Opinion
No. 171 C.D. 2011
10-18-2011
Edward Kraynak and Edith Kraynak, Appellants v. Zoning Hearing Board of Forty Fort
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Edward and Edith Kraynak (Landowners) appeal an order of the Court of Common Pleas of Luzerne County (trial court) affirming the decision of the Zoning Hearing Board of Forty Fort Borough (Board) denying their application for a variance and a special exception. The Board determined that the proposed use did not qualify as a continuation of a lawful nonconforming use and that Landowners failed to satisfy the requirements for a variance. Discerning no error in the Board's decision, we affirm.
Landowners own a 0.15 acre parcel of property located at 1271 Wyoming Avenue in Forty Fort Borough (Borough) within an R-2 residential district. Prior to Landowners purchasing the property in 1966, it was utilized as a gas and service station since at least 1942. Since 1966, the property has been used for various purposes including a gas station, flower shop and then an automotive detailing and audio installation business. None of these uses are permitted uses in an R-2 district under the Borough's Zoning Ordinance (Ordinance). While the property was occupied by the automotive detailing and audio installation shop, it suffered a major fire on May 24, 2006. Since the fire, the property has been used as a flea market, for which Landowners were paid, and for storage.
The uses permitted within an R-2 district by special exception, as outlined in §27-508.3 of the Ordinance, include professional offices; rooming and/or boarding of not more than two persons; custom dressmaking; foster family care; commercial photography; barber shops and beauty parlors; and tutoring of not more than four students simultaneously. (R.R. at 338).
On August 25, 2009, Landowners leased the property to Jairo Amigon who they claim wishes to utilize the property for "auto detailing, audio install[ation], and minor repairs" (Reproduced Record (R.R.) at 227), as a pre-existing nonconforming use. The Borough's Zoning Officer denied Landowners' application because the fire had extinguished that use. Landowners appealed to the Board.
According to the Zoning Officer, the pre-existing nonconforming use had been extinguished pursuant to §27-705 of the Ordinance, entitled "Partial Destruction of a Nonconforming Use," which states:
Any nonconforming use or structure damaged less than 50 percent of its existing floor area may be restored, reconstructed or used as before; provided, that the volume of such use or structure shall not exceed the floor area which existed up to the time of such damage; and, provided further, that such restoration shall be in accordance with the following:
A. It shall be completed within 1 year of such damage.
B. Except for the previous nonconformance, it shall be in accordance with all other requirements of this Chapter.
Before the Board, Mr. Kraynak testified that when he and his wife purchased the property in 1966, it was being used as a gas station and auto repair shop. Mr. Kraynak continued this use on the property until the early 1980s when he closed his business. At some point after this, Landowners leased the property to a florist and it was used as a floral shop for four or five years. In 2004, they leased the property to the most recent tenant, Speed-n-Style, which utilized the property mostly for the installation of car audio systems as well as minor cosmetic work and tire and wheel installation. Mr. Kraynak admitted that the property has not been used as a gas station since the 1980s, at which time the gas pumps were removed from the property, the underground tanks were filled with sand, and all of the machinery and tools associated with the gas station were removed.
Mr. Kraynak admitted that since the 2006 fire, the property has been used periodically as a flea market, for which he was paid, and for storage. The property has not had any utility service since the fire. While Mr. Kraynak received $96,000 from his insurance company to repair the fire damage, the only work which has been completed to date is patching a hole in the roof of the showroom and razing the garage bays, which were completely destroyed in the fire. Mr. Kraynak admitted that the property is located across the street from both a church and a school and that there is a school bus stop nearby.
The affidavit Landowners submitted with their application indicates that Mr. Amigon "intends to do auto repair and refinishing work including selling and installing audio equipment, tires, wheels and brakes." (R.R. at 74). Mr. Kraynak testified that he has no intention of rebuilding the garage bays; therefore, Mr. Amigon will have to park the cars and do the repair and installation work outside.
