IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Eidson and :

J.C. Bar Properties, Inc., :

Appellants :

:

v. : No. 714 C.D. 2017

: Argued: February 6, 2018

Ross Township Zoning :

Hearing Board and :

Township of Ross :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: March 12, 2018 

Pamela Eidson (Eidson) and J.C. Bar Properties, Inc. (Developer) 

(collectively, Appellants) appeal from an order of the Court of Common Pleas of 

Allegheny County (Common Pleas), dated May 4, 2017. Common Pleas affirmed 

the decision of the Ross Township Zoning Hearing Board (ZHB), which denied 

Appellants’ application for use and dimensional variances (Application). For the 

reasons discussed below, we affirm Common Pleas’ order. 

I. BACKGROUND

Eidson is the owner of real property (Property) located at 628 Perry 

Highway in Ross Township (Township), Allegheny County. The Property is located 

at the intersection of Perry Highway and Rochester Road in an R-1 Zoning District,
2

as defined by Sections 27-902, 27-905, and 27-906 of the Township’s Code of 

Ordinances (Ordinance). In the late 1970s, Nancy DiCola, M.D. (DiCola), Eidson’s 

aunt and the prior owner of the Property, received conditional use approval to 

construct a 3,000 square foot addition on an existing residence located on the 

Property for use as a medical office (Medical Office Building). DiCola used the 

Medical Office Building for both her residence and her medical practice through 

December 31, 1990, and for her residence until she died in October 2000. From 

October 2000 through 2007, the Property was vacant and under the control of a 

court-appointed conservator. In November 2006, DiCola’s estate deeded the 

Property to Eidson. Thereafter, on May 17, 2016, Appellants filed their Application, 

seeking, inter alia: (1) a use variance to permit the construction and operation of a 

retail CVS pharmacy on the Property, a use that is not permitted in an R-1 Zoning 

District; and (2) a dimensional variance to reduce the number of required parking 

spaces from 75 to 50.

1

 The ZHB conducted a public hearing on Appellants’ 

Application on August 10, 2016.

At the hearing, Appellants presented the testimony of Jason Mitchell 

(Mitchell), an employee of Developer. (Reproduced Record (R.R.) at 9a.) Mitchell 

testified that Developer is CVS’s preferred real estate development company in 

Western Pennsylvania, Central Pennsylvania, and Maryland. (Id. at 9a-10a.) 

Mitchell explained that after Developer identified the Property as a potential CVS 

location and took the Property through the CVS approval process, Developer met

with the Township to discuss the Property’s history. (Id. at 11a-12a.) At that time, 

 

1

In their Application, Appellants also sought dimensional variances to increase the 

maximum widths of the Property’s entrance and exit driveways. Such dimensional variance 

requests are not the subject of this appeal, and, therefore, we will not address them in any further 

detail. 
3

Developer learned of a prior attempt to rezone the Property for commercial use. (Id.) 

Through its own research and conversations with the Township, Developer became 

aware of certain concerns that had been raised during that prior rezoning attempt. 

(Id. at 12a-13a.) Mitchell stated that Developer sought to address those concerns in 

its initial design of the CVS and with its presentation to the ZHB. (Id. at 12a-13a.)

Mitchell testified further that the proposed CVS is a 13,225 square foot 

building, with a prototypical CVS layout and a single drive-through. (Id. at 14a.) It

will be accessible from both Perry Highway and Rochester Road, however, the Perry 

Highway access will be limited to right turns in and right turns out only. (Id.) 

Mitchell explained that Developer has proposed only 50 parking spaces for the CVS 

because: (1) that is all that is needed; and (2) by reducing the number of parking 

spaces, Developer is able to add more green space and buffer areas. (Id. at 14a-15a.) 

Mitchell explained further that a typical CVS is open from 8:00 a.m. until 10:00 p.m. 

and has four to six employees per shift. (Id. at 16a.) Mitchell stated that the parking 

lot will contain LED down-facing lights that will be turned off when the CVS is 

closed and deliveries to the proposed CVS will be one time per week. 

(Id. at 16a-19a.) 

Mitchell also testified that the Property currently contains 3 structures: 

(1) the main original house that was built in the early 1900s and is currently vacant 

and boarded up (Original Building); (2) a 2-car garage (Garage); and (3) the Medical 

Office Building. (Id. at 20a-21a.) Mitchell explained that Developer’s director of 

construction inspected the condition of the Medical Office Building to determine 

whether it could be rehabilitated for future residential use. (Id. at 21a.) The

inspection revealed that from a mechanical perspective the Medical Office Building 

is functionally obsolete. (Id. at 22a.) Mitchell testified further that the HVAC 
4

system and hot water heater are in such a state that they would need to be replaced, 

the electric system was not working in more than 50 percent of the structure, there 

had been temporary plumbing installed on the outside of the walls, and the plumbing 

had been turned off to parts of the structure. (Id. at 22a-23a.) The inspection also 

revealed that from a cosmetic perspective the Medical Office Building would need 

a complete interior renovation down to the studs. (Id. at 23a.) Mitchell stated that 

Developer had estimated that it would cost approximately $171,000 to perform the 

mechanical and cosmetic repairs. (Id. at 24a.) Mitchell stressed, however, that this 

estimate did not include any potential structural damage to the Medical Office 

Building. (Id.) The inspection further revealed a potential moisture issue in the 

Medical Office Building. (Id.) As a result, Developer obtained an environmental 

study, which uncovered the presence of excess moisture and black mold in the 

Medical Office Building. (Id. at 24a-26a.) Mitchell explained that in its existing 

poor condition, the Property appraised at $135,000. (Id. at 26a-27a.) Mitchell 

testified, however, that he did not believe that the Property could be used without 

demolishing the existing structures. (Id. at 27a.)

