Opinion
No. 2719 C.D. 2010
07-01-2011
4154 Roosevelt Street, LLC v. Whitehall Township Zoning Hearing Board and Whitehall Township Appeal of: 4154 Roosevelt Street, LLC
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE BARRY F. FEUDALE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
4154 Roosevelt Street, LLC (Roosevelt) appeals from an order of the Court of Common Pleas of Lehigh County (trial court) affirming the decision of the Whitehall Township Zoning Hearing Board (Board) denying Roosevelt's application for numerous variances, for a special exception for off-site parking, and for a special exception to change from the pre-existing nonconforming use as an industrial building to the nonconforming use as an apartment building. Because Roosevelt failed to meet the requirements for the variances or special exceptions, we affirm.
Roosevelt purchased property in Whitehall Township, Lehigh County in September 2009. The property includes a 46,016 square foot, two-story industrial building located at 4154 Roosevelt Street; a parcel located at 4159 Roosevelt Street which was used for parking; and two parcels located on Truman Street which were also used for parking. Two of these parcels, including the industrial building, are located in a district zoned R5-A High Density Residential Without Apartments, and the remaining two parcels are located in a district zoned R4 Medium Density Residential. Up until 2008, the industrial building was used by V.F. Majestic (Majestic) as a garment manufacturing business, a nonconforming use, and has since been vacant. Roosevelt now proposes to convert the property into an apartment building, another nonconforming use, containing 54 studio apartments as well as a laundry, gym, and courtyard. The studio apartments would range from 445 to 1,000 square feet per unit.
Pursuant to the Whitehall Township Zoning Ordinance (Ordinance), a nonconforming use may only be changed to another nonconforming use by special exception. Applicants for this form of special exception must prove that the entire use is conducted within one building; the building cannot be reasonably modified to contain a conforming use; and the proposed nonconforming use is less detrimental to the general public than the use it is to replace. Therefore, Roosevelt filed an application with the Board for a special exception to convert the property from the previous nonconforming use as an industrial building to a new nonconforming use as an apartment building, as well as for the use of off-site parking facilities. In the alternative, Roosevelt requested variances from numerous sections of the Ordinance, including those regarding apartment density, parking, screening, driveway location, rear and side yard setbacks, density, and impervious coverage.
Subsection (D) of Section 27-60 of the Ordinance, titled "Nonconforming uses" states:
D. Nonconforming uses are further subject to the following:
(6) A nonconforming use may be continued but shall not be changed to another nonconforming use except by special exception from the Zoning Hearing Board and when all of the following conditions are met to the satisfaction of the Zoning Hearing Board:
(a) All of the proposed use is conducted within a building.
(b) The building cannot reasonably be modified to contain a conforming use.
(c) The proposed nonconforming use is less detrimental to its neighborhood, surroundings and the general public welfare than the use it is to replace. The Zoning Hearing Board shall take into consideration all factors which might affect the public's interest including: traffic generated, nuisance characteristics such as emission of noise, odor, dust and smoke, fire hazards and hours and manner of operation.
In addition to the requirements of Section 27-60(D)(6), an applicant for a special exception must meet the requirements of Section 27-45 of the Ordinance, "Special exception and conditional use submission, review and decision procedures and requirements," which states:
E. The Zoning Hearing Board and Commissioners shall approve any special exception or conditional use which meets all of the provisions of this chapter, and:
(1) The proposed use:
(a) Is in accord with the existing Comprehensive Plan and the spirit, intent and purpose of this chapter.
(b) Is in the best interests of the Township.
(c) Is suitable for the site chosen.
(d) Is designed, maintained and used so as to be in harmony with adjacent properties in the immediate vicinity.
(2) The proposed use permits the logical, efficient, safe and economic extension of public services and facilities, including but not limited to water, sewer, stormwater controls, schools, police and fire protection.
(3) The proposed use does not:
(a) Substantially increase traffic congestion on the streets.
(b) Increase the danger of fire or panic or otherwise endanger the public safety.
(c) Overcrowd the land or create an undue concentration of population.
(d) Impair an adequate supply of light and air to adjacent property.
(e) Adversely affect the comprehensive plan of the Township.
(f) Unduly burden water, sewer, school, park or other public facilities.
(g) Endanger the safety of persons or property by improper location or design of facilities for ingress or egress.
(h) Otherwise adversely affect the public health, safety or general welfare.
(i) Violate any Federal or State law, statute, rule, directive or regulation.
(j) Interfere or encroach upon any wetlands or floodplains.
(4) The proposed use is not:
(a) Inconsistent with the surrounding zones and uses.
(b) Detrimental to the appropriate use of adjacent property.
Subsection M of Section 27-145 of the Ordinance, titled "Design and construction," states:
M. Required off-street parking shall be on the same lot, parcel or tract as the principal use, or, if permitted by special exception, not to be on the same lot, parcel or tract, then within 300 feet of the principal use and within the same zoning district, provided that customers are not required to transverse an arterial road without the aid of a cross walk, tunnel or overpass. In the event that parking is allowed off-site, the applicant shall provide a legally valid lease agreement or other agreement authorizing the use of the off-site property, it being expressly understood that at such time as the lease or agreement terminates, any occupancy of the building permitted by the off-street off-site parking will either cease and desist, terminate or not be permitted until such time as the lease or agreement is revived.
Nat Hyman, a principal in Roosevelt, testified before the Board that the existing structure was built around 1910 and had always been used for garment manufacturing. According to Mr. Hyman, there were many complaints regarding the building's prior use, including complaints about parking, noise, people coming and going late at night, and loitering and noise-making late into the night. While the building was considered a historical structure, Mr. Hyman testified that members of the Board of Commissioners and the Township Planning Commission recommended that the old garment building be turned into an apartment complex.
Roosevelt's proposed plan included 44 units on the ground floor and an additional 10 units on the second floor, all of which would be efficiency or studio apartments. According to Mr. Hyman, the fact that the apartments would all be efficiencies would mean that single people, couples or the elderly would comprise most of the tenants, not families, and this would lessen the burden on the municipality and the school district. There would not be any outside amenities other than parking and a communal area possibly containing picnic benches. Despite the fact that the building was located within a high density residential zoning district, the Ordinance stated that a property could have a maximum of 8 apartment units per acre, which, in this case, would translate to approximately 5,700 square feet per unit. Mr. Hyman stated that apartments of this size would obviously not be marketable.
According to My Hyman the proposed use was in the best interests of the Township, was consistent with and met the goals of the Comprehensive Plan, and reduced traffic, congestion, and the impact on area schools. Mr. Hyman testified that the site was suitable for apartment use, had adequate parking at 108 spaces, and the proposed use was in harmony with adjacent properties because it was in the middle of a residential neighborhood. The site already had public water and public sewer, it had a full sprinkler system, each apartment would have its own smoke detection system, and the proposed use would not overcrowd the land or create an undue concentration of population. According to Mr. Hyman, the proposed use would not impair the adequate supply of light and air to adjacent properties because Roosevelt was not planning on changing the building's exterior. He also stated that the traffic generated by the apartment use would be less than that generated by the previous manufacturing use. Mr. Hyman testified that the south side of the pre-existing building extended right up to the sidewalk which meant the property could not possibly comply with the Ordinance's setback requirements.
Mr. Hyman admitted that while theoretically the property could be used as a church, school, day care center, indoor recreation facility, or for municipal purposes, it was not economically viable to convert the building to such uses, and in his opinion, the building could not reasonably be modified to contain a conforming use. Mr. Hyman testified that the building was obsolete for purposes of distribution, manufacturing and storage, and that there was little to no manufacturing in the Allentown area. Roosevelt attempted to market the property and ran ads in Pennsylvania, New Jersey and New York, but did not receive any calls. On cross-examination, Mr. Hyman admitted that Roosevelt did not attempt to market the property specifically for use as a church, day care center, or for municipal purposes. He also admitted that the property could be used as a garment manufacturing operation, but claimed "there is nobody out there to lease it to for garment manufacturing purposes." (Reproduced Record at 115a). Mr. Hyman admitted that Roosevelt could propose less than 54 apartment units, but because of the size of the building, portions would remain that were not utilized and if the size of the units were much bigger, the utility costs would be prohibitive. He also admitted that Roosevelt made the decision to propose a 54-unit apartment building because that was in its best financial interest.
Nicole Capobianco, director of club outfitting for the previous owner Majestic, testified that she was responsible for the general operations of the facility. Ms. Capobianco testified that during the time frame that she worked at Majestic, she was aware there were complaints from neighbors regarding the facility's noise level, parking issues and odors. At various times of the year Majestic ran three different shifts, with over 50 employees on the first shift and around 35 employees during the second and third shifts. According to Ms. Capobianco, approximately 40 cars were parked on Majestic's lots during the first shift and approximately 20 cars were parked during the second and third shifts. Majestic's facility received two daily deliveries from box trucks, which could increase to up to six deliveries during the busy season, and other deliveries throughout the day from FedEx, UPS, tractor trailers, and vending machine servicers. Majestic was acquired by VF Corporation in 2007. Because VF Corporation had recently built a state-of-the-art garment manufacturing facility which absorbed Majestic's production, Majestic no longer had a use for the facility. Majestic marketed the property for commercial and light manufacturing use, but only one party expressed interest and nothing materialized.
