IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dale DeAngelo and Lesley DeAngelo, : Appellants :

:

v. : No. 770 C.D. 2018

: Argued: February 11, 2019

North Strabane Township : Zoning Hearing Board :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: April 17 , 2019

Dale DeAngelo and Lesley D eAngelo (Landowners) appeal an order of

the Court of Common Pleas of Washington County (trial court) that affirmed the

decision of the Zoning Hearing Board of North Strabane Township ( Zoning Board)

to deny their validity challenge to the z oning o rdinance as well as their variance

application. Landowners seek to build a medical clinic in a residential zoning

district

. For the following reasons, we affirm in part and v acate and r emand in part.

Background

Landowners own a two

- acre property in the R

- 3 H igh Density

Residential Zoning District located in North Strabane Township (Township)

. T he

North Strabane Township Zoning Ordinance ( Zoning Ordinance ) 1 allows a medical

clinic as a conditional use in an R

- 3 D istrict as long as it is “ established in

conjunction with, part of and adjacent to an assisted living facility, independent

1 N ORTH S TRABANE T OWNSHIP M UNICIPAL C ODE , Chapter 27, as amended , added by Zoning

Ordinance No. 314, July 25, 2006.2

living facility, life care community or nursing home.” Z ONING O RDINANCE

§ 13 03.34 (B).

On July 13, 2017, Landowners challenged Section 1303.34(B) of the

Zoning Ordinance as impermissibly restrictive

. In their application to the Zoning

Board

, Landowners stated

, in pertinent part, as follows :

Requirements that medical clinic in an R

- 3 Zoning District be

affiliated with nursing home, assisted living facility and the like.

The requirement constitutes excl usionary or restrictive zoning

and is therefore unenforceable. [ Landowners ] cannot develop

property desired due to restrictive language of [the Zoning ]

Ordinance

. Applicable Zoning Ordinance language also

discriminatorily restrictive. Language creates ha rdship not of

Landowners making.

Reproduced Record at 2 0a (R.R. __). The Zoning Board held a public hearing on

September 6, 2017.

At the hearing, Landowners asserted that Section 1303.34 (B)

constitutes “de facto exclusionary and restrictive zoning” and requested that the

Zoning Board interpret Section 1303.34 (B) as “invalid, illegal, [or] unenforceable.”

Hearing Transcript, 9/6/2017, at 8; R.R. 52a. In support, Landowners pointed out

that the requirement that a medical clinic be allowed only in conjunction with a life

care community conflict ed with the Zoning Ordinance’s definition of a “ medical

clinic,” which states:

A ny establishment, including mobile diagnostic units

, where

persons rece ive medical, dental, chiropractic and surgical

diagnosis, treatment and counseling under the care of a group of

licensed medical doctors and dentists and their supporting staff,

where said patients are not provided with board or room or kept

overnight on t he premises

.3

Z ONING O RDINANCE §201

. Landowners asserted that it is impossible to develop a

medical clinic that complies with both Section 201 and Section 1303.34(B). Further,

m edical clinics located in the C

- 1 Highway Commercial and C

- 2 Regional

Commercial Distri cts are not subject to the restrictions set forth in Section

1303.34 (B)

. All these “ inconsistencies, ” according to Landowners

, rendered the

requirements in Section 1303.34 (B) invalid and unenforceable. Hearing Transcript

at 15; R.R. 59a.

Landowners also challenged the extensive acreage for a medical clinic

in the R

- 3 District required by Section 1303.34(B)

. A life care community requires

20 acres, and an assisted or independent living facilit y require s five acres. Z ONING

O RDINANCE § § 1303.5(A), 1303.29 (A). Landowners asserted that t here was no

parcel in the R

- 3 D istrict large enough to accommodate a clinic and facility as

required in Section 1303.34 (B)

. Landowners maintained that Section 1303.34 (B) is

de facto exclusionary to the ext ent it precludes a stand

- alone medical clinic in an R

3 D istrict.

Alternatively, Landowners sought a variance

, 2 asserting an unn ecessary

hardship created by the “restrictive and [] unenforceable nature of the language in

and associated with an R

- 3 [ D istrict].” Hearing Transcript at 20; R.R. 64a. When

t he Zoning Board questioned Landowners about the type of facility they propose d

,

they responded that “at this time there isn’t anything definite. We would do

whatever to fit in.” Hearing Transcript at 12; R.R. 56a.