Lynn Kesselman (Mr. Kesselman), an architect retained by Landowners in September 2009, testified that he prepared a plan to renovate the structure's bathroom and repair the showroom. The plan did not include reconstruction of the garage bays destroyed by the fire. Mr. Kesselman stated that before he drew up the plan, he spoke to Mr. Amigon about his needs and Mr. Amigon told him the sole purpose of his shop would be repairing and changing tires. According to Mr. Kesselman, there would not be any tires stored on-site; instead, tires would be brought in for each customer as needed.
Mr. Amigon testified that he only planned to do tire work on the property, such as changing tires and repairing flats, and that he would not be conducting any detailing or other repair work. According to Mr. Amigon, he would park his customers' cars along the side of the building, remove the tires outside, and then repair the tires inside the structure. Mr. Amigon admitted that his customers' cars would be up on a jack outside, unattended while he worked inside. Mr. Amigon insisted that he would not store any tires outside and that he would only keep approximately 20 tires inside the building. He claims he spoke to Mr. Kesselman about storing tires inside the building.
John Kraynak, Mr. Kraynak's brother who is a real estate broker and appraiser based outside Philadelphia, testified that he viewed the property and was familiar with the neighborhood. In his opinion, it would not be economically feasible for Landowners to raze the building and construct a residence on the property. John Kraynak testified that the property is located in the middle of other commercial uses and contains buried gas tanks which would prevent residential construction.
Several neighboring residents of the Borough objected to and signed petitions against Landowners' proposed use because they believed a used tire and tire repair business would have a negative effect on property values and posed a threat to the health, safety and general environment of the neighborhood. The objectors also expressed concerns over Mr. Amigon's proposed hours of operation, the storage of tires on-site and possibly outside, and the potential danger of completing repair work outside in close proximity to a sidewalk and a school bus stop.
The Board denied Landowners' appeal and their requests for a variance and special exception, stating the credibility of Mr. Kraynak and Mr. Amigon "was brought into serious question by conflicting testimony about the use of the property." (March 3, 2010 Board Opinion at 5). The Board noted that while the Landowners' gas station may at one time have been a pre-existing nonconforming use, this use was intentionally abandoned in the 1980s when Landowners removed the gas pumps and machinery from the property and filled the underground tanks with sand. In addition, Landowners then leased the property to a woman who operated a flower shop on the property, a use inconsistent with that of a gas or service station, for four or five years. Mr. Kraynak also admitted that he did not apply to the Board for a special exception to change the use of the property from one nonconforming use to another. Given all of these factors, the Board concluded that Landowners intentionally abandoned the nonconforming use of a gas station in the 1980s and, therefore, the proposed use could not possibly qualify as a pre-existing nonconforming use.
The Board also found that Landowners' proposed use failed to meet the requirements of a special exception, as outlined in §27-508.1 of the Ordinance. Specifically, the Board found that the proposed use was not a use permitted by special exception; the proposed use would not be operated in a way that protects the public health, safety and welfare given the dangers inherent in outdoor removal and mounting of new and used tires and the danger to pedestrians and school children utilizing the nearby sidewalk and bus stop; the noise and outdoor storage of cars and tires will cause substantial injury to the value of neighboring residential properties; the proposed use is not compatible with the nearby school, church and residences; there is no provision for the required landscaping and screening; the ingress and egress to the property is very close to an intersection with a major highway; and the proposed use does not conform with the requirements of an R-2 district.
Section 27-508.1, entitled "Special Exceptions," provides:
Special exceptions, as enumerated in Part 3, shall be permitted only upon authorization by the Zoning Hearing Board pursuant to review by the Planning Commission in accordance with §27-904.4; provided, that such uses shall be found to comply with the following requirements and other applicable requirements as set forth in this Chapter.
A. The use is a permitted special exception as set forth in Part 3 hereof.
B. The use is so designed, located and proposed to be operated that the public health, safety, welfare and convenience will be protected.
C. The use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.
D. The use shall be compatible with adjoining development and the proposed character of the zone [sic] district where it is to be located.
