Opinion
No. 1227 C.D. 2011
06-14-2012
Christopher M. Lang, Executor of the Estate of Richard E. Lang v. Robinson Township Zoning Hearing Board, Lamar Advertising Company, and Robinson Township Appeal of: Lamar Advertising Company
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Lamar Advertising Company (Lamar) appeals from the June 10, 2011, order of the Court of Common Pleas of Allegheny County (trial court) sustaining the appeal of Christopher M. Lang (Lang), executor of the estate of Richard E. Lang, vacating the variances granted by the Robinson Township Zoning Hearing Board (ZHB), and reversing the grant of a conditional use by the Robinson Township Board of Commissioners (Commissioners). We affirm.
The following facts are not in dispute. Lamar sought to erect an LED billboard at 5320 Steubenville Pike, Robinson Township, Pennsylvania, immediately adjacent to property owned by the Estate of Richard E. Lang. The subject property is owned by David and Lena Winning, who have entered into an agreement of sale and purchase with Lamar contingent upon the zoning approvals. The subject property is in the Township's C-2 zoning district, where billboards are permitted as a conditional use. The Township's zoning ordinance (Ordinance) contains numerous billboard regulations regarding location, size, height, construction methods, maintenance, and permits.
On March 7, 2007, Lamar filed a conditional use application with the Commissioners to construct a free-standing LED billboard with an active sign face of 227.4 square feet. Following two hearings, the Commissioners granted the application, subject to several conditions, including satisfaction of the conditions and requirements in a prior letter from the Township's engineer, compliance with the requirements of the Ordinance, documentation of liability insurance, and the approval of the Department of Transportation (DOT). Lang appealed the Commissioners' decision to the trial court, alleging that the proposed billboard violated numerous provisions of the Ordinance, including provisions concerning setbacks, proximity to the property line of a church, sign size and height limitations, display lighting, and requirements to obtain agency approvals. Lang also asserted that the proposed billboard did not satisfy the Ordinance criteria for a conditional use. By order dated November 27, 2007, the trial court remanded the matter to the Commissioners to address these purported deficiencies in Lamar's proposed plan.
On June 9, 2008, following a third hearing, the Commissioners issued a revised decision again approving Lamar's conditional use application, subject to numerous conditions requiring compliance with, or obtaining variances from, several Ordinance provisions. Lang again appealed the Commissioners' decision to the trial court. On September 10, 2008, the trial court determined that it would withhold its decision on the conditional use application in order to give Lamar an opportunity to apply to the ZHB for variances. On or about February 24, 2009, Lamar applied to the ZHB for four variances and six Ordinance interpretations necessary to permit installation of the billboard. The matter was first heard before the ZHB at a public hearing on March 25, 2009. This hearing included testimony from James Vlasach, Lamar's real estate manager, Richard Glance, a professional architect, and David Winning.
The variance requests related to the location of the billboard within 500 feet of the property line of a church; a front yard setback less than the required 50 feet; a gross surface area in excess of the maximum allowable 150 square feet; and the continuous daily operation of the billboard, including during the prohibited hours from midnight to 5:00 a.m. The Ordinance interpretations requested the following findings: the proposed billboard is a new use not covered by the Ordinance; the billboard is a continuation of a nonconforming use in connection with an existing, nonconforming foundation; the billboard is not display lighting; the billboard's sign face panels may encroach into the front yard area so long as they do not extend over a sidewalk or public right-of-way; only the billboard's support pole needs to be within the buildable area of the subject property; and the location restriction related to churches only applies to properties that front along the road to which the billboard shows.
On April 23, 2009, following a public meeting, the ZHB approved Lamar's variance requests with respect to the gross surface area of the billboard and hours of operation. In its written decision issued May 27, 2009, the ZHB concluded that the additional variances requested by Lamar were unnecessary, noting that the Ordinance had not kept pace with technology. With respect to the Ordinance interpretations, the ZHB agreed with Lamar regarding buildable area, encroachment into the front yard area, and church spacing requirements, but disagreed with Lamar as to the remaining interpretations. Lang appealed the ZHB's decision to the trial court, challenging the variances and Ordinance interpretations. The trial court consolidated the conditional use appeal and the ZHB appeal into a single proceeding.
