Opinion
No. 2333 C.D. 2008.
Argued: June 8, 2009.
Filed: July 23, 2009.
BEFORE: JUBELIRER, Judge; FLAHERTY, Senior Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
BGS Associates, L.P. (BGS) appeals from an order of the Court of Common Pleas of Pike County (trial court) denying BGS's land use appeal from the decision of the Zoning Hearing Board of Lehman Township (Board) which denied BGS's request for dimensional variances and its challenge to the substantive validity of the Lehman Township Zoning Ordinance (Ordinance). We affirm.
In its brief to this court, BGS only challenges the Board's denial of its request for dimensional variances. It does not challenge the substantive validity of the Ordinance.
BGS owns two adjacent parcels of land near the intersection of U.S. Route 209 and Bushkill Falls Road in Lehman Township (Property). The Property fronts on Route 209 and is surrounded by federal government lands which are part of the Delaware Water Gap National Recreation Area. The Property is in the Village Commercial (VC) zoning district under the Ordinance. Located on the Property is a historic building commonly known as the Bushkill General Store, which had previously been used as a general store and delicatessen but which has been vacant and unused since approximately 2005. Also on the Property is another vacant building that was previously used as a residence. The two buildings were joined together at some point to form an "L" shaped building. To the rear of the Property, behind the two buildings, is an existing septic system and reserve area for another septic system, in case the first one fails.
Entry to the Property from Route 209 is largely obstructed by the two vacant buildings. There is an area approximately 12-15 feet wide to the right of the buildings for access to the Property from Route 209. Any further access would require travel across the adjoining federal government lands.
BGS seeks to lease the Property for use as medical offices, a use that is permitted by the Ordinance in the VC district. However, under the Ordinance, a medical office requires five (5) off-street parking spaces for each physician plus 1.2 spaces for each employee. BGS expects its lessee to have five physicians and eight employees, thus, a minimum of 34.6 parking spaces would be required. Under the Ordinance, every commercial use that is permitted by right in the VC district would require some off-street parking. Due to the Property's current location and the configuration of the buildings, BGS contends that there is no space available to serve a commercial use while meeting the off-street parking requirements of the Ordinance.
Testimony revealed that off-street parking was available on the Property for customers of the General Store. R.R. at 192a-193a. Testimony also revealed that the Property was accessible by vehicle and was capable of providing numerous off-street parking spaces without modification. R.R. at 192a-193a; 202a-203a. Further, BGS admitted that it installed a septic system in the back of the Property (R.R. at 125a), thus eliminating some off-street parking on the Property.
On February 28, 2008, BGS filed an application with the Board for variances from certain specifically listed sections of the Ordinance or, alternatively, for a validity challenge to the zoning ordinance. On April 10, 2008, a hearing was held before the Board, and by oral vote, the Board members denied BGS's requested relief. On April 21, 2008, the Board issued a written decision denying the relief requested by BGS. The Board found that BGS "failed to present any evidence or testimony as to what unique physical circumstances or conditions peculiar to the property prohibited it from being used for any permitted use with or without modifications." Board's Decision, Conclusions of Law No. 7 at 8.
The Board further determined that BGS failed to establish that the Property could not be reasonably used in compliance with the Ordinance. Specifically, the Board found that the Property can be used for residential purposes (a use permitted in the CV district), for non-intensive non-residential uses, or for the proposed commercial use with or without possible modifications, or as a less intense version of the proposed commercial use. Board's Decision, Conclusion of Law No. 8 at 8. The Board determined that BGS did not establish the necessary hardship for approval of a variance under the Ordinance nor did it establish that the hardship was not self-inflicted.
On May 16, 2008, BGS appealed to the trial court. Lehman Township (Township) intervened on June 5, 2008. On November 7, 2008, the trial court, without taking additional evidence, denied BGS's appeal. The trial court stated in pertinent part as follows:
It is apparent that what the Appellant has tried to do here is pursue the use it finds most desirable. While Appellant may be able to show some hardship, it has failed to prove that a substantial burden accompanies all dimensionally compliant uses of the property. Since Appellant has not been able to establish that it meets the five factors for granting a dimensional variance, this Court agrees with the Zoning Hearing Board of Lehman Township that a dimensional variance would not be appropriate in this matter. . . . Appellant's Land Use Appeal is hereby DENIED.
Trial Court Decision, November 7, 2008, at 5. On December 5, 2008, BGS appealed to our court.
Our review in a zoning matter, where no additional testimony or evidence has been taken, is limited to a determination of whether there has been a clear error of law or a manifest abuse of discretion. Isaacs v. Wilkes-Barre City Zoning Hearing Board, 612 A.2d 559 (Pa.Cmwlth. 1992). A zoning hearing board abuses its discretion when its factual findings are unsupported by substantial evidence. Valley View Civic Ass'n. v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).
BGS contends that the Board abused its discretion and committed an error of law in denying BGS's variance requests because the Property cannot accommodate off-street parking for any permitted commercial use under the Ordinance.
In order to obtain a variance, an applicant must establish the following: (1) that unique physical characteristics of the property, rather than the operation of the zoning ordinance, create an unnecessary hardship; (2) that because of the unique physical characteristics of the property, the property cannot be developed in conformity with the provisions of the zoning ordinance and the "authorization of a variance is therefore necessary to enable the reasonable use of the property;" (3) that the hardship is not self-inflicted; (4) that the grant of the variance will not alter the character of the neighborhood or adversely affect possible future development of adjacent property; and (5) that the variance sought is the minimum that will afford relief and represent the least modification possible of the regulation at issue. Sombers v. Stroud Township Zoning Hearing Board, 913 A.2d 306, 309 (Pa.Cmwlth. 2006); See also, Section 910.2 of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
BGS relies upon Hertzberg v. Zoning Hearing Board of Upper Moreland Township, 554 Pa. 249, 721 A.2d 43 (1998), to support its position that it met its burden in its quest for variances. In Hertzberg, our Supreme Court stated that a reviewing court "may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood" when deciding whether to grant a dimensional variance. Id. at 264, 721 A.2d at 50.
BGS contends that the existing configuration of buildings and improvements on the Property do not leave sufficient room to meet the current off-street parking requirements under the Ordinance. It states that the Property does not have adequate off-street parking for any commercial use. BGS states that the Property was formerly used for a commercial purpose and that the adjoining federal land was used for parking at that time. The Board found that BGS admitted that installing off-street parking spaces on the Property was possible with modifications. Board's Decision, F.F. No. 13 at 5. The Board also found that BGS's proposal to use the federal lands for its off-street parking was insufficient evidence, as BGS "was unable to produce a Lease Agreement with the Federal Government for the use of the adjoining property." Id., F.F. No. 14 at 5. The Board further found that testimony did not support BGS's contention that the federal lands were used for parking when the Property was used as a general store. Id., F.F. Nos. 15-16 at 5. The Board concluded in pertinent part as follows:
8. Although the Applicant contends that the physical conditions of the property make it impossible to reasonably use the property in strict conformity with the . . . Ordinance, the argument ignores the fact that the property could be used for residential purposes, or other non-intensive permitted non-residential uses, or the proposed commercial use with or without possible modifications, or a less intense version of the proposed commercial use. As such, the Board concludes that the property could reasonably be used as zoned, and no variances are necessary to use the property in strict conformity with the . . . Ordinance.
However, in Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa.Cmwlth. 2001), our court affirmed the trial court's reversal of the Zoning Hearing Board of the City of Allentown's grant of a variance and set forth the following:
Ever since our Supreme Court decided Hertzberg, we have seen a pattern of cases arguing that a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted. Hertzberg stands for nothing of the kind. Hertzberg articulated the principle that unreasonable economic burden may be considered in determining the presence of unnecessary hardship. It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. . . . A variance, whether labeled dimensional or use, is appropriate "only where the property, not the person, is subject to hardship."
Id. at 598 (citations omitted, emphasis in original). Our court determined that the owner was not entitled to a variance as his property was "well suited to the purpose for which it [was] zoned and actually used." Id.