Appellants also presented the testimony of Andrew Schwartz 

(Schwartz), the managing principal and lead landscape architect/community planner 

for Environmental Planning and Design. (Id. at 32a-33a.) Appellants’ attorneys 

hired Schwartz to render an expert opinion regarding the appropriateness of the 

requested use and dimensional variances for the construction of a CVS on the 

Property. (Id. at 35a, 397a.) Schwartz testified that the assessor’s office labeled the 

Original Building as unsound, which basically means that it needs to be demolished. 

(Id. at 37a.) Schwartz explained that in addition to the structures, the Property also 
5

contains a 20-25 car parking lot, a commercial grade driveway, and commercial 

grade lighting. (Id. at 37a-38a.) 

Schwartz explained that the development character of Perry Highway 

and Rochester Road has changed significantly over the years from large residential 

and agricultural uses to commercial uses due to the increase in vehicular traffic. 

(Id. at 41a-44a, 47a-48a.) Schwartz indicated that in its 1995 Strategic Plan, the 

Township even referred to Perry Highway as a “primary commerce corridor.” 

(Id. at 44a, 47a-48a.) Schwartz explained that around that time people were 

beginning to recognize this area as mixed-use and not just residential neighborhoods. 

(Id. at 48a-49a.) Schwartz also indicated that the Township passed multiple zoning 

amendments from 1930 through the present, which included approximately 

114 changes of use from residential to commercial. (Id. at 45a.) Schwartz described 

these zoning amendments as a piecemeal, reactive approach, where the Township 

changed the zoning for a particular parcel or parcels based on a proposal without any 

analysis to support the amendment. (Id. at 45a-47a.) Schwartz also explained that 

the Township’s 2015 Comprehensive Plan further reinforced that the zoning in this 

area “should be oriented more towards mixed[-]use types of districts that have more 

flexibility.” (Id. at 52a.)

Schwartz also testified that he identified four hardships affecting the 

Property that are sufficient to justify the grant of a use and dimensional variances. 

(Id. at 53a, 68a, 74a.) Schwartz stated that the first hardship is the “patchwork” of 

non-residential, commercial, and industrial uses surrounding the Property. 

(Id. at 53a.) Schwartz stated further that the Property, which is zoned single-family 

residential, is “kind of like frozen in time[, where e]verything around it has slowly 

changed over time.” (Id. at 53a-54a.) Schwartz also stated that within 3⁄4 of a mile 
6

of the Property, there are approximately 96 non-residential, commercial, and 

industrial uses, including “anything from auto repair, auto body, to dentist office, 

attorney’s offices, restaurants[,]” and a school campus. (Id. at 39a-40a, 53a-56a.) 

Schwartz admitted, however, that he did not identify which of those uses were 

located in the Township and which of those uses were located within West View, a 

neighboring municipality. (Id. at 40a.) 

Schwartz testified that the second hardship is the intersection of Perry 

Highway and Rochester Road. (Id. at 57a.) Schwartz explained that the current 

traffic volume at the intersection of Perry Highway and Rochester Road is a little 

less than 22,000 vehicles, with approximately 14,300 vehicles on Perry Highway 

and approximately 7,500 vehicles on Rochester Road. (Id. at 39a.) Schwartz 

explained further that “22,000 cars at an intersection in a single-family residential 

area is an extreme number.” (Id. at 58a-59a.) When asked whether these types of 

traffic counts are typical in an R-1 Zoning District, Schwartz stated: “If we were 

kind of reworking the zoning map and the fixed point was an intersection of 

22,000 cars, low-density residential would not be at that corner. That’s not a 

contemporary zoning practice. It doesn’t follow the general rules of real estate.” 

(Id. at 66a.)

Schwartz stated that the third hardship is the Property’s nonconforming 

use as a medical office. (Id. at 67a.) Schwartz explained that the Medical Office 

Building was “a purpose-built commercial building” and converting it back to 

residential use will be a hardship. (Id. at 68a.) 

Schwartz identified the fourth hardship as the Property’s size. 

(Id. at 67a.) Schwartz explained that Eidson has attempted to sell the Property for 

residential purposes for years, but has been unsuccessful. (Id. at 64a.) Schwartz 
7

opined that the Property is tough to sell because the Property is larger than what 

people are looking at in today’s market for a single-family lot and is located on an 

intersection with 22,000 vehicles, and the Property is too small to subdivide into 

more than 3 single-family homes. (Id. at 64a-66a.) Schwartz also explained that the 

Property is unique due to its size and the fact that it has 2 access driveways. (Id. at 

67a.)

Appellants also presented the testimony of Charles Wooster (Wooster), 

a traffic engineer and the owner of David E. Wooster & Associates, Inc. 