2 Landowners explained at the hearing that they had filed an application for a conditional use with

the Board of Supervisors. The solicitor advised them that the Board of Supervisors would deny

their application for failing to meet the requirements of Section 1303.34 (B) . The solicitor advised

Landowners to “go to the Zoning Hearing Board first.” Hearing Transcript at 13; R.R. 57a.4 The Zoning Board did not take evidence at the hearing, explaining that

it would decide only “whether the [O]rdinance needs an interpretation”:

It’s a strictly legal issue. And I don’t see any need to offer any testimony. I want to keep thi s thing as simple as possible...

. We ’re not here to say whether [ Landowners ] can do it or not.

We’re here to say whether the [O]rdinance needs an interpretation in our mind to correct a deficiency that

[ Landowners ] say[] exists in our [O]rdinance. And whi ch allow

[them] to put a medical clinic in a R

- 3 [D] istrict. [They are]

saying what the Supervisors did in requiring it to be attached to

another type of facility is improper.... It’s the legal issue

involving whether the [O]rdinance is subject to interpretation.

That’s the issue in this case and that’s what we’ ll decide.

Hearing Transcript at 30

- 31; R.R. 74a

- 75a. The Zoning Board continued the hearing

to October 4, 2017, to allow Landowners to submit a legal memorandum

, which they

did, reiterating that the Zoning Ordinance is exclusionary and that construction of a

medical clinic consistent with Section 1303.34 (B) would cost “additional millions

of dollars.” R.R. 95a.

On October 4, 2017, the Zoning Board voted to uphold the Zonin g

Ordinance and deny Landowners ’ request for a variance. The Zoning Board

concluded that the Zoning Ordinance is not exclusionary

, noting that s tand

- alone

medical clinic s are permitted in C

- 1 and C

- 2 D istricts.

In d enying Landowners ’ request for a varia nce, the Zoning Board made

the following findings of fact:

4. The proposed variance is for a use variance.

***

6. [ Landowners ] appeared with counsel and offered testimony

and exhibits.

***5 9. [ Landowners ] wish to use the property for a medical clinic.

10. [ Landowners ] do not plan to establish the clinic in

conjunction with, part of and adjacent to an assisted living

facility, independent living facility, life care community or nursing home.

Board Decision at 2

- 3; Findings of Fact ¶¶4, 6, 9, 10. The Zoning Board held that

Landowners did not show an unnecessary hardship.

Landowners appealed to the trial cour t, challenging t he Zoning

Ordinance conditions attached to the medical clinic in an R

- 3 D istrict as s o restrictive

as to constitute de facto exclusionar y zoning. Landowners further argued that the

Zoning Board denied them a full and fair opportunity to make their case for a

variance.

In a decision of May 10, 2018, the trial cour t affirmed the Zoning

Board’s decision. It concluded that the Zoning Ordin ance is not de jure exclusionary

because it permits a medical clinic as a conditional use in an R

- 3 D istrict, and it

permits stand

- alone medi cal clinics in the C

- 1 and C

- 2 D istricts. As to de facto

exclusion, the trial court held that Landowners failed to prove that the Zoning

Ordinance effectively excludes a legitimate use. The trial court rejected

Landowners ’ claim that no lot in the R

- 3 D istrict has enough acreage to

accommodate a medical clinic and affiliated facility

, noting that a nursing home

requires only two acres

.

As to Landowners’ argument that the Zoning Board denied them a full

and fair opportunity to present their case f or a variance, the trial court observed that

Landowners were given two hearings and an opportunity to submit a memorandum.