E. Adequate landscaping and screening is provided as required in §27-407 and as otherwise provided herein.
F. Adequate off-street parking and loading is provided and ingress and egress is so designed as to cause minimum interference with traffic on abutting streets.
G. The use conforms with all applicable regulations governing the district where located, except as may otherwise be determined for large-scale development.
Finally, the Board denied Landowners' request for a variance. The Board found there was no plausible testimony regarding any unique physical circumstances or conditions peculiar to the property. The property is flat and is located on and easily accessible to public roadways. The Board also found that there is no hardship to Landowners, a variance would alter the essential character of the neighborhood, and the dangers of the proposed outdoor work mentioned above would be detrimental to the public welfare. Landowners appealed to the trial court, which affirmed, and this appeal followed.
Section 27-801(D) of the Ordinance states that the Board may grant a variance if there are unique physical circumstances or conditions peculiar to the property and the unnecessary hardship to the landowner is due to such conditions; there is no reasonable possibility that the property can be developed in strict conformity with the Ordinance and a variance is necessary to enable the reasonable use of the property; the unnecessary hardship was not created by the landowner; a variance would not alter the essential character of the neighborhood or district nor be detrimental to the public welfare; and the variance represents the minimum variance needed to afford relief.
In a land use appeal where the trial court took no additional evidence, our review is limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law. 200 W. Montgomery Ave. Ardmore, LLC v. Zoning Hearing Board of Lower Merion Twp., 985 A.2d 996, 999 n.1 (Pa. Cmwlth. 2009). The board abuses its discretion only if its findings are not supported by substantial evidence, which is defined as such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Lench v. Zoning Board of Adjustment of the City of Pittsburgh, 974 A.2d 551, 555 n.7 (Pa. Cmwlth. 2009).
Landowners contend that the Board erred in finding that the nonconforming use of the property as a gas and service station had been abandoned. Landowners stated that the Board improperly relied upon Section 27-704 of the Ordinance, which states that a nonconforming use which is destroyed by fire can be restored to its prior nonconforming use only if an application is made to the Board within 90 days of the fire and if restoration is completed within one year. According to Landowners, such provisions cannot act as statutes of limitations against nonconforming uses. Rather, they are to be treated as a rebuttable presumption that the landowner intended to abandon the use and that actual abandonment must also be proven. Landowners argue that there is no evidence in the record of actual abandonment and that Landowners' lease with Mr. Amigon and the repairs made to the structure after the fire are enough to rebut any presumption of abandonment.
Landowners are correct that such time-sensitive provisions only create a rebuttable presumption of abandonment, and that the party asserting abandonment has the burden to prove not only an intention to abandon a nonconforming use, but actual abandonment as well. However, the Board did not rely upon Section 27-704 of the Ordinance in determining that Landowners had indeed abandoned the nonconforming use. Instead, the Board found that Landowners abandoned the gas and service station use some 20 years prior to the fire when Landowners shut down their business, removed the gas pumps and all machinery associated with a gas station from the property, filled in the underground gas tanks with sand, and then leased the property to be used as a flower shop, a use completely different than the pre-existing nonconforming use. These uncontroverted facts amount to substantial evidence to support the Board's finding that Landowners intended to and actually abandoned the nonconforming use of a gas and service station at some point in the 1980s, almost 30 years prior to the present application. Landowners are not entitled to use the property as a tire installation and repair shop, a nonconforming use in the district, because there is no longer a lawful pre-existing nonconforming use.
See Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Twp., 553 Pa. 583, 592, 720 A.2d 127, 132 (1998); Robertson v. Henry Clay Twp. Zoning Hearing Bd., 911 A.2d 207, 211-12 (Pa. Cmwlth. 2006); Finn v. Zoning Hearing Bd. of Beaver Borough, 869 A.2d 1124, 1126-27 (Pa. Cmwlth. 2005).
