MEMORANDUM OPINION BY WOJCIK, Judge.
Christine Lavelle and Gary Lavelle, her husband, (collectively, Objectors) appeal the order of the Lackawanna County Court of Common Pleas (trial court) denying their land use appeal of a decision of the Borough of Dunmore (Borough) Zoning Hearing Board (Board) that granted the application of Maria Wharton (Landowner), a neighboring landowner, to construct a two-story addition to her residence on a concrete building pad and footer on her property. We affirm.
Objectors are the owners of property located at 211 Oak Street in the Borough of Dunmore, Lackawanna County. Landowner owns the property located at 209 Oak Street, which is adjacent to the Objectors' property. Both properties are located in an R-1B (Single Family Medium Density Residential) zoning district. Landowner's property had originally consisted of a home with an attached store built in 1907.
In April 2014, Landowner filed an application with the Board to construct a two-story addition to her existing home, consisting of a garage on the first floor and two bedrooms and a bathroom on the second floor. It is undisputed that this addition is a permitted use in an R-1B zoning district. Landowner sought a variance relating to the side-yard setbacks because Section 4.111(e) of the Borough's Ordinance states that in any R-District, "an appurtenant use accessory to an adjacent principal permitted use may be constructed on any vacant nonconforming lot," but "[n]o building shall be erected closer to an adjacent principal building than ten (10) feet, nor shall any side yard be less than seven (7) feet." See also Article 3, Table 2 Development Standards for Residential Zones setting a 10-foot minimum setback for one side yard in the R-1B District; a 25-foot minimum setback for both side yards; and a 35-foot maximum building height.
The Board conducted a public hearing in May 2014, during which Landowner's son, Thomas, testified as to his mother's plans for the addition. He stated that the proposed addition would only be four and a half feet from Objectors' property and only two feet, three inches from the property line. He noted that the store that had existed on the property until 1999 was a single story building and submitted a picture to the Board. He explained that the new concrete pad and footer on which he and his mother currently use to park their vehicles was constructed following the demolition of the store, and he submitted pictures of the existing pad and footer. R.R. at 1a-15a, 43a-40a. He stated that the "concrete pad was put right on the same foundation that's there." Id. at 8a.
Christine Lavelle also testified at the hearing, alleging that there would only be four feet, two inches between the two properties if the proposed addition was constructed. She expressed concerns over safety and the proximity of her home should a fire occur in the proposed addition, as well as concerns over property values with such a close neighboring structure. To address these concerns, Landowner's son proposed to use fire-rated sheetrock on the addition and agreed that he would not install any windows facing Objectors' home. At the conclusion of the hearing, the Board voted unanimously to grant Landowner the requested variance. R.R. at 15a-31a.
In June 2014, the Board issued a written decision in which it treated Landowner's application for a dimensional variance for the new, proposed permitted use of an addition to the existing home as an application to continue the prior nonconforming use on the property. Citing Sections 7.230(a),
The Board found as fact that "Article 3 Table No. 2 provides for a side yard setback of ten feet in the R-1B District and Section 4.111(e) noted a varied standard for certain nonconforming lots of a lesser degree, as well as, Section 4.310.[
Id. at 4-5.
The Board further explained that "[f]rom the pictures offered at hearing the neighborhood is comprised of structures that do not reflect the current side yard setbacks for principle structures," and that "[t]he existing homes . . . illustrate a mature neighborhood and construction that occurred prior to the adoption of the zoning ordinance." Id. at 3.
Additionally, the Board stated:
Board 6/11/14 Decision at 3.
Board 6/11/14 Decision at 5. Finally, the Board determined that Landowner presented evidence supporting the grant of a variance in Section 8.210 of the Ordinance which warranted approval of Landowner's application to construct the addition. Id. at 6. On appeal, in which Landowner intervened, the trial court affirmed the Board's decision without taking additional evidence, and Objectors filed the instant appeal.
Objectors first claim that the Board abused its discretion or erred as a matter of law in determining that Landowner met her burden of proving that the proposed addition is a preexisting nonconforming use or structure that had not been abandoned. We disagree.
In granting the instant application, the Board relied upon our Supreme Court's decisions in Yocum and Nettleton. In Yocum, a zoning ordinance was enacted after the landowners had built their house. While the house use conformed to those permitted by the ordinance, the front and side boundaries of the house were within the ordinance setbacks. The landowners sought a building permit to extend the second floor of the house over the first floor front porch. It was undisputed that the addition would not increase the encroachment into either the front or side yard setbacks. The building inspector and the board denied the permit request, but the trial court reversed and directed that it be issued.
Yocum, 141 A.2d at 605-6.