On December 8, 2009, the trial court entered an order granting Lang's appeal from the ZHB decision and vacating the variances. However, the parties jointly moved for reconsideration, which was granted, and the trial court vacated its December 8, 2009, order. On March 16, 2010, the trial court issued an opinion and order reversing the Commissioners' decision granting the conditional use. The trial court concluded that Lamar did not meet as many as 14 Ordinance criteria regarding property lines, setbacks, the size of the billboard, and lighting, which are necessary for the grant of a conditional use. Lamar thereafter appealed to this Court. In an unreported opinion and order dated December 23, 2010, this Court concluded that the trial court's March 16, 2010, opinion and order failed to resolve the variance and ordinance interpretation issues raised in the consolidated appeals. Accordingly, we vacated the trial court's order and remanded the matter for further proceedings.
Lang v. Robinson Township Zoning Hearing Board, Pa. Cmwlth., No. 640 C.D. 2010, filed December 23, 2010.
On June 10, 2011, the trial court issued a new opinion and order sustaining Lang's appeal. With respect to variances, the trial court concluded that Lamar failed to present any economic, engineering, architectural, or other evidence demonstrating that the subject property could not be developed without the requested variances. The trial court noted that Lamar sought the variances simply to increase revenue by maximizing the exposure of the billboard and that the desire for more profits is not an economic hardship satisfying the requirements for a variance. Citing Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment, 771 A.2d 874 (Pa. Cmwlth.), appeal denied, 567 Pa. 733, 786 A.2d 992 (2001), the trial court also noted that, even under the relaxed standards for a dimensional variance, an applicant must still establish unnecessary hardship.
Further, the trial court held that the grant of a variance permitting operation of the billboard 24 hours a day constituted an abuse of discretion. The trial court explained that the ZHB's finding that the Ordinance had not kept pace with technology was not enough to warrant the grant of a variance. With respect to the conditional use, the trial court reiterated that Lamar failed to meet as many as 14 Ordinance requirements, including requirements relating to property lines, setbacks, size of the billboard, and lighting. Accordingly, the trial court vacated the ZHB's decision to grant the variances and reversed the Commissioners' decision granting a conditional use.
On appeal to this Court, Lamar first argues that the trial court erred in reversing the Commissioners' grant of its conditional use application. We disagree.
Where, as here, the trial court takes no additional evidence, our scope of review of a land use appeal is limited to determining whether the local governing body committed an error of law or whether the necessary findings of fact were supported by substantial evidence. Union Township v. Ethan Michael, Inc., 979 A.2d 431 (Pa. Cmwlth. 2009), appeal denied, 606 Pa. 658, 993 A.2d 902 (2010). Moreover, the local governing body is the ultimate fact-finder and the exclusive arbiter of credibility and evidentiary weight. Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011).
It is well settled that municipalities of the Commonwealth possess only those powers expressly granted to them by the General Assembly. In re Appeal of Maibach, LLC, 26 A.3d 1213 (Pa. Cmwlth. 2011). Section 909.1(b)(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10909.1, grants a municipality's governing body authority to render final adjudications on applications for conditional uses. A conditional use is one to which the applicant is entitled provided that the specific standards of the zoning ordinance are met. In re Thompson, 896 A.2d 659 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 669, 916 A.2d 636 (2007). An applicant seeking a conditional use must show compliance with the express standards of the zoning ordinance that relate to the specific conditional use. Id. If the applicant demonstrates compliance with the zoning ordinance, the governing body must grant the application unless objectors introduce sufficient evidence that the proposed use will have a detrimental effect on the public health, safety, and welfare. Id.
A governing body may, however, impose reasonable conditions on the grant of a conditional use. Section 913.2 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10913.2; Levin v. Board of Supervisors of Benner Township, Centre County, 669 A.2d 1063 (Pa. Cmwlth. 1995), affirmed, 547 Pa. 161, 689 A.2d 224 (1997). A board is permitted to impose reasonable conditions on the use of a property to mitigate any potential adverse impacts from the proposed use. Edgmont Township v. Springton Lake Montessori School, 622 A.2d 418 (Pa. Cmwlth. 1993). Reasonable conditions are those that advance a valid zoning interest, are supported by the record, and relate to the specific zoning ordinance at issue. HHI Trucking & Supply, Inc. v. Borough Council of Borough of Oakmont, 990 A.2d 152 (Pa. Cmwlth. 2010).
