IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lehigh Valley Properties, Inc., :

:

Appellant :

:

 v. : No. 783 C.D. 2022

: Submitted: April 14, 2023

City of Allentown Zoning :

Hearing Board :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 4, 2024

Lehigh Valley Properties, Inc. (Landowner) appeals the order of the 

Lehigh County Court of Common Pleas (trial court), dated June 21, 2022, affirming 

the City of Allentown (City) Zoning Hearing Board’s (Board) decision denying 

Landowner’s zoning application seeking dimensional variances to construct two 

billboards. Landowner contends that the Board erred or abused its discretion by 

denying its application. Upon review, we affirm.

Landowner is the owner of 2.06 acres of vacant land located at 901 

North Ivy Street, Allentown, Pennsylvania (Property) in the General Industrial 

District (I3 District) under the City’s Zoning Ordinance (Ordinance).1 In 2018,

1 The City adopted the Ordinance on November 3, 2010, and it went into effect November 

15, 2010. 
2

Landowner filed a zoning application for the construction of two double-faced 

billboards on the Property -- one static and the other digital. Billboards are permitted 

in the I3 District, but variances were needed to comply with the Ordinance’s distance 

requirements. Specifically, Landowner proposed to place the static billboard 79 feet 

from a residential district, when the Ordinance requires at least 300 feet. Landowner 

proposed to place the digital billboard 571 feet from another off-premises digital 

billboard, which was installed by the City, when the Ordinance requires 1,000 feet. 

Section 1319.08(A)(3) of the Ordinance. The zoning application was denied.

Landowner filed an appeal with the Board. The Board conducted two 

evidentiary hearings; no objectors appeared. Based on the testimony and evidence 

presented, the Board concluded that Landowner failed to prove unnecessary 

hardship. The Board found that there was insufficient evidence that the Property 

could not be used in conformity with the Ordinance. The Board was also not 

convinced that the billboards would not be detrimental to the public welfare. By 

decision dated October 15, 2020, the Board denied the appeal as to both billboards.

Landowner appealed to the trial court, which remanded the matter to 

the Board for further proceedings. On remand, the Board conducted a third hearing, 

wherein Landowner presented the testimony of four witnesses and presented exhibits 

supporting and expanding on the evidence introduced at the prior hearings. No 

objectors or other interested parties appeared at the hearing; no evidence was offered 

in rebuttal. 

The Board incorporated its prior findings and made new findings based 

on the testimony and evidence presented. The Board found that the Property was

originally part of a four-acre contiguous tract that housed Landowner’s recycling 

business. In 2011, the City initiated eminent domain proceedings for the 
3

development of the American Parkway (Parkway). As a result of the taking, 

Landowner’s four-acre tract was bifurcated and reduced to two smaller parcels 

located on both sides of the Parkway, one of which is the subject Property. The 

eminent domain action effectively ended Landowner’s recycling business activities, 

which recycled soil, wood, and concrete. Board Op., 4/15/21, Finding of Fact (F.F.) 

Nos. 7-10.

The Property is a triangular-shaped lot bordered by the Parkway, a

Church parking lot, and the rear alley of a residential neighborhood. There are no 

structures or other improvements on the Property. The Property is severely sloped. 

Of the 2.06 acres, only .72 acres is level with the rest occupied by large mounds of 

crushed concrete and claylike soil -- remnants from Landowner’s former recycling 

business. F.F. Nos. 7, 11.

Because of these conditions, Landowner presented testimony that the 

development of the Property would be difficult and likely cost prohibitive and that 

the billboards were the highest and best use. F.F. Nos. 12-13; Reproduced Record 

(R.R.) at 145a, 148a. Steve Pany, a licensed civil engineer, testified that it was 

extremely difficult to develop the Property given its size, shape, slopes, and piles of 

crushed concrete and soil. However, he acknowledged that Landowner could sell 

the crushed concrete and soil, which would improve the level surface area and 

maximize the buildable area. R.R. at 143a-44a, 148a, 153a-60a. 