Though it is not exactly clear why they continue to raise this issue, Landowners also contend that the Board erred in finding that the building was more than 50 percent destroyed, which precludes the reconstruction of the use under §27-704 of the Ordinance. Landowners argue that the Board erred in finding that the building for the proposed use was not separate from the part of the building destroyed by the fire and, if it was, in fact, a single structure, that more than 50 percent of the property was destroyed by the 2006 fire. The Board did not rely on this provision in finding that the use of the automotive repair business had been abandoned when Landowners closed their gas station 30 years ago. What this argument appears to be is a remnant from when Landowners were contending that the property was going to be used for "auto detailing, audio install[ation], and minor repairs," and that this proposed use was merely a continuation of the use that had existed on the property when the fire occurred. When it became apparent that the property was not going to be used for that purpose but solely as an auto repair facility, Landowners switched their argument, now stating that the auto repair use was not abandoned 30 years ago when they closed their business. In any event, there is substantial evidence to support the Board's finding that the building was a single structure and that more than 50 percent of the structure was destroyed by the fire. Moreover, the Board found that the proposed use is different than the previous use and no argument was made that the proposed use is less intensive than that use. --------
In the alternative, Landowners argue that the Board erred in denying their request for a variance. According to Landowners, they met all of the requirements for a variance as outlined in §27-801(D) of the Ordinance. Landowners point to the fact that their property is sandwiched in the middle of a small commercial zone that just happens to be officially zoned residential, as their property is located between another automotive repair shop and a beauty salon. Landowners argue that the property cannot be used for anything other than an automotive service station without imposing a substantial hardship on them and that it is not economically feasible for the property to be developed as residential. We disagree.
The findings of the Board demonstrate that Landowners failed to meet any of the requirements of a variance as stated in §27-801(5)(D) of the Ordinance. There was absolutely no testimony regarding any unique physical circumstances or conditions on the property which could create an unnecessary hardship on Landowners. The property is flat and is easily accessible to public roadways. While Landowners rely on the testimony of John Kraynak that the property cannot be developed as residential, the Board stated that this witness was not familiar with local conditions. In addition, there is no testimony at all indicating that the property cannot be used for a special exception use under §27-508(1) of the Ordinance, such as a professional office, custom dressmaking shop, commercial photography business, barber shop or beauty parlor. Uses permitted by special exception are specifically allowed by the Ordinance and, therefore, would be conducted in strict conformity with the Ordinance. Finally, Mr. Amigon admitted that he would perform some of the proposed work outside, including parking cars, putting them up on jacks and removing the tires. The fact that this would occur in close proximity to a sidewalk and a school bus stop supports the Board's finding that the proposed use is detrimental to the public welfare.
Finally, Landowners argue that the trial court erred in failing to find that the Board's Solicitor violated their due process rights by engaging in advocacy during the hearings and acting as a representative of the objectors and the Borough rather than the Board. Landowners claim that the Solicitor became argumentative with their counsel, cross-examined witnesses as though they were adversarial witnesses, and objected to questions posed by their counsel. However, in reviewing the transcripts of the hearings before the Board, we agree with the trial court that the Solicitor did not act as an advocate for the objectors - he did not vigorously cross-examine Landowners' witnesses nor did he present his own witnesses on behalf of the Board. Rather, the Solicitor simply posed questions for clarification or to complete the record and did not engage in arguments with Landowners' counsel. In fact, the Solicitor repeatedly reminded objectors and audience members not to argue with Landowners' counsel or the witnesses and he worked hard to keep these rather contentious hearings on point. We agree with the trial court that the actions of the Solicitor did not rise to the level of even an appearance of impropriety and his behavior certainly was not prejudicial to Landowners.
Accordingly, for all the foregoing reasons the order of the trial court is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 18th day of October, 2011, the order of the Court of Common Pleas of Luzerne County, dated December 30, 2010, is affirmed.
/s/_________
DAN PELLEGRINI, JUDGE
(R.R. at 345). The Zoning Officer found that the 2006 fire at the property destroyed more than 50 percent of the building's existing floor area and Landowners failed to complete the restoration of the building within one year of the damage; therefore, the pre-existing nonconforming use had been extinguished.