(Id. at 75a-76a.) Wooster performed a traffic assessment in connection with 

Appellants’ Application. (Id. at 76a.) The traffic assessment evaluated both the 

intersection of Perry Highway and Rochester Road and the access driveways to the 

proposed CVS (full access on Rochester Road and right turn in/out on Perry 

Highway). (Id. at 78a.) Wooster testified that the average daily traffic at the subject 

intersection is a little over 14,000 vehicles per day on Perry Highway and 

approximately 7,500 vehicles per day on Rochester Road. (Id. at 78a-79a.) Wooster 

explained that the traffic is multi-municipality, not just local to the Township. 

(Id. at 79a.) When asked whether this is a typical intersection you would see in a 

single-family residential area, Wooster stated that people usually want to live on 

local roads. (Id.) Perry Highway and Rochester Road are arterial highways, not 

local roads. (Id.) 

Based on his traffic assessment, Wooster opined that the proposed CVS 

would not have any significant impact on the subject intersection. 

(Id. at 79a-80a, 94a.) Wooster explained that he generated the anticipated traffic to 

the proposed CVS consistent with traffic engineering industry standards, calculated 

the capacity and level of service both pre-development and post-development, and, 
8

based on the difference between the two, determined that the greatest impact to the 

subject intersection would be a 1.2-second delay. (Id. at 80a-81a.) Wooster stated

that the proposed CVS will require highway occupancy permits because Perry 

Highway and Rochester Road are both state-owned highways. (Id. at 81a.) Wooster 

stated further that he has no doubt that the Pennsylvania Department of 

Transportation will issue the highway occupancy permits without the need for any 

traffic mitigation because the proposed CVS will not have any significant impact on 

traffic conditions. (Id. at 81a-82a.)

Appellants also presented the testimony of Eidson. Eidson testified that 

at the time that she became the owner of the Property in November 2006, the 

Original Building was already boarded up. (Id. at 97a-98a.) Eidson testified further

that her aunt used the Medical Office Building for her medical practice from 

approximately 1980 through December 1990. (Id. at 98a-99a.) Eidson also testified 

that her aunt continued to reside in the Medical Office Building until she died in 

October of 2000. (Id. at 99a.) Thereafter, the Property passed through a life estate 

and was under the control of a court-appointed conservator until November 2006, 

when Eidson took ownership. (Id.) Eidson explained that during that 

approximately 7-year period, the Property was vacant. (Id.) Eidson described the 

Property as “devastation” at the time that she took ownership. (Id. at 100a.) Eidson 

stated that the condition of the Property was worse when she acquired it, because 

she has tried to make it better. (Id.) 

Eidson testified further that she listed the Property for residential sale 

in the spring of 2007. (Id. at 100a, 105a.) She explained that the Property has been 

on the market consistently since that time except for a period of about 2 years when 

she was between real estate agents. (Id. at 101a.) Eidson explained further that the 
9

asking price for the Property has always been $2.5 million at the recommendation 

of a real estate agent. (Id. at 103a-04a.) Eidson also testified that she has not 

received any legitimate written offers for the purchase of the Property, and that the 

only offers that she has received have been commercial in nature. (Id. at 102a.) 

Eidson indicated that she has resided in the residence portion of the Medical Office 

Building since March 2011. (Id. at 103a.) She described the medical office portion 

of the Medical Office Building as “unusable.” (Id.) When asked whether the 

Property’s deterioration was caused by vandalism, Eidson stated: “It was a 

combination. There were a couple break-ins, and pipes froze. And just not upkeep. 

Negligence.” (Id. at 104a-05a.) Eidson agreed that the highest percentage of the 

damage resulted from a failure to maintain the Property but indicated that it was not 

“under her watch.” (Id. at 105a.)

Appellants also presented the testimony of Mike Netzel (Netzel), a 

realtor licensed with Keller Williams Realty. (Id. at 108a.) Netzel testified that in 

his opinion the Property is not marketable for single-family residential use. 

(Id. at 109a.) Netzel testified further that the $135,000 appraised value is not 

representative of what the Property is worth as a residential property. (Id.) He 

explained: “Appraisers are very handcuffed today by the federal government with 

the economic collapse related to my industry. They really put tight constraints on 

what an appraiser can and cannot do. They have to go off sale data, proximity; and 

the comparable sales aren’t comparable.” (Id. at 109a-10a.) Netzel agreed that the 

commercial nature of the intersection of Perry Highway and Rochester Road affects 

the marketability of the Property for residential purposes. (Id. at 110a.) He stated

that the Property presents an inherent contradiction because people who are looking 

for a residential 1-acre lot are interested in privacy and no matter how far back you 
10

build the house, the Property is still located in a heavily congested area. 

(Id. at 111a.) 

Netzel testified further that he reviewed other residential properties 

located within a 1-block radius of the Property and the subject intersection that also 

deal with the traffic issue. (Id. at 111a-14a.) Netzel agreed that all of these 

properties are in better condition than the Property. (Id. at 116a.) Netzel suggested 

that at least some of these properties sat on the market for an extended period and 

then sold for less than asking price or were resold some years later for less than the 

purchase price—i.e., 742 Perry Highway sat on the market for almost 3 years and 

sold for $100,000 less than asking price and a Tudor home located in Wellington 

Heights sold for $267,000 in 2009 and $226,000 in 2013. (Id. at 112a-14a.) Netzel 

explained that traffic matters and “a home on a busy road is just not where people 

are looking to be.” (Id. at 131a.)