Dennis Atiyeh, Landowner’s site manager and billboard project 

manager, testified that the bifurcation created a hardship for Landowner. The 

topography and elevations rendered the Property unsuitable for the prior recycling 

operation. He testified that the “highest and best use” of the Property was the 
4

construction of the proposed billboards, but he did not explore other permitted uses. 

R.R. at 197a-98a; see id. at 200a-03a. 

The Property was not marketed by any professional commercial real 

estate marketing firm to determine public or private interest for uses permitted by 

the Ordinance. Only informal inquiries were made of neighboring property owners, 

which were unsuccessful. F.F. Nos. 14; R.R. at 148a-49a, 198a, 209a.

Landowner’s other witnesses, Brian Ritter and Peter Terry, both 

engineering experts, offered testimony that, if the variances were granted, the 

billboards would not be detrimental to the public welfare or alter the essential 

character of the neighborhood. See R.R. at 164a-93a.

The Board once again concluded that Landowner failed to meet its 

burden of proving unnecessary hardship. The Board explained that Landowner did 

not present substantial evidence that the Property could not be used for some purpose 

in conformity with the Ordinance. Additionally, Landowner offered no evidence of 

any active, prolonged, and specific testing of the Property’s marketability. The 

Board also noted that Landowner’s activities upon and use of the Property

contributed, in part, to the difficulties of developing the Property. Thus, by decision 

dated April 15, 2021, the Board denied Landowner’s appeal. 

Landowner appealed to the trial court. Without receiving additional 

evidence, by decision dated June 21, 2022, the trial court denied Landowner’s appeal 

and affirmed the Board’s decision. 

Landowner appealed to this Court.

2 Landowner contends that the 

Board erred or abused its discretion by denying its dimensional variance requests for 

2

In a land use appeal where the trial court does not take additional evidence, our review is 

limited to determining whether the zoning hearing board abused its discretion or committed an 

(Footnote continued on next page...)
5

both billboards. According to Landowner, the unrebutted evidence demonstrated 

that the Property’s topography and limited dimensions prevent development of any 

kind other than the construction of the two billboards. 

Section 910.2 of the Pennsylvania Municipalities Planning Code 

(MPC),

3 as reflected in Section 1307.03(A)(1) of the Ordinance, sets forth the 

following requirements for a variance:

(1) 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 the 

zoning ordinance in the neighborhood or district in which 

the property is located. 

(2) 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 the 

zoning ordinance and that the authorization of a variance 

is therefore necessary to enable the reasonable use of the 

property. 

(3) That such unnecessary hardship has not been created 

by the appellant. 

error of law. In re Thompson, 896 A.2d 659, 666 n.4 (Pa. Cmwlth. 2006). The zoning hearing 

board abuses its discretion when its findings of fact are not supported by substantial evidence. Id. 

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.” Id. (citations omitted). When reviewing the grant or denial of a variance, 

the Court may not substitute its interpretation of the evidence for that of the zoning hearing board. 

Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997 A.2d 

423, 441 (Pa. Cmwlth. 2010). Further, determinations regarding the credibility of witnesses, the 

weight of the evidence, and the resolution of conflicts in evidence are the exclusive province of 

the zoning hearing board. Id. 

3 Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 

1329, 53 P.S. §10910.2(a).
6

(4) 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. 

(5) 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.

53 P.S. §10910.2(a). An applicant seeking a variance bears the burden of proof. 

Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 

997 A.2d 423, 433 (Pa. Cmwlth. 2010). 

“A dimensional variance involves a request to adjust zoning regulations 

to use the property in a manner consistent with regulations, whereas a use variance 

involves a request to use property in a manner that is wholly outside zoning 

regulations.” Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 

A.3d 488, 520 (Pa. Cmwlth. 2014) (citing Hertzberg v. Zoning Board of Adjustment 

of the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998)). “The same criteria apply to 

use and dimensional variances.” Id. “However, in Hertzberg, our Supreme Court 

set forth a more relaxed standard for establishing unnecessary hardship for a 

dimensional variance, as opposed to a use variance.” Id. 

In determining whether an applicant established unnecessary hardship 

for a dimensional variance, the courts may consider multiple factors, including “the 

cost of the strict compliance with the zoning ordinance, the economic hardship that 

will result from denial of a variance, and the characteristics and conditions of the 

surrounding neighborhood.” Tri-County Landfill, 83 A.3d at 520.

