.
13. When the two units were created, the 1939 Zoning Ordinance was in effect.
14. The Property was in the B Residence District under the 1939 Ordinance, which permitted "Double Dwellings," "Two-Family Dwellings" and "Multiple Dwellings" as defined by the 1939 Ordinance.
15. Double and Two-Family Dwellings required 2,500 square feet of lot area per family; Multiple Dwellings required 1,600 square feet of lot area per family.
16. [Applicant] asserts that the two dwelling units were lawful as "Multiple Dwellings" when they were created, and therefore the use
of the Property as two dwelling units is a lawful non[-]conforming use.(FOF ¶¶ 13-19.)
17. The Property owner has expended substantial sums of money maintaining the Property as two units; most recently a new kitchen was installed in the second/third floor unit.
18. In order to convert the Property to a single dwelling unit, the downstairs bathroom and the upstairs kitchen would need to be removed, and other changes would be required at substantial cost.
19. There are several buildings in the 200 block of Price Street which contain more than one dwelling unit.
The parties stipulated that, at the time that the two dwellings were constructed on the Property, the 1939 Zoning Ordinance was in effect. (ZHB Decision at 4.)
The ZHB determined that the Property was a two-family dwelling as defined under the 1939 Zoning Ordinance. (ZHB Decision, Conclusions of Law (COL) ¶ 3.) The ZHB concluded that under the 1939 Zoning Ordinance each of the two "unit[s] required 2,500 square feet of lot area." (ZHB Decision at 4.) Because at the time the two units were created there was not 2,500 square feet of lot area for each unit, the ZHB determined that the Property was not a lawful non-conforming use under the 1939 Zoning Ordinance. (COL ¶¶ 4-5.) However, the ZHB concluded that "[t]here is unnecessary hardship for a dimensional variance based on the factors presented in the case; including the long use of the Property as two units; the substantial cost to renovate the Property into one unit; and the existence of other multi-unit uses in the neighborhood." (COL ¶ 6.) The ZHB also concluded that a variance would "not have an adverse effect on the health, safety and welfare of the neighborhood." (COL ¶ 7.) Accordingly, the ZHB denied the appeal from the denial of the rental permits, concluding that the two-unit use was not a lawful non-conforming use, but granted a dimensional variance from the minimum lot area requirement of the Zoning Ordinance in order to permit two dwelling units at the Property.
Objectors appealed the ZHB's granting of the variance to the trial court. Applicant filed a cross-appeal contesting the ZHB's conclusion that the Property was not a lawful non-conforming use. The trial court concluded that the ZHB correctly analyzed the 1939 Zoning Ordinance in determining that the Property was a two-family dwelling. (Trial Ct. Order at 3.) The trial court also concluded that the Board correctly determined that the Property's conversion to a two-family dwelling in the 1950's had not complied with the 1939 Zoning Ordinance and that, therefore, the Property was not "lawfully non[-]conforming relative to the required minimum lot size sufficient to support two dwelling places under the 1939 [Zoning O]rdinance." (Trial Ct. Order at 3-4.)
The trial court, however, concluded that the ZHB did not commit an error of law or abuse its discretion in granting a dimensional variance. (Trial Ct. Order at 4.) The trial court noted that the Borough was unable to locate in its records, and that the Applicant was unable to produce, a zoning permit that authorized the conversion of the Property to a two-family dwelling. (Trial Ct. Order at 4.) However, the trial court concluded that Applicant's "[P]roperty ha[d] been continuously used for 59 years as a two-family dwelling without altering the essential character of the Price Street neighborhood, . . . impairing the residential use of adjacent properties, or adversely affecting the public welfare." (Trial Ct. Order at 4.) The trial court also noted that Applicant did not create her own hardship because "her lot was noncompliant in minimum required area for even a one-family dwelling under the 1939 [Z]oning [O]rdinance." (Trial Ct. Order at 4.) The trial court further determined that the Chester County tax assessment parcel record for the Property, "introduced in evidence as Exhibit A-12, describe[d] the property as 'Lots & Apts,' which arguably provided some modicum of constructive notice to Borough Officials of the property's historic use over the past 59 years" as a two-family dwelling. (Trial Ct. Order at 4.) Therefore, the trial court concluded that "[a]t the very least, the property has existed as presently configured without upsetting Borough officials and its code enforcement officers." (Trial Ct. Order at 4-5.)
Moreover, the trial court determined that although Applicant
did not produce specific evidence of the present day cost to reconvert the [P]roperty to a one-family dwelling, there was evidence of the need to remove one bathroom and one kitchen in doing so [and that] [i]t is obvious that such required renovations will be expensive in today's market relative to the fair market sale or rental value of the [P]roperty.(Trial Ct. Order at 5.) Noting that under Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998), dimensional variances are subject to a more relaxed standard than use variances, the trial court decided that Applicant was not required to demonstrate that the Property would be rendered valueless without the variance. (Trial Ct. Order at 5.) Accordingly, the trial court concluded that "it was not error for the [ZHB] to grant the dimensional variance since the historic use of the property [w]as a two-family dwelling" and that the variance "represent[ed] no more than a de jure recognition of a long-standing de facto condition of the property in relation to its historic use." (Trial Ct. Order at 5.) Thus, the trial court held that the ZHB did not abuse its discretion in permitting a reasonable lot area variance. (Trial Ct. Order at 4.)
On appeal, Objectors argue that the ZHB erred in granting Applicant a dimensional variance. Objectors first argue that there is not substantial evidence for the ZHB's factual determination that bringing the Property into compliance with the Zoning Ordinance would cause Applicant significant financial hardship. Objectors also contend that the ZHB could not grant a variance because any hardship resulting from having to convert the Property into a single family dwelling is self-imposed.
Our review in a zoning case, where the trial court has taken no additional evidence, "is limited to determining whether the [ZHB] committed a manifest abuse of discretion or an error of law." Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). The ZHB will be found to have "abused its discretion only if its findings are not supported by substantial evidence[,] . . . mean[ing] such relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Id. at 640. --------
The issues raised in this appeal were thoroughly analyzed and the matter ably disposed of in the comprehensive reasoning set forth in the Order of the Honorable Ronald C. Nagle. Therefore, we affirm on the basis of his order/opinion in In re Appeal of Catherine B. Sadler, (Chester County, No. 2013-07545, filed November 25, 2014).
Accordingly, the trial court's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 28, 2015, the Order of the Court of Common Pleas of Chester County, entered in the above-captioned matter, is AFFIRMED on the basis of the Order issued by the Honorable Ronald C. Nagle in In re Appeal of Catherine B. Sadler, (Chester County, No. 2013-07545, filed November 25, 2014).
/s/ _________
RENÉE COHN JUBELIRER, Judge