When asked what the value of the Property would be if the buildings 

were in immaculate condition, Netzel indicated about $250,000. (Id. at 118a-21a.) 

Netzel explained, however, that one of the buildings on the Property cannot be 

rehabbed and must be knocked down and the Property has “functional obsolescence 

out the wazoo.” (Id. at 119a-21a.) Netzel also indicated that without anything on 

the Property, he did not believe it was even worth $100,000. (Id. at 122a.) Netzel 

believed that the Property would without a doubt be worth more if it was zoned 

commercial and not residential. (Id. at 123a.) Netzel also indicated that there is no 

chance of obtaining a mortgage on the Property for residential purposes. 

(Id. at 125a-26a.) Netzel indicated further that none of the cash investors that he 

works with would touch the Property for residential purposes. (Id. at 130a.) He also 

stated that as far as rehabbing the Property, the floor plan of the Medical Office 
11

Building is “weird” for the residential marketplace, and you would not be able to 

obtain financing to perform any rehab. (Id. at 130a-31a.) Netzel, therefore, believed 

that the only value and potential future use of the Property would require the 

buildings to be demolished. (Id. at 131a.)2 

On August 26, 2016, the ZHB rendered its decision, denying 

Appellants’ Application. Sometime thereafter, the ZHB issued findings of fact and 

conclusions of law in support of its decision, wherein the ZHB made the following 

relevant conclusions of law:

3

44. Section 27-905 of the [Ordinance] sets forth the 

uses that are permitted in the Township’s 

R-1 [Zoning] District. Pursuant to Section 27-905 

of the [Ordinance,] “retail stores” are not permitted 

in an R-1 [Zoning] District. 

45. Pursuant to Section 27-905 [of the Ordinance], the 

following uses are permitted in the R-1 [Zoning] 

District: Single-Family Detached[,] Residential 

Day Care Facility[,] Group Home[,] 

Forestry/Logging[,] No Impact Home Business[,] 

and Residential Accessory Structure. Permitted by 

Conditional Use include: [Planned Residential 

Development (PRD)], Place of Worship, School, 

Day Care Facility, Public Recreational Facility, 

Private Recreational Facility, Golf Course, 

Emergency and Municipal Facility, Home 

Occupation, Accessory Office, and Temporary 

Structure. Permitted by Special Exception are: 

Public Utility Building and Storage Yard, 

 

2 The Board also heard statements from members of the public in opposition to Appellants’ 

Application and the proposed commercial development of the Property. (R.R. at 134a-56a.)

3 Although not dated, it appears that the ZHB issued its findings of fact and conclusions of 

law after Appellants filed their appeal with Common Pleas. All further references and citations to 

the ZHB’s decision shall be considered to be references to the ZHB’s findings of fact and 

conclusions of law.
12

Windmill, Parabolic or Satellite Dish Antennas, and 

Wireless Communications Antennas or Towers.

46. The [Property] is in an R-1 Zoning District in the 

[Township].

47. The proposed use is a 13,225 square foot building 

with 50 proposed parking spaces, to be accessible 

from Rochester Road and Perry Highway, and is not 

permitted in the Township’s R-1 Zoning District as 

“Retail Stores” are not permitted in the 

R-1 [Zoning] District under Section 27-905 of the 

[Ordinance]. 

. . . . 

51. Regarding the first hardship alleged by 

[Appellants], the ZHB concludes that the [Property] 

is not surrounded by dissimilar and incompatible 

commercial, institutional, and industrial uses, due to 

alleged rezoning of individual parcels and use 

variances, and does not create a substantial hardship 

for residential reuse of the site, and states:

a. [The Township’s] first comprehensive 

plan was adopted in 1971, which was 

followed by a strategic plan 

implemented by the Township in 

1995;

b. Despite the 1995 strategic plan of [the 

Township], in 2011, [the Township] 

Board of Commissioners denied 

Eidson’s request to rezone the 

[Property] from R-1 to C-3, by a vote 

of 0-9;

c. In 2015, [the Township] through its 

Board of Commissioners adopted a 

new comprehensive plan; and, 

d. Before the ZHB, [Appellants] argued 

that the use of the [Property] as a CVS 

store would be consistent with the 

Township’s Comprehensive Plan for 

pedestrian connection between 

neighborhoods and commercial 

districts, but [Appellants] have not 
13

filed an application for rezoning of the 

[Property] to the Board of 

Commissioners, based upon that 

Comprehensive Plan. 