In Nettleton, the landowners owned a commercial one-story building that occupied virtually its entire lot in violation of yard and setback requirements applicable to new construction in the zoning district. However, because the building predated the zoning regulations and was lawful when constructed, it was permitted to continue as a protected nonconforming use. The zoning administrator subsequently granted the landowners a building and occupancy permit to expand the existing building vertically to three stories. Neighboring objectors appealed to the zoning board, arguing that a variance was required to permit the addition and that if approved, it would have the detrimental effect on the neighborhood and their properties of depriving them of air and sunlight. Following a hearing, the board upheld the grant of the permit and the trial court affirmed, but this Court reversed on appeal.
On further appeal, the Supreme Court quoted a zoning ordinance provision stating:
Nettleton, 828 A.2d at 1036.
In considering the application of the foregoing ordinance provision, the Court explained:
Id. at 1039.
As noted above, Section 7.200 of the Borough's Ordinance states that "[n]o existing building or premises devoted to a nonconforming use shall be . . . reconstructed[
Nevertheless, Objectors assert that Landowner's demolition of the dimensionally nonconforming store structure and its replacement with the equally dimensionally nonconforming concrete pad and footer in 1999 constitutes an abandonment of both the nonconforming store use and the nonconforming store structure under Sections 7.300 and 11.175a of the Ordinance.
Moreover, Landowner's financial inability to complete the construction of the dimensionally nonconforming structure by adding the two-story addition rebuts a presumption of her intent to abandon the dimensionally nonconforming structure. See, e.g., TKO Realty, LLC v. Zoning Hearing Board of the City of Scranton, 78 A.3d 732, 736-37 (Pa. Cmwlth. 2013) ("Where discontinuance of a use occurs because of events beyond the owner's control, such as financial inability, there is no actual abandonment.") (citation omitted); Joyce Outdoor Advertising, LLC v. Department of Transportation, 49 A.3d 518, 525 (Pa. Cmwlth. 2012) ("In rebutting a presumption of abandonment, adverse financial circumstances may explain a period of non-use.").
In sum, because Landowner promptly built the foundation for the new addition and was delayed in completing the project due to personal and financial difficulties, there is no basis to find an abandonment of the dimensionally nonconforming store structure because it was continued through the construction of the dimensionally nonconforming concrete pad and footer. Because the construction of the two-story addition will not increase the dimensional nonconformity of the existing nonconforming structure, the Board did not err in granting Landowner's application. Nettleton; Yocum.
Accordingly, the trial court's order is affirmed.
AND NOW, this
DISSENTING OPINION BY JUDGE McCULLOUGH.
The issue before us is a plain and simple request for a horizontal (not vertical) dimensional variance which should be denied for failing to meet the requisite criteria for the same. Prior to this matter, that criterion has been consistently applied in decades of precedent. Instead, the Majority, while thoughtfully written, relies on an ocean of red herrings to support its conclusion. Foremost among these are its reliance on a non-existent, non-conforming use, and non-conforming structure as the basis for the analysis, a purported claim of hardship, and two vertical expansion cases. Hence, I must respectfully dissent.
The essential facts in this case are not in dispute. Until 1999, the property of Maria Wharton (Landowner) contained two structures — a home and an attached, one-story store. The store was a non-conforming structure as it encroached at least five feet too far into the requisite side-yard setbacks between Landowner's property and a neighboring property owned by Christine and Gary Lavelle (Objectors). However, in 1999, Landowner completely removed the non-conforming structure, including the foundation, as confirmed by Landowner's son in his testimony before the Borough of Dunmore Zoning Hearing Board (Board). In response to a question from a member of the Board as to whether the existing concrete pad consisted of the foundation of the demolished store, Landowner's son responded "[n]o . . . that building was taken down.
It is clear from the foregoing passage that Landowner not only demolished the one-story non-conforming store structure, she also, by removing its foundation, removed any vestige of it. It is also clear that in so doing, Landowner had no intention of preserving the non-conforming use attendant to said structure. On the contrary, Landowner intended only to construct an attached, two-story addition to her residence which is the subject of the variance request at issue.
Consequently, the fact that at one time there had been a non-conforming structure on Landowner's property is of no moment and is irrelevant to a determination regarding the requested variance. For purposes of properly evaluating the horizontal dimensional variance being sought by Landowner, said request must be viewed as any other request to build a residential addition that encroaches into a mandatory side-yard setback. In that regard, Landowner must satisfy the traditional requirements for a variance. There is simply no basis in the law or the facts of this case to hold otherwise. The Majority opinion, however, concludes otherwise, ignoring the variance requirements and compounding the errors made by both the Board and the trial court.
First, the Majority states that "the Ordinance specifically permits Landowner to replace the prior dimensionally non-conforming store structure with the new dimensionally non-conforming two-story addition because the new use is a permitted use." (Slip op. at 12.) This is simply incorrect and is a red herring. There are no provisions in the Ordinance that permit a non-conforming structure to be eliminated, as is the case here, and an entirely new structure erected, albeit one whose use is permitted, when that structure would be in violation of the Ordinance's side-yard setback requirements absent a dimensional variance.