On cross-examination, Ms. Capobianco stated that she had counted the number of employees on each shift but she did not count the number of cars parked in Majestic's lots. She agreed that the highest number of employees on site would be during the change from first to second shift, and that the 85 employees would be less than the 108 tenants proposed by Roosevelt. Ms. Capobianco admitted that Majestic sold the property because it had no use for the building, not because the building itself was obsolete.
Joseph Genay, a licensed realtor, certified commercial appraiser and associate broker, testified that most of the residences within the vicinity of the former garment manufacturing facility ranged from 960 to 2,150 square feet. If the site were developed in strict compliance with the Ordinance with only 8 units at approximately 5,700 square feet, that would be out of character with the neighborhood and would not be economically feasible. Mr. Genay testified that there was no market in the Township for three bedroom apartments or apartments with 2,500 total square feet, let alone 5,700 square feet. Mr. Genay testified that the property was listed for 21 months in the Tri-State commercial system, which approximately 2,500 commercial and industrial brokers had access to. According to Mr. Genay, developing the property with 54 efficiency apartments would not change the character of the neighborhood or be a detriment to the area; instead he believed it would enhance the area. Mr. Genay testified that he has seen buildings such as this converted to churches or schools, but he did not think such uses were economically feasible for this property. He also testified that the "needle trade" has almost vanished from the Lehigh Valley and that these buildings were usually converted to residential uses or abandoned. According to Mr. Genay, the relief requested by Roosevelt was necessary to re-develop the property to an economically viable use. On cross-examination, Mr. Genay admitted that the majority of the neighborhood at issue was made of single family dwellings and there were no apartment buildings in the neighborhood.
Roosevelt also presented the testimony of Harold "Bud" Newton, a professional engineer and professional land surveyor who testified that his firm was hired to do a survey of the property in 1993 and at that time he identified 106 total parking spaces on all four lots. Based upon Ms. Capobianco's testimony of the number of employees on site during the previous use, Mr. Newton testified that the previous nonconforming use would generate 398 weekday trips. If the property was converted to 54 efficiency apartments, the proposed use would generate 215 weekday trips which would be significantly less than the prior nonconforming use.
Mr. Newton testified that the standard, accepted practice of measuring the number of trips generated by a particular use is based upon the number of employees, not the number of cars on site. He also stated that Ms. Capobianco's testimony regarding the number of cars parked at the facility would not change his opinions.
Dennis Makovsky, an adjacent landowner and objector, testified that during the prior manufacturing use, only around 12 to 15 employee cars would be parked in the lot during the first shift, not 40 cars as testified to by Ms. Capobianco. Mr. Makovsky stated that if Roosevelt did not have to erect fences or landscaping between its parking lot and his property, the light from the parking lot would interfere with and affect his lifestyle. Numerous other adjacent landowners voiced objections to Roosevelt's application citing problems with parking, traffic, noise, general safety concerns, inaccuracies in Roosevelt's traffic engineer's calculations, the lowering of the value of surrounding residences, and the impact on quality of life as a result of the proposed use.
The Board found that Roosevelt failed to meet the requirements for a special exception or the requirements for any of the variances it requested and denied Roosevelt's application. The crucial findings are contained in Finding of Fact number 31 which states in a blanket statement that "[t]he members of the Zoning Hearing Board found that the testimony of the Appellant and Appellant's witnesses was not credible." Finding of Fact number 34 similarly provides in a blanket statement that "[t]he members of the Zoning Hearing Board found the testimony of the objectors to be credible." Based on those blanket credibility determinations, the Board denied the request for a special exception and a variance. The trial court, without taking additional evidence, affirmed the Board's decision. In its well-reasoned and thorough opinion, while acknowledging that Roosevelt's witnesses were not credible, the trial court cited to portions of those witnesses' testimony to support the Board's denial of the requested special exception and variances. This appeal followed.
Because the trial court did not take any additional evidence, our review is limited to determining whether the Board committed an error of law or an abuse of discretion. Glenside Center, Inc. v. Abington Twp. Zoning Hearing Bd., 973 A.2d 10, 15 n.11 (Pa. Cmwlth. 2009) (citations omitted). An abuse of discretion occurs when the findings of the Board are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).