52. [Appellants] also claimed a second hardship, that 

the Perry Highway and Rochester Road is a major 

regional intersection that has created a de facto

mixed commercial and residential use zoning 

district, that is not conducive to single[-]family 

residential use. The ZHB rejected this claim for the 

following reasons:

a. Section 27-905 and Section 27-906 [of 

the Ordinance] provide many 

permitted uses in the R-1 [Zoning] 

District and [Appellants] did not 

provide sufficient evidence that the 

[Property] could not be used for a use 

permitted in the R-1 [Zoning] District, 

. . . including, but not limited to: 

Single-Family Detached or Residential 

Day Care Facility, or Group Home; 

b. The testimony and evidence presented 

revealed that Eidson has never 

attempted to sell the [Property] for a 

residential use; 

c. The testimony and evidence presented 

demonstrated that Eidson’s asking 

price for the [Property] has always 

been $2.5 [million]; and, 

d. Evidence and testimony presented 

revealed that Eidson has used the 

[Property] for residential purposes, as 

her residence since 2011, a use 

permitted in Section 27-905 of the 

[Ordinance].

53. The ZHB rejected [Appellants’] clam [sic] of a third 

hardship, that the physical conditions of the 

buildings on the [Property] constitute substantial 

hardship, and provide the following reasons:
14

a. The presence of the parking lot on the 

[Property] and the commercial lighting 

fixtures lining the main driveway and 

parking lot do not limit the [P]roperty 

to use as a retail pharmacy; 

b. The evidence and testimony presented 

revealed that the current deplorable 

condition of the [Property] is due to 

Eidson’s failure to maintain and 

preserve the buildings on the 

[Property];

c. The Allegheny County assessed value 

of the [Property] has continued to 

increase despite its “unsound 

condition;” and, 

d. The evidence and testimony reveals 

that Eidson has been living at the 

[Property] since 2011, and has made 

no effort to use or maintain the 

[Property] as a medical office. 

54. The ZHB rejected [Appellants’] fourth claim that 

the size of the [Property] creates a unique hardship 

warranting the grant of a use variance as 

[Appellants] did not provide sufficient evidence that 

the [Property] could not be used as another use 

permitted in an R-1 [Zoning] District under 

Section 27-905 [of the Ordinance], other than a 

single-family residence.

55. Before the ZHB, [Appellants] argued that the 

development of a CVS Pharmacy allows for 

badly-needed and highly-desired sidewalk 

construction to take place at and around an 

intersection that they opine is heavily travelled and 

is not conducive to residential use. 

56. The ZHB concludes that a CVS Pharmacy, a

building of 13,225 square foot [sic] with 

50 proposed parking spaces, is not tantamount to a 

neighborhood pharmacy that pedestrians from the 

neighborhood could walk to and from, and would 

change the character of the neighborhood.
15

57. Finally, if a variance would otherwise be warranted, 

a CVS Pharmacy in a[n] R-1 [Zoning] District does 

not represent the least modification of the 

R-1 [Zoning] District regulation at issue. 

(ZHB Decision at 5-8 (emphasis in original).) Appellants appealed the ZHB’s 

decision to Common Pleas. By order dated May 4, 2017, Common Pleas affirmed 

the ZHB’s decision. Appellants then appealed to this Court. 

II. ISSUES ON APPEAL

On appeal,4 Appellants have raised seven issues for our consideration. 

For purposes of discussion and disposition, we have condensed the cognizable issues 

as follows: (1) whether the ZHB abused its discretion and/or committed an error of 

law by concluding that there was no unnecessary hardship associated with the use of 

the Property for residential purposes; (2) whether the ZHB abused its discretion and 

committed an error of law by concluding that Eidson created any unnecessary 

hardships that may exist with respect to the residential use of the Property;

(3) whether the ZHB abused its discretion and/or committed an error of law by

concluding that the use variance will not alter the essential character of the 

neighborhood or be detrimental to the public interest; and (4) whether the ZHB 

abused its discretion or committed an error of law by denying Appellants’ request 

for dimensional variances to reduce the number of required parking spaces. 

III. DISCUSSION

First, we address Appellants’ argument that the ZHB abused its 

discretion and/or committed an error of law by concluding that there was no

 

4

“Where a trial court takes no additional evidence in an appeal from a decision of the 

[ZHB], this Court is limited to considering whether the [ZHB] erred as a matter of law or abused 

its discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012). 

“A [ZHB] abuses its discretion if its findings are not supported by substantial evidence.” Arter v. 

Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth.), appeal denied, 

934 A.2d 75 (Pa. 2007).
16

unnecessary hardship associated with the use of the Property for residential 

purposes. More specifically, Appellants argue that the substantial evidence of record 

demonstrates the existence of 4 unnecessary hardships associated with the residential 

use of the Property: (1) the Property is located in an area that the Township 

previously designated a “Primary Commerce Corridor” and is surrounded by a 

“patchwork” of dissimilar and incompatible commercial and non-single-family 

residential uses; (2) the Property is located at an intersection that is not conducive to 

single-family residential use; (3) the Property’s commercial history and the current 

condition of the Original Building, the Garage, and the Medical Office Building; 

and (4) the Property’s physical features and size.

“It is well-established that substantial evidence is such relevant 

evidence as a reasonable person might accept as adequate to support a conclusion.” 