This satisfied due process. Landowners did not prove any of th e requirements for a

variance, which requires more than mere e conomic hardship

.6 Appeal

Landowners have appeal ed to this Court

, and they raise two issues for

our review. 3 First, they argue that the trial court erred

, asserting that the conditions

for a medical clinic in an R

- 3 D istrict constitute de facto exclusionary zoning.

Second, t hey argue that the Zoning Board denied them a full and fair opportunity to

present their request for a variance. We address these issues seriatim

.

I. Validity Challenge to the Zoning Ordinance

In their first issue, Landowners offer several arguments in support of

their contention that the conditions for a medical clinic in an R

- 3 D istrict constitute

de facto exclusionary zoning. Requiring a medical clinic to “be established in

conjunction with, part of and adjacent to an assisted living facility, independent

living facility, life care community or nursing home ” precludes mobi le diagnostic

units, which are not permanent structures. Z ONING O RDINANCE §1303.34 (B)

.

Landowners argue that n o property in the R

- 3 D istrict is large enough to

accommodate a clinic and assisted living facility

, and this make s Section 1303.34(B)

of the Zo ning Ordinance exclusionary

. 4 Further, the Zoning Board did not address

the “improper distinction” between s tand

- alone m edical clinics that are permitted in

C

- 1 and C

- 2 D istricts without the Section 1303.34 (B) condition

. Landowners Brief

at 9. Landowners maintain that the conditions in Section 1303.34(B) are manifestly

3 Where, as here, the trial court does not take additional evidence, our scope of review is limited

to determining whether the Zoning Boa rd committed an error of law or “a manifest abuse of

discretion.” Valley View Civic Association v. Zoning Board of Adjustment , 462 A.2d 637, 639 (Pa.

1983). A zoning board abuses its discretion “only if its findings are not supported by substantial

evide nce.” Id . at 640. Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id

.

4 The minimum lot size for a medical clinic is two acres. By contrast, a life care community

requires 20 acres , and an assisted or indepe ndent living facility requires five acres. Zoning

Ordinance § § 1303.5(A), 1303.29(A).7

unreasonable and effectively preclude a medical clinic in the R

- 3 D istrict

, despite its

purported authorization

.

A zoning o rdinance enjoys a presumption of constitutionality and

validity

. The challenging party has the “heavy burden of establishing its invalidity.”

Kirk v. Zoning Hearing Board of Honey Brook Township

, 713 A.2d 1226, 1229 (Pa.

Cmwlth. 1998). The challenger must show that the zoning o rdinance is

unreasonable, arbi trary or not substantially related to the police power interest the

z oning o rdinance purports to serve. Hanson Aggregates Pennsylvania, Inc. v.

College Township Council

, 911 A.2d 592, 595 (Pa. Cmwlth. 2006). A de jure

exclusion exists where a z oning o rdi nance

, on its face, prohibits a legitimate use. A

de facto exclusion exists where an o rdinance purports to allow a use but

, when

applied, in actuality prohibit s the use throughout the municipality. In re Bartkowski

Investment Group, Inc

., 106 A.3d 230, 238 (Pa. Cmwlth. 2014). Once the challenger

meets this burden, the municipality must show that the z oning o rdinance bears a

substantial relationship to the publ ic health, safety, and welfare. Hanson Aggregates

Pennsylvania

, 911 A.2d at 5 95.

Landowners argue that the requirements set forth in Section 1303.34 (B)

of the Zoning Ordinance preclude a stand

- alone m edical clinic in an R

- 3 D istrict.

This is correct

. Section 801 of the Zoning Ordinance states in pertinent part:

In the R

- 3 High

- D ensity Residential District, only the following

uses are authorize d:

***

B. Conditional uses:

(1) Principal uses:

(a) Active recreation, low

- impact,

subject to § 1303, Subsection 2.8 (b) Assisted

- living or independent

living facility, subject to § 1303,

Subsection 5.

(c) Clinic

- medical, subject to

§ 1303.34

.

(d) Life

- care community, subject to

§ 1303, Subsection 29.

(e) Nursing home, subject to § 1303,

Subsection 34.

***

Z ONING O RDINANCE §801 ( emphasis added ). In turn, Section 1303.34 provides that

uses that are listed in any zoning district as a conditional use or

use by special exception shall comply with the applicable

standards and criteria specified below for that use.

***

34. Nursing home, hospital, hospice or medical clinic, subject to:

***

B. In the R

- 3 District, a medical clinic shall only be

established in conjunction with, part of and adjacent

to an assisted living facility, independent living

facility, life care community or nursing home.

Z ONING O RDINANCE §1303.34(B). A stand

- alone medical cl inic is not a permitted

use in an R

- 3 D istrict

, but it does not follow that the Zoning Ordinance is

exclusionary

.

A de facto exclusion exists where an o rdinance “ acts to prohibit the use

throughout the municipality.” In re Bartkowski

, 106 A.3d at 238. T he Zoning

Ordinance does not prohibit medical clinics throughout the municipality ; it permits

stand

- alone medical cl inics in C

- 1 and C

- 2 D istricts

. Z ONING O RDINANCE9

§ § 901(A)(1)( ff), 1001(A)(1)( hh). Section 1303.34 (B) does not effect a total

prohibition o f stand

- alone medical clinics

, and we reject Landowners ’ argument that

the Zoning Ordinance is exclusionary

.

Landowners next argue that Section 1303.34 (B)

, which does not a pply

to medical clinics in C

- 1 and C

- 2 D istricts

, is arbitrary and unreasonable because it

does not advance the purpose of the R

- 3 District. The Zoning Board responds that

a zoning o rdinance will not be found unconstitutional “merely because it deprives

the owner of the most lucrative

... uses ” of property. Board Brief at 7 (quoting KS

Development Company, L.P. v. Lower Nazareth Township

, 149 A.3d 105, 116 (Pa.

Cmwlth. 2016)).

In considering the validity of a zoning o rdinance

, “courts defer to the

legislative body.” Rice Family Trust v. City of St. Marys

, 51 A.3d 913, 917 (Pa.

Cmwlth. 2012). A zoning o rdinance ’s consistency with the stated purpose of a

particular zoning district is a significant factor in determining its reasonableness. Id

.

Only where it is obvious that the classification of a zoning district bears no relation

to public health, safety, morals, or general w elfare, will the court disturb the

legislative judgment of the municipality

. Id

. at 918.

In Rice Family Trust

, a property owner appealed the city’s denial of its

request for a curative amendment to the city’s zoning o rdinance to have the property

rezoned from residential to central business

. The property owner argued that the

zoning o rdinance was arbitrary and unrea sonable because it excluded the historic

uses of the premises

, which included an accounting office. Further, t he character of

the neighborhood was becoming commercial, which belied the zoning o rdinance ’s

stated purpose to “permit a continued development p attern that has evolved in these

older existing neighborhoods.” Id. at 917.10 The trial court denied the appeal, and this Court affirmed. In doing so,

we observed that the stated purpose of the district was to preserve the residential

character of the ne ighborhood and to limit the uses “to complement these existing

neighborhoods, with accessory uses that will not detract from the residential

character.” Id. at 918. We stated:

To protect the residential character of the neighborhood, the

[city] made the legislative judgment that prohibiting professional

offices would discourage commercial development that detracts

from the “residential character” of the neighborhood. Even were

the Court to agree that the best use of the Property is as a mixed

professiona l office and four

- unit apartment building, we may not

substitute our judgment for that of the [city]. Courts do not

function as a super zoning hearing board or a planning

commission of last resort.

Id

. (emphasis added).

Likewise, here

, Landowners seek t o place a commercial use within a

residential district. The Zoning Ordinance states as follows:

The purpose of [the R

- 3 High

- Density Residential District] is to

provide for medium

- density single

- family development and to

provide multifamily housing opportunities in planned residential

developments in areas served by public sewers and other public

ser vices and to provide for compatible public, semipublic and

accessory uses as conditional uses or uses by special exception.

Z ONING O RDINANCE §800. Section 1303.34 (B) is consistent with the above

- stated

purpose because it limits a medical clinic to one ass ociated with a facility that has a

“residential character.”

The Zoning Ordinance defines an assisted living facility as “[a]

residential building or group of buildings designed to provide multifamily dwelling

units for elderly or physically or mentally disabled persons who are independently

mobile and are not in need of the level of service provided by a personal

- care11

home [.]” Z ONING O RDINANCE §20 1 ( emphasis added)

. An independent living

facility is defined as “[a] residential building or group of buildings designed to

provide housing for elderly or senior citizens who are independently mobile and not

in need of supervision[.]” Id

. ( emphasis added)

. A life

- care community is “[a]

residential development that provides a continuum of care for the elderly[.]” Id

.

( emphasis added)

. A nursing home is “[a]n institution licensed by the

Commonwealth for the care of human patients requiring skilled nursing or

intermediate nursing care

... but not including facilities for major surgery or care

and treatment of drug or alcohol addiction.” Id

.

To provide for single

- family and multifamily housing development

with “compatible public, semipublic, and acc essory uses as conditional uses,”

Z ONING O RDINANCE §800, the Township made the legislative judgment to permit a

medical clinic

, a commercial use, in the R

- 3 D istrict but only where it is established

“in conjunction with, part of and adjacent to” a resident ial facility set forth in Section

1303.34 (B)

. Z ONING O RDINANCE §1303.34 (B)

. T he Zoning Ordinance is rationally

related to a legitimate governmental purpose

, and we will “not substitute our

judgment for that of the [Township].” Rice Family Trust

, 51 A.3d at 918. See also

Zangrilli v. Zoning Hearing Board of Borough of Dormont

, 692 A.2d 656 (Pa.

Cmwlth. 1997) (lac k of rational relationship to legitimate governmental purpose

m ust be obvious in order for zoning o rdinance to be found invalid). We hold that

Landowners have failed to satisfy their “heavy burden of establishing [the]

invalidity” of the Zoning Ordinance

. Kirk

, 713 A.2d at 122 9

.

II. Variance

Landowners next argue that the Zoning Board denied them a full and

fair opportunity to present their case in support of their variance request

. T hey12

maintain that they requested a dimensional variance, as opposed to a use variance to

which “strict ‘unnecessary hardship’ standards” apply. Landowners Brief at 15

.

In any case, Landowners argue that the Zon ing Board rushed them

through their presentation without taking any evidence on their variance request.

The ir legal memorandum was limited to the interpretation of the Zoning Ordinance

and not to the variance request. The Zoning Board responds that “the Constitution

does not require perfection at every stage of the adjudicatory process,” and

Landowners were afforded “ample opportunity” to present their case. Board Brief

at 9

- 10.

A. Nature of the Variance Request

The Zoning Ordinance sets forth the standards for obtaining relief from

its requirements. Section 1805 states as follows :

The [ Zoning Board], upon appeal, shall have the power to

authorize variances from the requirements of this chapter and to

attach such conditions to the variance as it de ems necessary to

assure compliance with the purposes of this chapter. A variance

may be granted if all of the following findings are made

, where

relevant in a given case:

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 crea ted 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 pro visions of this chapter and that the

authorization of a variance is therefore necessary to enable the

reasonable use of the property.13 C. That such unnecessary hardship has not been created by the

appellant.

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.

E. That the variance, if authoriz ed, will represent the minimum

variance necessary to afford relief and will represent the least

modification possible of the regulation in issue.

Z ONING O RDINANCE §1805 ( emphasis added )

. Section 1805 of the Zoning Ordinance

is nearly identical to Section 910.2 of the Pennsylvania Municipalities Planning

Code (MPC), 5 which authoriz e s a zoning hearing board’s grant or denial of a

variance. U nnecessary hardship requires evidence that: (1) the physical

characteristics of the property are such that the property could not be use d for any

permitted purpose; (2) the property can be conformed for a permitted use only at a

prohibitive expense; or (3) the property has no value for any pur pose permitted by

the zoning o rdinance

. Marshall v. City of Philadelphia

, 97 A.3d 323, 329 (Pa. 2014).

Ou r Supreme Court has established that when evaluating unnecessary

hardship in the context of a dimensional variance

, courts may consider “ the financial

hardship created by any work necessary to bring the building into strict compliance

with the zoning requirements and the characteristics of the surrounding

neighborhood.” Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh

, 721

A.2 d 43, 50 (Pa. 1998). Further, the “quantum of proof required to establish

unnecessary hardship is indeed lesser when a dimensional variance

... is sought”

5 Act of July 31, 1968, P.L. 805, as amended , added by the Act of December 21, 1998, P.L. 1329,

53 P.S. §10910.2.14

because “the grant of a dimensional variance is of less e r moment than the grant of a

use variance, sin ce [a use variance] involves a proposal to use the property in a

manner that is wholly outside the zoning regulation.” Id

. at 47

- 48. Even so,

H ertzberg did not remove the hardship requirements for a dimensional variance

.

Tidd v. Lower Saucon Township Zo ning Hearing Board

, 118 A.3d 1 (Pa. Cmwlth.

2015). I t is still the case that “[t]he burden on an applicant seeking a variance is a

heavy one, and the reasons for granting the variance must be substantial, serious and

compelling.” Singer v. Philadelphia Z oning Board of Adjustment

, 29 A.3d 144, 149

(Pa. Cmwlth. 2011).

Landowners argue that the Zoning Board erred in treating their

application as a use variance because a medical clinic is not “wholly outside the

zoning regulation” but, rather, allowed a s a co nditional use in the R

- 3 D istrict

.

Hertzberg

, 721 A.2d at 48. They contend that their request for a variance is subject

to the “less stringent standard” of Hertzberg

. Landowners Brief at 15. The Zoning

Board counters that Landowners “want to use the property for a purpose not

permitted without conditions in the R

- 3 [D] istrict.” Board Brief at 9.

This Court addressed the differences between a dimensional variance

and a use variance in Society Created to Reduce Urban Blight (SCRUB) v. Zoning

Board of Adjustment for the City of Philadelphia

, 787 A.2d 1123 (Pa. Cmwlth.

2001). In that case, a railroad sought to erect a non

- accessory, outdoor advertising

sign on its property in an i ndustria l district

. Its zoning permit was denied because

its proposed sign would exceed the permitted height ; would be placed less than 500

feet from another sign and closer than 660 feet to a highway ramp ; and would deviate

from the requirement that o nly one sign support structure was permitted on the lot

.15 When t he zoning board of adjustment granted the railroad a variance

from these restrictions

, objector s appealed

, and the trial court reversed. In a ffirming

the trial court, this Court observed tha t “a dimensional variance contemplates only a

reasonable adjustment from area and space requirements in order to develop a

permitted use .” Id. at 1126 (emphasis in original). T he zoning ordinance prohibited

outdoor advertising unless the above

- enumerated requirements were met

, and those

requirements could not be reasonably characterized as “ dimensional.” Id. at 1127.

Thus, the variance application required the stricter review exacted in the case of a

use variance.

We reached a similar conclusion in Plumstead Township Board of

Supervisors v. Plumstead Township Zoning Hearing Board (Pa. Cmwlth., Nos. 1254

C.D. 2007, 1318 C.D. 2017, filed April 10, 2008) (unreported)

. 6 There, the

landowner, who sought to build an office on a 1 .5

- acre lot, requested a v ariance from

the forest preservation requirement. The zoning board granted the variance

,

reasoning that the standard “was dimensional in nature because it required a

modification of a set number

... as opposed to a modification of an outright

prohibition of deforestation.” Id.

, s lip op. at 4. This Court held otherwise. We

concluded that the forest preservation requirement was not a dimensional standard

because it was “substantially different in character from lot width, building area,

setbacks and impervi ous surface limitations and that any departure from [the forest

preservation requirement] must be made by means of a use variance.” Id.

, s lip op.

at 8. Accordingly, the zoning board erred in treating the variance as dimensional.

6 Section 414(a) of the Com monwealth Court’s Internal Operating Procedures states that an

unreported panel decision of this Court may be cited “for its persuasive value, but not as binding

precedent.” 210 Pa. Code §69.414(a).16 Here, Landowners have requested a variance from the conditions in

Section 1303.34 (B) of the Zoning Ordinance that require a medical clinic in the R

3 D istrict “be established in conjunction with, part of and adjacent to an assisted

living facility, independent living facility, life care community or nursing home.”

Z ONING O RDINANCE §1303.34 (B)

. Landowners do not seek a “ reasonable

adjustment from area and space requirements ” but, rather, to use their property for a

stand

- alone medical clinic, which is prohibited by the Zoning Ordinance unless the

requirements in Section 1303.34 (B) are met. Society Created to Reduce Urban

Blight (SCRUB)

, 787 A.2d at 1126. The conditional language in Section 1303.34(B)

has nothing to do with “lot width, building area, setbacks and impervious su rface

limitations. ” Plumstead Township Board of Supervisors

, slip op. at 8. We conclude

that Landowners ’ request ed departure from the condition in Section 1303.34 (B) of

the Zoning Ordinance requires a use variance and affirm the Zoning Board’s holding

in this regard.

B. Full and Fair Opportunity to be Heard

Finally, Landowners argue that the Zoning Board denied their request

for a variance without taking any evidence. Section 1807.2(F) of the Zoning

Ordinance provides that “[t]he parties shall have the right to be represented by

counsel and shall be afforded the opportunity to respond and present evidence and

argument and cross

- examine adverse witnesses on all relevant issues.” Z ONING

O RDINANCE §180 7(2)(F). Landowners assert that they were denied the hearing

guaranteed by Section 180 7(2)(F).

Landowners filed two requests with the Zoning Board, one for an

interpretation of the Zoning Ordinance and another for a variance to develop a17

medical clinic on their p roperty. The Zoning Board held a hearing on September 6,

2017, but it did not take testimony or evidence. Rather, it stated that it would first

decide “whether the [O]rdinance needs an interpretation,” on which testimony was

not needed. Hearing Transcrip t at 31; R.R. 75a. Following the hearing, Landowners

submitted a legal memorandum, which addressed their interpretation of the Zoning

Ordinance but not their variance request. On October 4, 2017, the Zoning Board

held another hearing, where it voted to u phold the Zoning Ordinance and deny

Landowners’ request for a variance.

T he Zoning Board stated in its written decision that Landowners

appeared with counsel and “offered testimony and exhibits,” Board Decision at 3,

Findings of Fact ¶6, and they “failed to demonstrate unnecessary hardship.” I d

. at

4

, Conclusions of Law ¶8. To the contrary

, the Zoning Board did not receive an y

testimony or evidence at any point prior to denying Landowners ’ request for a

variance. This was error because Landowners are entitled to a full and fair

opportunity to present their request for a variance

, as guaranteed to them by Section

1807 of the Zoning Ordinance

.

Conclusion

For the foregoing reasons, we affirm the trial court’s holding that

Landowners did not establish that the conditions for a medical clinic in an R

- 3

D istrict set forth in Section 1303.34(B) of the Zoning Ordinance are invalid.

However, because Landowners did not have the opportunity to present evidence in

support of their variance request

, w e vacate the trial court’s decision affirming the

Zoning Board’s denial of the variance. The matter shall be remanded to the Zoning18

Board for additional hearings on the variance application using the standard for a

use variance.

________ ______________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dale DeAngelo and Lesley DeAngelo, : Appellants :

:

v. : No. 770 C.D. 2018

: North Strabane Township : Zoning Hearing Board :

O R D E R

AND NOW, this 17 th day of April , 2019, the order of the Court of

Common Pleas of Washington County , dated May 10, 2018, in the above

- captioned

matter is AFFIRMED in part and VACATED in part, and this matter is

REMANDED to the Court of Common Pleas of Washington County with

instructions to further remand to the Zoning Hearing Board of North Strabane

Tow nship for add itional proceedings to review the case using the appropriate

standard for a use variance.

Jurisdiction relinquished.

______________________________________ MARY HANNAH LEAVITT, President Judge