Initially, Roosevelt argues that the Board's blanket statement that it found Roosevelt's witnesses not credible and the objectors' testimony credible rises to a capricious disregard of evidence under our Supreme Court's decision in Leon E. Wintermyer Inc. v. Workers' Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002). In Taliaferro v. Darby Township. Zoning Hearing Board, 873 A.2d 807 (Pa.Cmwlth. 2005), we held that the capricious disregard standard also applied to decisions regarding local zoning. In extending the capricious disregard standard to zoning cases, we noted that our Supreme Court in Wintermyer stated:
Since an adjudication cannot be in accordance with law if it is not decided on the basis of law and facts properly adduced, we hold that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. As at common law, this review will generally assume a more visible role on consideration of negative findings and conclusions. Even in such context, however, this limited aspect of the review serves only as one particular check to assure that the agency adjudication has been conducted within lawful boundaries--it is not to be applied in such a manner as would intrude upon the agency's fact-finding role and discretionary decision-making authority.Wintermyer, 571 Pa. at 203-204, 812 A.2d at 487-488 (footnotes omitted). In Taliaferro, we went on to note that our Supreme Court added the "capricious disregard" standard as a separate component of appellate consideration in reviewing administrative agency decisions.
In this case, the blanket credibility determinations made at Findings of Fact 31 and 34, finding all of Roosevelt's witnesses not credible and all of objectors credible, were the only findings that mattered. While the Board's decision contained 59 alleged findings of fact, there was virtually no factfinding. Findings of Fact 1 to 15 & 17 recounted Roosevelt's proposal; Findings of Fact 16 and 18 through 30 were summaries of Roosevelt's witnesses testimony; Finding of Fact 32 was an objector's testimony as to the number of cars on the lot; Finding of Fact 33 was a number of adjacent landowners' testimony regarding the adverse effect that the proposed use would have on the property; Findings of Fact 35 through 53 were simply conclusions that Roosevelt did not meet the legal standard for the grant of either a special exception or variance with the resolution of any evidence; and Findings of 54 to 59 related to when the hearing was held, that the hearing was duly advertised and such. The discussion portion of the Board's opinion merely set forth the law in the area and, without analysis, concluded that Roosevelt did not meet the standard.
However, because the issue of capricious disregard of evidence was not raised in Roosevelt's notice of appeal to the trial court or in its brief to the trial court, it is waived. Pa. R.A.P. 1551 (No question shall be heard or considered by the Court which was not raised before the government unit.) While we would ordinarily not go into the detail where an issue has been waived, we did so to express, without deciding the issue, that when the Board simply decides the case on the basis of blanket credibility determinations, it does a disservice to those individuals who appeared before it and to the reviewing courts which must examine their decisions.
In its notice of appeal, the only issues raised were that "[t]he Board abused its discretion and committed an error of law because: (a) The decision did not contain rationale as to why the Board's conclusions were deemed appropriate in light of the facts found; (b) Its findings of fact are not consistent with evidence in the record; and (c) The decision is based upon an incorrect application of law."
As to the merits, Roosevelt also argues that the Board abused its discretion by denying its request for a special exception to change the property from a nonconforming manufacturing use to a nonconforming apartment use. According to Roosevelt, it met all of the requirements of Section 60(D)(6) of the Ordinance and proved that the entire use will be conducted within one building; the building cannot be reasonably modified to contain a conforming use; and the proposed nonconforming use is less detrimental to the general public than the use it is to replace. Therefore, Roosevelt argues that the Board should have granted its special exception.
Initially, we point out that the Board, rightly or wrongly, found all of Roosevelt's witnesses not credible. However, other uses which are specifically allowed in the R5 zoning district include municipal uses, churches, schools, indoor recreation areas, and day care centers. Roosevelt's own witnesses testified that it was conceivable that the facility could be used for these purposes, and the Board did not find their testimony regarding prohibitive costs to be credible. Even if we consider Roosevelt's witnesses' testimony, they only made blanket statements that these permitted uses would be prohibitively expensive, and they failed to provide any facts or figures in support of their argument. In addition, Ms. Capobianco and Mr. Hyman admitted that while Majestic had no use for the building, the facility itself was not obsolete but could continue to be used for the pre-existing nonconforming use, that of garment manufacturing, albeit stating that was not likely.