Adams Outdoor Adver., Ltd. v. Dep’t of Transp., 860 A.2d 600, 605 n.8 

(Pa. Cmwlth. 2004), appeal denied, 887 A.2d 1242 (Pa. 2005). “When performing 

a substantial evidence analysis, this Court must review the evidence in a light most 

favorable to the party who prevailed before the fact finder.” Id. This Court “may 

not substitute its interpretation of the evidence for that of the [ZHB].” Vanguard 

Cellular Sys., Inc. v. Zoning Hearing Bd. of Smithfield Twp., 568 A.2d 703, 707

(Pa. Cmwlth. 1989), appeal denied, 590 A.2d 760 (Pa. 1990). Assuming the record 

contains substantial evidence, we are bound by the ZHB’s findings that result from 

“resolutions of credibility and conflicting testimony rather than a capricious 

disregard of evidence.” Id. The ZHB, as the fact-finder, is free to reject even 

uncontradicted testimony it finds lacking in credibility. Id.

A variance is a departure from the exact provisions of a zoning 

ordinance. Brennen v. Zoning Bd. of Adjustment of the City of Connellsville, 
17

187 A.2d 180, 182 (Pa. 1963). Pursuant to Section 27-605(1) of the Ordinance, the 

ZHB may grant a variance if it finds that all of the following conditions exist, where 

relevant:

A. 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 this chapter in the neighborhood 

or district in which the property is located[;]

B. 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 this chapter and that the authorization 

of a variance is therefore necessary to enable the 

reasonable use of the property[;]

C. That such unnecessary hardship has not been 

created by the applicant[;]

D. 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[; and]

E. 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.

With respect to the Ordinance’s first requirement for a variance—i.e., 

unique physical circumstances or conditions of the subject property constituting an 

unnecessary hardship—this Court has explained:

Whether an applicant is seeking a use or a dimensional 

variance, the applicant must, at a minimum, demonstrate 

that an unnecessary hardship will result if a variance is 
18

denied and that the proposed use will not be contrary to 

the public interest. In the context of a use variance, an 

applicant must establish that an unnecessary hardship 

attends the land with evidence that: (a) the physical 

conditions of the property are such that it cannot be used 

for a permitted purpose; or (b) the property can be 

conformed for a permitted use only at a prohibitive 

expense; or (c) the property is valueless for any purpose 

permitted by the zoning ordinance. While an unnecessary 

hardship can be established by demonstrating that the 

hardship falls squarely within one of these three 

categories, in practice the evidence presented often does 

not fit neatly in one category or another but overlaps. 

When evaluating an unnecessary hardship, use of adjacent 

and surrounding land is relevant. Once an applicant has 

demonstrated that the property is subject to an unnecessary 

hardship, the party must also demonstrate that the 

conditions are unique to the property; where the hardship 

is present in the district as a whole or in a portion of the 

district, the proper remedy is re-zoning rather than a 

variance. 

Nowicki v. Zoning Hearing Bd. of the Borough of Monaca, 91 A.3d 287, 292 

(Pa. Cmwlth. 2014) (citations omitted).

With respect to their first allegation of unnecessary hardship, 

Appellants argue that they presented substantial evidence to the ZHB that establishes

that any residential use of the Property is impractical because “there are 

nearly 120 non[-]residential uses within a 3⁄4 mile radius of the Property.” 

(Appellants’ Br. at 44-45.) Appellants argue further that the Township’s history of 

spot zoning and granting of use variances “has created a de facto mixed commercial 

and residential use zoning district” where the Property is located. (Appellants’ Br. 

at 43.) In response, the ZHB argues that Appellants failed to establish that the area 

surrounding the Property is a de facto mixed-use zoning district that contains

dissimilar and incompatible commercial, institutional, and industrial uses or that any 

such de facto mixed-use zoning district created a substantial hardship for the 
19

residential use of the Property. The ZHB argues further that it properly rejected 

Schwartz’s testimony regarding the creation of a mixed-use zoning district because: 

(1) while Schwartz provided a list of several non-residential uses surrounding the 

Property, he did not provide a similar list for residential uses; and (2) Schwartz did 

not identify which of the surrounding non-residential uses were located in the 

Township and which were located in West View, a neighboring municipality.

5

 

The ZHB’s conclusion that Appellants failed to demonstrate that the 

area surrounding the Property is a de facto mixed-use zoning district that contains 

dissimilar and incompatible commercial, institutional, and industrial uses or that any 

such de facto mixed-use zoning district has created a substantial hardship for the 

residential use of the Property is supported by substantial evidence of record. 

Schwartz testified that within 3⁄4 of a mile of the Property, there are 

approximately 96 non-residential, commercial, and industrial uses. 

(R.R. at 39a-40a.) Schwartz admitted, however, that he did not identify which of 

those uses were located within the Township and which of those uses were located 

within the neighboring municipality of West View. (Id. at 40a.) In addition, it 

appears that in his analysis of the surrounding uses, Schwartz ignored the residential 

uses surrounding the Property, as there are no residential uses identified in 

Appendix 2 of his report. (See id. at 410a-11a.) Thus, Appellants failed to present 

a clear picture of the Property’s surrounding uses so that the ZHB could effectively 

 

5

In its brief, the ZHB indicates that Appellants offered testimony relative to the 

Township’s 1995 Strategic Plan and 2015 Comprehensive Plan and a 2011 attempt to rezone the 

Property in support of their first allegation of unnecessary hardship. In their reply brief, Appellants

essentially respond that Schwartz’s testimony on these matters was for background purposes only 

and that by highlighting these facts, the ZHB is attempting to deflect the Court’s attention from 

the actual bases for their first allegation of hardship. We do not believe that a discussion of these 

matters is necessary to dispose of Appellants’ arguments on appeal, and, therefore, we will not 

address these arguments in any further detail. 
20

consider whether the Property is located within a de facto mixed-use zoning district. 

Furthermore, even if the Property is located within a de facto mixed-use zoning 

district, Appellants have not shown how the Property’s location in such a de facto

mixed-use zoning district creates an unnecessary hardship that is unique to the 

Property and separate and distinct from any hardship to other residential properties 

located within the same de facto mixed-use zoning district. Under those 

circumstances, all residential properties will be subject to the same hardships. For 

these reasons, we conclude that the ZHB did not abuse its discretion or commit an 

error of law by rejecting Appellants’ first allegation of hardship. 

With respect to their second allegation of unnecessary hardship, 

Appellants argue that they presented substantial evidence to the ZHB that establishes 

that the intersection upon which the Property is located is not conducive to 

single-family residential use due to high traffic volumes and the arterial character of 

Perry Highway and Rochester Road. Appellants argue further that “with a volume 

of 22,000 daily trips and 12 turning lanes of traffic[,] . . . the [s]ubject [i]ntersection 

. . . has been effectively rendered obsolete for its original residential use.” 

(Appellants’ Br. at 45.) Appellants also argue that the hardship created by the 

subject intersection is unique to the Property because it is the only property located 

within an R-1 Zoning District that contains driveways accessible by both Perry 

Highway and Rochester Road. In response, the ZHB argues that Appellants failed 

to establish that the subject intersection “is a major regional intersection that is not 

conducive to single[-]family residential use” or that the subject intersection created 

a substantial hardship for the residential use of the Property. (ZHB’s Br. at 21.) 

The ZHB’s conclusion that Appellants failed to demonstrate that the 

intersection of Perry Highway and Rochester Road is not conducive to single-family 
21

residential use and, therefore, has not created an unnecessary hardship is supported 

by substantial evidence of record. Schwartz testified that 22,000 vehicles at an 

intersection in a single-family residential area “is an extreme number.” 

(R.R. at 58a-59a.) Schwartz also testified that if the zoning map was reworked, he 

would not recommend low-density residential at the subject intersection. 

(Id. at 66a.) Similarly, Wooster explained that people want to live on local roads, 

not arterial highways like Perry Highway and Rochester Road. (Id. at 79a.) 

Likewise, Netzel stated that the commercial nature of the subject intersection affects 

the marketability of the Property. (Id. at 110a.) Appellants did not, however, present 

any evidence or testimony that because of the subject intersection there is no 

possibility that the Property can be developed for residential purposes or for any 

other purpose permitted in an R-1 Zoning District—i.e., Appellants’ witnesses 

appear to have stopped short of this conclusion. Furthermore, while Pennsylvania 

courts have “upheld the grant of a variance where no evidence of an attempt to sell 

the property was submitted . . . evidence of the owners’ inability to sell his property 

has unquestionable probative value.” Valley View Civic Ass’n v. Zoning Bd. of 

Adjustment, 462 A.2d 637, 642 (Pa. 1983). The ZHB noted, however, that Eidson 

did not establish that she attempted to sell the Property for residential purposes; 

rather, she only established that she attempted to sell the Property for an inflated 

price tag of $2.5 million. Thus, the ZHB gave no weight to Eidson’s “effort” to sell 

the Property. 

In addition, Appellants have not established how the intersection of 

Perry Highway and Rochester Road creates an unnecessary hardship that is unique 

to the Property and separate and distinct from any hardship to other residential 

properties located at or around such intersection. Contrary to Appellants’ 
22

allegations, the fact that the Property has driveways accessible by both Perry 

Highway and Rochester Road does not necessarily make the hardship unique to the 

Property. Arguably, having a second driveway access to Rochester Road could put 

the Property in a better position than other residential properties located on Perry 

Highway. For these reasons, we conclude that the ZHB did not abuse its discretion 

or commit an error of law by rejecting Appellants’ second allegation of hardship.

With respect to their third allegation of unnecessary hardship, 

Appellants argue that they presented substantial evidence to the ZHB that the 

Property is practically valueless for residential purposes and that any future use of 

the Property will require demolition of the existing structures due to the unsound 

condition of the Original Building and the Garage and the uninhabitable condition 

of the Medical Office Building. Appellants argue further that the non-conforming 

commercial nature of the Medical Office Building and the existence of the 

commercial grade parking lot and the commercial lighting fixtures in and of 

themselves create a substantial hardship for the residential use of the Property. In 

response, the ZHB argues that Appellants failed to establish that the physical 

condition of the Property created a substantial hardship for the residential use of the 

Property. The ZHB argues further that the record does not support a conclusion that

the presence of the commercial grade parking lot and the commercial lighting 

fixtures prevent the Property from being used for a permitted use—i.e., a group 

home, a residential care facility, or multiple single-family dwellings. The ZHB also 

argues that the record does not demonstrate that the Property would be almost 

valueless without the grant of a use variance or that developmental costs rendered 

the Property impractical for any residential use. 
23

The ZHB’s conclusion that Appellants failed to demonstrate that the 

physical condition of the Property constitutes a substantial hardship for the 

residential use of the Property is supported by substantial evidence of record. 

Mitchell testified that he did not believe that the Property could be used without 

demolishing the existing structures. (R.R. at 27a.) Schwartz testified that the 

Medical Office Building, which the Court notes is attached to the residence in which 

Eidson resides on the Property, was “a purpose-built commercial building” and 

converting it to residential use would be a hardship. (Id. at 68a.) Netzel testified 

that the buildings on the Property would need to be demolished for the Property to 

have value. (Id. at 131a.) Although the ZHB did not set forth its credibility 

determinations in writing, we can infer that the ZHB did not find Mitchell’s, 

Schwartz’s, and Netzel’s testimony in this regard to be credible. Rather, it appears 

that the ZHB relied on the fact that DiCola used the Property solely as her residence 

from December 31, 1990 through October 2000 and Eidson has been living at the 

Property since 2011, as a basis to conclude that the physical condition of the Property 

and the commercial purpose of the Medical Office Building do not preclude the 

Property’s use for residential purposes.6 The ZHB also appears to rely on the fact 

that Appellants did not consider other potential permitted uses for the Property. 

While we acknowledge that “an applicant for a variance for a legally 

non-conforming property [need not] eliminate every possible permitted use[,]” it 

does not appear from the record that Appellants considered any permitted use other 

than single-family residential. Marshall v. City of Phila., 97 A.3d 323, 332 

 

6 Appellants suggest that “the ZHB’s finding that no hardship exists because [Eidson] 

currently resides at the [Property] is tantamount to a death sentence[,]” because Eidson is of very 

limited means and lives in the residential portion of the Medical Office Building out of necessity. 

(Appellants’ Br. at 48.) Appellants, however, have not identified where in the record these facts 

can be found. Thus, we will not consider such facts for the purposes of this appeal. 
24

(Pa. 2014). This evidence and testimony supports the ZHB’s conclusion that 

Appellants failed to demonstrate that the physical condition of the Property 

constitutes a substantial hardship for the residential use of the Property. For these 

reasons, we conclude that the ZHB did not abuse its discretion or commit an error 

of law by rejecting Appellants’ third allegation of hardship.

With respect to their fourth allegation of unnecessary hardship, 

Appellants argue that they presented substantial evidence to the ZHB that the 

Property is “too large to attract interest from potential buyers who are looking to 

construct a single-family home” and “too small to attract interest from modern-day 

home developers, who seek significantly (and increasingly) larger acreages of land 

to subdivide and develop.” (Appellants’ Br. at 52.) Appellants argue further that it 

was improper for the ZHB to reject the Property’s size as a hardship on the basis that 

the Property could potentially be used for another permitted use. In response, the 

ZHB argues that Appellants failed to establish that the Property’s size created a 

substantial hardship for the residential use of the Property because: (1) Appellants 

did not provide evidence that the Property could not be used for another permitted 

use; and (2) an aerial photo of the area demonstrated that the size of the Property is 

consistent with surrounding properties that are being used for residential purposes. 

The ZHB’s conclusion that Appellants failed to demonstrate that the 

Property’s size created a substantial hardship preventing the residential use of the 

Property is supported by substantial evidence of record. Schwartz testified that the 

Property is difficult to sell for residential purposes because it is larger than what 

people are looking for in a single-family residential lot and it is too small to 

subdivide into more than 3 single-family lots. (R.R. at 64a-66a.) Again, while the 

ZHB did not set forth its credibility determinations in writing, it can be inferred that 
25

the ZHB rejected Schwartz’s testimony in this regard. In addition, Common Pleas 

noted that “[a]n aerial view of the area shows that the size of the Property is 

consistent with the surrounding properties and other lots are used for residential 

purposes[,]” thus establishing that the Property’s size does not create a unique 

hardship that is separate and distinct from other neighboring residential properties. 

(Common Pleas’ Op. at 5; see also Supplemental Reproduced Record (Supp. R.R.) 

at 1b.) As a result, we conclude that the ZHB did not abuse its discretion or commit 

an error of law by rejecting Appellants’ fourth allegation of hardship.

For all of the reasons set forth above, we conclude that the ZHB did not 

abuse its discretion or commit an error of law by concluding that there was no 

unnecessary hardship associated with the use of the Property for residential 

purposes.

7

 Because the ZHB did not abuse its discretion or commit an error of law 

in this regard, Common Pleas did not err in affirming the ZHB’s decision and order. 

IV. CONCLUSION

Accordingly, we affirm Common Pleas’ order.

P. KEVIN BROBSON, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

 

7 Given our disposition above, we need not address Appellants’ remaining arguments on 

appeal, because, without establishing an unnecessary hardship, Appellants cannot obtain the 

requested use and dimensional variances.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pamela Eidson and :

J.C. Bar Properties, Inc., :

Appellants :

:

v. : No. 714 C.D. 2017

:

Ross Township Zoning :

Hearing Board and :

Township of Ross :

O R D E R

AND NOW, this 12th day of March, 2018, the order of the Court of 

Common Pleas of Allegheny County is hereby AFFIRMED. 

P. KEVIN BROBSON, Judge