In the present case, the record reveals two letters from the Township's own engineer, dated March 29, 2007, and May 7, 2007, respectively, which identified the numerous deficiencies in Lamar's conditional use application. See R.R. at 285a-87a, 393a-95a. In the first letter, the Township engineer identified 16 deficiencies, including, inter alia, encroachment within the 50-foot front yard setback, exceeding the maximum surface area of 150 square feet, exceeding size limitations of 10 feet in height and 15 feet in length, the lack of a lighting and illumination plan to verify that the illumination levels do not exceed 1.5-footcandles upon the adjoining property, the lack of established hours of operation, and the lack of DOT approval. In the second letter, the Township engineer identified many of the same deficiencies relating to setback, surface area, and height and length, plus plans for operation 24 hours per day when the Ordinance precludes operation between midnight and 5:00 a.m. The Commissioners' decision itself noted these same deficiencies.
Although the Commissioners conditioned the grant of Lamar's conditional use application upon satisfaction of the deficiencies and overall compliance with the Township's Ordinance, this Court has previously rejected such an approach. See Edgmont Township. In Edgmont Township, we addressed the failure of an applicant for a special exception to meet at least 4 specific requirements of the local zoning ordinance. In that case, we held that neither a promise of future compliance by an applicant nor the attachment of a condition by the zoning hearing board was sufficient to meet these requirements. Specifically, we stated as follows:
While a zoning hearing board exercises the authority to grant or deny a special exception, we have previously held that a conditional use is equivalent to a special exception and the standards and burden of proof applicable to a special exception also apply to a conditional use. Joseph v. North Whitehall Township Board of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011).
To be entitled to receive a special exception it was incumbent on the School to come forward with evidence detailing how it was going to be in compliance with the
requirements necessary to obtain a special exception to operate a preschool in a R-1 zoning district. Evidence is not a "promise" that the applicant will comply because that is a legal conclusion the Board makes once it hears what the applicant intends to do and then determines whether it matches the requirements set forth in the ordinance. In Appeal of Baird, 113 Pa.Commonwealth Ct. 637, 641, 537 A.2d 976, 978 (1988), a zoning hearing board denied an applicant a special exception to operate a dog kennel on 11.86 acres of land because the applicant failed to show compliance with ordinance requirements applicable to buildings in the zone in question. Overturning the Board, the trial court held that because the lot was in excess of 11 acres, it was self-evident that the parcel was large enough to provide for any building configuration necessary to meet the zoning ordinance requirements. Reversing, we held that the Board properly denied the special exception because an applicant is required to show at the time of the hearing that it met the requirements of the ordinance.Edgmont Township, 622 A.2d at 419-20. Because the record is clear that Lamar did not meet the specific standards of the Ordinance at the time of its application and conditional compliance is not sufficient to meet an applicant's burden for a conditional use, the trial court did not err in reversing the Commissioners' grant of Lamar's conditional use application.
The failure of the promise to establish sufficient evidence of compliance is not cured by a condition contained in the Board's decision that the School meet the requirements of the ordinance prior to occupying the property. In Lafayette College v. Zoning Hearing Board of the City of Easton, 138 Pa.Commonwealth Ct. 579, 587, 588 A.2d 1323, [1327] (1991), we overturned the grant of a special exception where the plan submitted to the Board did not comply with the on-site parking requirement necessary to obtain a special exception even though the grant of the special exception was conditioned on the applicant obtaining off-site parking. Rejecting that the off-site parking condition cured its failure to meet the specific requirement of on-site parking, we held that the proper function of a condition imposed upon a special exception is to reduce the adverse impact of that permitted use, and not to enable the applicant to meet its burden of showing that it met the requirements necessary to obtain a special exception. Id. at 586, 588 A.2d at 1326. The standard to be observed by the Board is whether the plan as submitted complies with specific ordinance requirements at the time the plan comes before it.
Next, Lamar argues that the trial court erred in vacating the ZHB's grant of several variances. Again, we disagree.
The burden is on the property owner to establish why he or she is entitled to a variance. Swemley v. Zoning Hearing Board, 698 A.2d 160 (Pa. Cmwlth. 1997), appeal denied, 555 Pa. 693, 722 A.2d 1059 (1998). A variance may be granted where the following criteria are met:
(1) an unnecessary hardship will result if the variance is denied, due to the unique physical circumstances or conditions of the property; (2) because of such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship is not self-inflicted; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 811-12 (Pa. Cmwlth.), appeal denied, 585 Pa. 692, 887 A.2d 1243 (2005) (citations omitted). Unnecessary hardship can be established where the physical features of the property are such that the property cannot be used for a permitted use or could only conform to such use at a prohibitive cost. Southdown, Inc. v. Jackson Township Zoning Hearing Board, 809 A.2d 1059 (Pa. Cmwlth. 2002). Unnecessary hardship may also be established by evidence that the property has no value for any use permitted by a zoning ordinance. Id.