Most importantly, buildings within the R5 zoning district are permitted to have 8 units per every one acre of land. Roosevelt proposed putting 54 units on a one acre parcel of land, which is almost 7 times the number of units allowed. Mr. Hyman specifically stated that the proposal to convert the facility to a 54-unit apartment building was made purely for economic reasons, to maximize profit. He admitted that it is possible for the proposed use to have fewer apartment units and, therefore, meet the Ordinance's density requirements. However, Roosevelt chose not to lower the number of proposed units because it would not be in its best financial interests to do so. Given all of these facts, there is more than substantial evidence to support the Board's determination that Roosevelt failed to meet its burden of proving that the building cannot be reasonably modified to contain a conforming use.
Roosevelt also argues that the Board abused its discretion by denying Roosevelt's application for variances from the Ordinance's requirements regarding apartment density, side and rear yard setbacks, parking setbacks, density, screening, driveway location, and impervious surface coverage. Commenting on the standards for granting a variance under Section 910.2 of the Municipalities Planning Code, 53 P.S. § 10910.2, in Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791, 799 (Pa. Cmwlth. 1996), we stated that:
53 P.S. § 10910.2 provides that:
The board 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 conditions and not the circumstances or conditions generally created by the provisions of the 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 the 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 appellant.
(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, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Although unnecessary hardship usually relates to the physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself. Where the use of property for any purpose is possible only through extensive reconstruction or demolition of the building, it has been held sufficient to establish an unnecessary hardship. Logan Square Neighborhood Association v. Zoning Board of Adjustment, 379 A.2d 632 (Pa. Cmwlth. 1977). In a case similar to the facts in the instant case, Davis v. Zoning Board of Adjustment, 468 A.2d 1183 (Pa. Cmwlth. 1983), we upheld the grant of a variance from the lot area requirements to allow a property owner to rehabilitate and use an abandoned and vacant four-story apartment building located in a residential zone as a seventeen-unit multi-family dwelling. We held that because the premises could not conform with the zoning restrictions absent demolition and reconstruction, an unnecessary hardship existed. Id.; see also Zoning Hearing Board of the Township of Indiana v. Weitzel, 465 A.2d 105 (Pa. Cmwlth. 1983) (holding that where the only options available to a property owner without a use variance were to either convert his three-story school building into a single-family dwelling or demolish the building and subdivide the lot, more than "mere economic hardship" existed and evidence of unnecessary hardship was established).
Roosevelt failed to put forth much testimony at all regarding the requirements for any of the variances it requested. However, it is clear that Roosevelt's request for a variance from the apartment density requirement must fail. As stated above, while the Ordinance permits 8 units per acre of land, Roosevelt proposed 54 apartment units for the structure, almost seven times the number of units which are permitted. Such an enormous increase over the permitted apartment density is not the minimum variance that will afford relief absent some testimony that that was the only number that could be constructed and that the number of units would not be adverse to the public's health, safety and welfare. The only evidence was that of Roosevelt's principal, Mr. Hyman, who admitted that it was possible to propose an apartment building with fewer units but it would not be in Roosevelt's best financial interests to do so. This Court has repeatedly held that economic or financial reasons are not sufficient to satisfy the standard of unnecessary hardship. See A.R.E. Lehigh Valley Partners v. Zoning Hearing Bd. of Upper Macungie Twp., 590 A.2d 842 (Pa. Cmwlth. 1991); Washington Twp. v. Washington Twp. Zoning Hearing Bd., 365 A.2d 691 (Pa. Cmwlth. 1976).
We do note that several of the variances Roosevelt requested could be considered the result of the unique physical circumstances or conditions of the property because the size and location of the existing structure make it impossible for Roosevelt to comply with several requirements of the Ordinance. For example, the uncontroverted testimony establishes that at least the south side of the existing structure extends all the way up to the sidewalk, making it impossible to meet the side yard setback requirement. The fact that the structure takes up the entire lot also makes it impossible for Roosevelt to meet the impervious surface coverage requirement. However, this is moot given the fact that Roosevelt's proposed plan cannot possibly meet the requirements for an apartment density variance.
There is substantial evidence to support the Board's findings that Roosevelt failed to establish the requirements necessary to obtain its requested special exception and variances. Accordingly, the decision of the trial court is affirmed.
/s/_________
DAN PELLEGRINI, Judge ORDER
AND NOW, this 1st day of July, 2011, the order of the Court of Common Pleas of Lehigh County, dated December 8, 2010, at No. 2010-C-0285, is affirmed.
/s/_________
DAN PELLEGRINI, Judge