Moreover, the proposed two-story addition is not "non-conforming" as the Majority states. A non-conforming structure is one which lawfully existed prior to the enactment of a zoning ordinance to which it would not comply. See Section 11.174 of the Ordinance;
The Majority cites Sections 7.200 and 7.230(b) to support the assertion that the Ordinance "specifically permits" the addition, as well as the fact that the uses thereof are permitted. While the use may be permitted, Section 7.200 refers only to "an existing building . . . devoted to a nonconforming use." Here, there is no existing building; it was completely removed and the Ordinance provides no basis to thereafter construct a new structure in violation of the Ordinance's side-yard setback requirements.
The Majority correctly notes that "reconstruction" is not defined in the Ordinance. However, its attempt to bootstrap the definition of "structural change" in Section 11.202 is without merit. That definition presupposes the existence of a building and speaks to changes in the structural members thereof. Here, the building is gone. Indeed, the only reference in the Ordinance to permitting the reconstruction of a non-conforming use after removal is where the use has been "destroyed" by more than 50% of its floor area. See Section 7.240(c) of the Ordinance.
The Majority then asserts that while Landowner abandoned the non-conforming use, she did not abandon the non-conforming structure because she constructed an "equally dimensionally nonconforming concrete pad and footer" and thereby continued the structural nonconformity of the store structure and "did not abandon such for the requisite five-year time period provided in Section 7.300 of the Ordinance." (Slip op. at 13-14.) This reasoning is fundamentally at odds with itself. While the Majority notes the distinction between a non-conforming use and a non-conforming structure, it relies upon Section 7.300 of the Ordinance for its conclusion that the Landowner did not abandon the "structural nonconformity of the store structure" for the requisite five year time period. (Slip op. at 13.) Section 7.300 of the Ordinance, however, is titled "Termination of Nonconforming Uses," and the provisions thereof are expressly limited to the abandonment of a non-conforming use. It is therefore simply wrong to glom a non-conforming structure onto the provisions of Section 7.300 of the Ordinance and Landowner cannot avail herself thereof.
It is difficult to imagine a clearer example of the abandonment of a non-conforming structure than what occurred in this case. Landowner demolished the non-conforming structure and removed it, at all times intending to build a very different structure. Thus, nothing was carried over from the previous structure. Moreover, aside from intending to construct an entirely different structure, Landowner offered no other reasons for removing the non-conforming structure — most notably, Landowner did not claim that the non-conforming store structure was "damaged," which would have permitted Landowner to restore and reconstruct it pursuant to 7.210 of the Ordinance, or that said structure was sufficiently destroyed so as to compel its removal and permit reconstruction pursuant to Section 7.240(c) of the Ordinance. Sections 7.210 and 7.240 are the only bases prescribed by the Ordinance and neither is applicable in this instance.
Accordingly, there is nothing in the Ordinance to permit the removal of a non-conforming structure and construction of a subsequent structure with the same footprint on the basis of Landowner's preference, not occasioned by damage to, or destruction of, the non-conforming structure, when said footprint is beyond the bounds of the requisite side-yard setback requirements. The Majority also is bereft of any decisional authority to support this notion. Hence, the Majority's reliance on the former non-conforming structure to justify the new addition to the home on Landowner's property is misplaced. If Landowner is to be able to proceed with the addition, it must be by way of a variance. However, an examination of the record shows that Landowner has not met the requisites for such a variance.
Section 8.210(a) of the Ordinance sets forth the following necessary criteria for the grant of a variance:
(R.R. at 81a-82a) (emphasis added).
In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), our Supreme Court set forth a relaxed standard for establishing unnecessary hardship where an applicant seeks a dimensional variance. The court explained that an applicant seeking a dimensional variance:
Id. at 47. Hence, the court held that "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. at 48. Further, the court held that:
Id. at 50.
Nevertheless, this Court has stated that while Hertzberg eased the requirements for a dimensional variance, "it did not remove them," and that an applicant "must still present evidence as to each of the conditions listed in the zoning ordinance, including unnecessary hardship." Tri-County Landfill v. Pine Township Zoning Hearing Board, 83 A.3d 488, 520 (Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014). Indeed, we have consistently held that, even under this relaxed standard, an applicant is not entitled to a dimensional variance where no hardship is shown or where the hardship alleged amounts to an applicant's mere desire to increase profitability. See, e.g., McCarry v. Haverford Township Zoning Hearing Board, 113 A.3d 381 (Pa. Cmwlth. 2015); Society Hill Civic Association v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012); Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144 (Pa. Cmwlth. 2011).
Landowner only sought a variance relating to the side-yard setback requirement. Landowner's son was the only witness to testify in support of his mother's request for a variance. His testimony neither addresses nor supports the need for encroachment into the setback by five feet. He testified that his mother wanted to "put in a two story addition onto the existing house there with the garage on the first floor and second floor to be two bedrooms," but that "the pad is 22 × 25. . . we need the variance for the space in between because right now there is only 4 foot 6 from foundation to foundation." (R.R. at 6a-7a.)
While his testimony referenced some variations in distances between the front and rear of the concrete pad and the property line shared with Objectors and a slope in the rear of the property, this testimony was confusing and did not describe the lot size or shape or any other unique physical circumstances or conditions relative to the property, let alone any purported unnecessary hardship resulting therefrom.
Instead, he merely stated that "[o]n the concrete pad there on the one end the back corner of it, my mother's property there goes 3 foot from the property line over. It's actually 3 foot 4 inches. And it goes up further it's 2 foot 3 inches." (R.R. at 7a.) Upon questioning by members of the Board, he noted that the property "slopes down" in the back and that the property line was "not like a straight line." (R.R. at 10a, 12a.) He described the pad as being "2 foot 3 off the front of [the property line] and 3 foot 4 off the back. But again, there's 4 foot 6 in between." (R.R. at 12a.) Later, he stated that "[t]he very back of where that pad is, it's only like 14 inches off the property line. And in the front they have about 2 foot 3." (R.R. at 13a.)
All of his testimony, except for noting that the property "slopes down" in the back, relates to the current measurement of encroachment by the existing concrete pad. However, the pad itself and the desire to build upon the entire pad is separate from the need to build or any purported hardship experienced by not building an addition onto a home which will encroach into the required setback by nearly five feet.
Additionally, he offered no testimony regarding the inability to develop the property in strict conformity with the Ordinance, the need for a variance to enable the reasonable use of the property, or the lack of any impairment to the use or development of adjacent property. In this regard, I note that while Landowner sought to construct the addition with a two-car garage on the footprint of the existing concrete pad, she offered no testimony why a smaller, dimensionally-conforming addition could not be built. Indeed, Landowner's application to the Board, as well as her son's testimony, described the concrete pad as being twenty-two feet wide.
In sum, Landowner sought a dimensional variance from the Board relating to the side-yard setback requirement of the Borough's Ordinance, but failed to present sufficient evidence establishing the necessary criteria for a variance under Section 8.210(a) of the Ordinance, including unnecessary hardship, which standard is relaxed but still required for a dimensional variance. The Board erred in granting Landowner a variance.
The Board also erred in alternatively concluding that Landowner was entitled to construct the addition as a vertical expansion of a non-conforming use. The prior, non-conforming use was the store, which was demolished in 1999. This demolition, coupled with Landowner's desire to construct an addition that constituted a new, conforming use, constituted an abandonment of the prior, non-conforming use. Hence, such use could not be continued or expanded under the Ordinance.
Accordingly, I would reverse the trial court's order.
In contrast, Section 11.175 of the Ordinance defines "nonconforming use," in material part, as "[a] use, whether of land or structure, which does not comply with the applicable use provisions . . . or any amendment . . . where such use was lawfully in existence prior to the enactment of such ordinance or amendment. . . ." Section 107 of the MPC also defines "nonconforming use" as "a use, whether of land or of structure, which does not comply with the applicable use provisions in a zoning ordinance . . . where such use was lawfully in existence prior to the enactment of such ordinance. . . ."
Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732, 735 n.3 (Pa. Cmwlth. 2000) (citations omitted). "Assuming the record demonstrates the existence of substantial evidence, the Court is bound by the Board's findings which are the result of resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence." Vanguard Cellular System, Inc. v. Zoning Hearing Board of Smithfield Township, 568 A.2d 703, 707 (Pa. Cmwlth. 1989), appeal denied, 590 A.2d 760 (Pa. 1990). "The Board, as fact finder, has the power to reject even uncontradicted testimony if the Board finds the testimony to be lacking in credibility." Id.
Kissell v. Ferguson Township Zoning Hearing Board, 729 A.2d 194, 197 (Pa. Cmwlth. 1999) (citations omitted). Webster's Third New International Dictionary, in relevant part, defines "reconstruct" as "to construct again" and "to build again: REBUILD," and "substitute" as "to put in the place of another: EXCHANGE." Webster's Third New International Dictionary 1897, 2280 (1986). Compare Section 11.202 of the Ordinance (defining "structural change" as "[a]ny change in the structural members of a building, such as walls, beams, columns or girders."). Thus, as stated infra, Sections 7.200 and 7.230(b) expressly permit the complete reconstruction or substitution of the prior horizontally nonconforming structure with the new equally horizontally nonconforming structure for the proposed permitted use.
Metzger v. Bensalem Township Zoning Hearing Board, 645 A.2d 369, 370 (Pa. Cmwlth. 1994) (citations omitted).