Our court further addressed Hertzberg in Society Created to Reduce Urban Blight v. Zoning Hearing Board of Adjustment of the City of Philadelphia, 771 A.2d 874 (Pa.Cmwlth. 2001). In Society Created to Reduce Urban Blight, we stated in pertinent part as follows:
[W]hile Hertzberg eased the requirements for granting a variance for dimensional requirements, it did not make dimensional requirements . . ."free-fire zones" for which variances could be granted when the party seeking the variance merely articulated a reason that it would be financially "hurt" if it could not do what it wanted to do with the property, even if the property was already being occupied by another use. If that were the case, dimensional requirements would be meaningless — at best, rules of thumb — and the planning efforts that local governments go through in setting them to have light, area (side yards) and density (area) buffers would be a waste of time. Moreover, adjoining property owners could never depend on the implicit mutual covenants that placing dimensional restrictions on all property would only be varied when there were compelling reasons that not to do so would create a severe unnecessary hardship.
Id. at 877-878.
Our court, once again, addressed Hertzberg in Township of East Caln v. Zoning Hearing Board of East Caln Township, 915 A.2d 1249 (Pa.Cmwlth. 2007). In East Caln, our court reversed the decision of the trial court and determined that Cingular Pennsylvania, LLC d/b/a Cingular Wireless, LLC (Cingular) failed to establish the criteria necessary for the grant of a dimensional variance. We stated in pertinent part as follows:
The ZHB based its finding of unnecessary hardship solely upon the life-safety issue posed by the coverage area gap in Cingular's wireless service. . . . However, the well-established law does not permit the grant of a variance on the basis that it is in the public interest. A variance may be granted only upon proof that a substantial burden attends all dimensionally compliant uses of the applicant's property, which is simply not the case here. Among other uses permitted by the ordinance, the property can continue to be used to house the existing one hundred three foot telecommunications tower as well as the self-storage facility. While Cingular evaluated alternative sites and concluded no other sufficed, this does not establish a hardship that attends the property, as distinguished from its owner. . . . Therefore, Cingular has not met its burden to show unnecessary hardship that will justify a variance. . . . (citations omitted).
Id. 915 A.2d at 1254.
The present controversy is similar to East Caln, in that BGS failed to establish a substantial hardship for all dimensionally compliant uses of the Property. Like East Caln, the Ordinance allows other permitted uses, such as the continued use of the Property as a residence. The Property, as it exists, meets all the Ordinance requirements. It is only when BGS proposes to change the use that a hardship is created, thus, making the hardship self-inflicted. BGS does not suffer a hardship if it leaves the Property as it is.
BGS cites to Mitchell v. Zoning Hearing Board of the Borough of Mount Penn, 838 A.2d 819 (Pa.Cmwlth. 2003), in support of its contention. In Mitchell, a school district sought permission to convert an old high school building into an elementary school and there was insufficient space to accommodate the required off-street parking under the zoning ordinance. Mitchell is distinguishable from the present controversy in that the school had no other possible uses that would comply with the zoning ordinance. BGS has the option of using the Property as a residence, which would comply with the Ordinance.
The trial court did not err or abuse its discretion in affirming the Board. Accordingly, we affirm the order of the trial court.
BGS further contends that Zoning Hearing Board of the Township of Indiana v. Weitzel, 465 A.2d 105 (Pa.Cmwlth. 1983), applies to the present controversy, in that the Board is requiring BGS to either use the building for residential purposes or demolish the building and start over. We see nothing in the record to indicate such ultimatum was presented to BGS by the Board. The Board set forth in Conclusion of Law No. 8 various options for BGS that do not limit the use to residential, nor do they require the demolition of the buildings. See Conclusion of Law No. 8 at 8.
ORDER
AND NOW, this 23rd day of July, 2009 the order of the Court of Common Pleas of Pike County in the above-captioned matter is affirmed.
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10. Assuming that the property does not have adequate off-street parking to accommodate the proposed and intended purpose (which was something that was not shown during the hearing), the record is devoid of any evidence that the property could not be used for its intended purpose with reasonable modifications, or could not be used for another permitted use, or has no value or distressed value as zoned.
Board's Decision, Conclusions of Law Nos. 8 and 10 at 8.