“Although Hertzberg eased the requirements, it did not remove them.” 

Tri-County Landfill, 83 A.3d at 520. “An applicant must still present evidence as to 
7

each of the conditions listed in the zoning ordinance, including unnecessary 

hardship.” Id. “Where no hardship is shown, or where the asserted hardship 

amounts to a landowner’s desire to increase profitability or maximize development 

potential, the unnecessary hardship criterion required to obtain a variance is not 

satisfied even under the relaxed standard set forth in Hertzberg.” Id. (emphasis 

added). “When an applicant attempts to establish an unnecessary hardship by 

showing that the property lacks marketability if development is limited to permitted 

. . . uses, [the applicant] must present evidence of active, prolonged and specific 

testing of its marketability.” Pennsylvania Parking, Inc. v. Zoning Board of 

Adjustment, City of Philadelphia, 514 A.2d 213, 215 (Pa. Cmwlth. 1986).

Here, despite a second opportunity to present evidence in support of its 

variance request, Landowner still failed to prove unnecessary hardship. Although 

Landowner showed that the Property possesses unique physical characteristics in 

that it is a triangular-shaped lot containing steep slopes with piles of debris, R.R. at 

143a, 148a, 197a, 200a, Landowner failed to show that the Property could not be 

used for some purpose in strict conformity with the Ordinance. The Ordinance 

permits numerous other uses in the I3 District, including a commercial 

communications tower. See Section 1313.01(C) of the Ordinance. However, 

Landowner did not explore this use or any other permitted uses. See R.R. at 201a, 

203a, 209a-10a. In addition, Landowner made no attempts to market the Property 

commercially to determine if there was public or private interest in the Property for 

uses permitted by the Ordinance. Landowner only made informal inquiries with 

neighboring property owners, who were not interested. Id. at 148a-49a, 197a-98a,

209a. As Atiyeh explained, “the minute you take [the Property] off and start 

marketing it, we have to pu[t] our whole billboard project on the ice.” Id. at 209a-
8

10a. Atiyeh persisted that the billboard use was the “highest and best use” of the 

Property, to the exclusion of all other possibilities. Id. at 197a, 198a; see id. at 203a. 

Atiyeh testified, “[t]he only use for that [P]roperty . . . is two billboards, like we have 

planned.” Id. Although we recognize that the proposed billboards use may be the 

“highest and best” use of the Property, this does not satisfy the unnecessary hardship 

criterion required for a variance, even under the relaxed standard set forth in 

Hertzberg. See Tri-County Landfill, 83 A.3d at 520.

In addition, the Board found that some of the Property’s unique 

physical conditions were caused, in part, by Landowner. Both Paney and Atiyeh 

testified that the Property contains piles of crushed concrete and claylike soil left 

over from the Landowner’s former recycling business. R.R. at 153a-54a, 194a. 

Paney testified that if those materials could be sold and removed from the Property, 

Landowner could increase the level area of the Property, which would improve its 

accessibility and usability. Id. at 157a, 159a-60a. Atiyeh acknowledged that there 

is a market for the recycled concrete and dirt. Id. at 194a. However, Atiyeh testified

“until these billboards are addressed, those [debris] piles are going to sit there.” Id. 

at 204a. 

Upon review, Landowner failed to present substantial evidence that the 

unique physical circumstances or conditions of the Property prevented the Property 

from being used in conformity with the permitted uses of the Ordinance and were 

not, to some extent, self-inflicted. Thus, we conclude that the Board did not err or 

abuse its discretion in denying Landowner’s variances. 

Accordingly, we affirm the trial court’s order. 

 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lehigh Valley Properties, Inc., :

:

Appellant :

:

 v. : No. 783 C.D. 2022

: 

City of Allentown Zoning :

Hearing Board :

O R D E R

AND NOW, this 4

th day of April, 2024, the order of the Lehigh County 

Court of Common Pleas, dated June 21, 2022, is AFFIRMED. 

 

MICHAEL H. WOJCIK, Judge