However, these standards are relaxed when an applicant is only seeking a dimensional variance. Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998). In Hertzberg, our Supreme Court stated:
When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.554 Pa. at 257, 721 A.2d at 47. Therefore, "the quantum of proof required to establish unnecessary hardship is indeed lesser when a dimensional variance, as opposed to a use variance, is sought." Id., 554 Pa. at 258-59, 721 A.2d at 48. Nevertheless, a dimensional variance is not appropriate unless it would result in only a mere technical and superficial deviation from the ordinance's requirements. One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa. Cmwlth. 2005).
Moreover, this Court has "consistently held that an applicant is not entitled to a dimensional variance under the relaxed standard set forth in Hertzberg where no hardship is shown or where the hardship alleged amounts to an applicant's mere desire to increase profitability." Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011); see also Township of Northampton v. Zoning Hearing Board of Northampton Township, 969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting an applicant's request for a variance from off-street parking requirements where no evidence of hardship was presented and evidence revealed that the applicant could use the property in a manner consistent with ordinance requirements); In re Boyer, 960 A.2d 179 (Pa. Cmwlth. 2008) (rejecting the applicant's requests for dimensional variances from the ordinance's steep slope and setback requirements in order to construct in-ground pool where no evidence of hardship was presented); Chester County Refuse Auth. v. Zoning Hearing Bd. of London Grove Twp., 898 A.2d 680 (Pa. Cmwlth. 2006) (rejecting a request for a dimensional variance where evidence indicated that the applicant could continue to operate at a profit without variance relief; no hardship was shown); One Meridian Partners (rejecting a request for a dimensional variance from floor area ratio and height requirements where the asserted hardship was essentially financial in nature).
In this case, Lamar failed to present sufficient evidence before the ZHB warranting the grant of the requested variances. To the contrary, the testimony presented on behalf of Lamar supports the trial court's decision. For example, David Winning, the owner of the subject property, testified that the commercial and residential buildings on the property had been in use at all times prior to the execution of the agreement of sale and purchase with Lamar. (R.R. at 522a-33a.) In fact, Mr. Winning indicated that his daughter had lived in the residential building and that various tenants had occupied the commercial building. Id. Mr. Winning also acknowledged that he did little to maintain the commercial building over the last 20 years and that it has consequently fallen into a state of deterioration. Id. This testimony from Mr. Winning precludes any findings that the property could not be developed in strict conformity with the Ordinance, that a variance was necessary to enable the reasonable use of the property, or that the property was valueless without the requested variances.
While Mr. Winning alleged that the widening of the Steubenville Pike, which borders the property, negatively affected the commercial building on the property by reducing the parking area and creating access problems, he acknowledged on cross-examination that the property had additional access from another bordering road, McKees Rocks Road. (R.R. at 528a.)
Additionally, Vlasach, Lamar's real estate manager, essentially testified the variances were necessary to maximize the exposure of the proposed billboard and the revenue generated by the billboard. (R.R. at 419a-33a, 449a-52a.) However, as noted above, an applicant's mere desire to increase profitability does not establish a hardship. Singer. Moreover, while Glance, the professional architect, testified regarding the construction of the proposed billboard and the modifications/partial removal of the existing structures on the property, he offered no testimony concerning any unique physical circumstances or conditions of the property that impose an unnecessary hardship. (R.R. at 473a-517a.) Because the record lacked sufficient evidence satisfying the requirements for the grant of the requested variances, the trial court did not err in vacating the ZHB's order.
Accordingly, the order of the trial court is affirmed.
Lamar attached two documents to its brief, an aerial map and a church spacing measurement, which were not part of the record before the trial court. The law is well settled that an appellate court may consider only the facts which have been duly certified in the record on appeal. HYK Construction Company, Inc. v. Smithfield Township, 8 A.3d 1009 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, 21 A.3d 1195 (2011). Hence, we did not consider these documents or any arguments based thereon in reaching this decision. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 14th day of June, 2012, the order of the Court of Common Pleas of Allegheny County, dated June 10, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge