IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zelienople Borough

, : Appellant :

:

v. :

: Zelienople Borough Zoning Hearing : No. 671 C.D . 201 9 Board and Thomas G. Myers : Submitt ed: May 1 5 , 2020

BEFORE: HONORABLE P. KEVIN BROBSON

, Judge

HONORABLE ANNE E. COVEY

, Judge HONORABLE BONNIE BRIGANCE LEADBETTER

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: June 23, 2020

Zelienople Borough (Borough) appeals from the Butler County Common

Pleas Court ’s (trial court) April 17, 2019 order affirming the Zelienople Borough
Zoning Hearing Board’s (ZHB) decision granting Thomas G. Myers ’ (Applicant)
application for a use variance. T he Borough pre s ents four issue s for this Court’s

review , whether the record evidence established : (1) t he r equisite u nnecessary

h ardship ; (2) t hat t he u nnecessary h ardship wa s n ot s elf

- c reated ; (3) that the use

variance would not alter the essential character of the neighborhood nor be
detrimental to the public welfare ; and (4) t hat the use variance is the minimum relief

necessary

. After review, we affirm.

On March 28, 2018, Applicant filed an application with the ZHB
requesting a use variance to construct a single

- story duplex dwelling on two vacant
parcels of property located on South Jefferson Street in the Borough (Application)

. The two l ots, 550

- S2

- BC8 (BC8) and 550

- S2

- BC9A (BC9A) ( Properties) , are currently separate parcels, but Applicant proposed to combine them into a single lot2

for purposes of effectuating the requested variance. The Properties are located in an

R

- 3 Urban Residential Zoning District (R

- 3 District) . A d uplex is neither a permitted

nor a conditional use in an R

- 3 District under the Borough Zoning Ordinance

(Ordinance)

. O n April 25, 2018, the ZHB held a public hearing, at which time the

ZHB orally voted to approve the A pplication, subject to certain conditions . A written

notice of the decision dated April 26, 2018, followed thereafter to Applicant. On
May 21, 2018, the Borough appealed from the ZHB’s de cision to the trial court. On
April 17, 2019, the trial court dismissed the Borough’s appeal. The Borough
appealed to this Court. 1

Initially, it is axiomatic that “ zoning ordinances are to be liberally
construed to allow the broadest possible use of land .” Light of Life Ministries, Inc. v.
Cross Creek Twp.

, 746 A.2d 571, 573 (Pa. 2000) (quoting Upper Salford Township v.

Collins

, 669 A.2d 335, 336 (Pa. 1995) ). Section 1502.4 of the Ordinance provides:

The [ ZHB ] may grant a [v] ariance provided the fol l owing 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 created by the provisions of the [] [O] rdinance in the neighborhood or district in which the property is located;

B. th a t because of such physical circumstances or conditions, there is no possibility that the property can be

1 “In an appeal from a court of common pleas’ order affirming a decision of a zoning hearing board , where the common pleas court takes no additional evidence , our review is li mited to considering whether the zoning hearing board abused its discretion or erred as a matter of law.” DiMattio v. Millcreek Twp. Zoning Hearing Bd. , 147 A.3d 969, 974 (Pa. Cmwlth. 2016). “The zoning hearing board abuses its discretion when it issues findings of fact that are not supported by substantial record evidence[.]” Id.3 developed in strict conformity with the provisions of the [] [O] rdinance and that the authorization [] of a [ v ] ariance is therefore necessary to enabl e the reasonable use of the property ;
[C]. th at such unnecessary hardship has not been created by the [applicant] ;

[D]. that the [v] ariance if authorized, will not alter the essential character of the neighborhood or district in which the property is locat ed, nor of adjacent property, nor be detrimental to the public welfare; and

[E]

. that the [v] ariance, if authorized, will represent the minimum [v] ariance that will afford relief and will represent the least modification possible of the regulation in issue

. In granting any [v] ariance, the [ZHB] may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the [] [O] rdinance.

Ordinance 779, as amended

, § 1502.4 (emphasis added)

.

The Bo r ough first ar gues that the record evidence is insufficient to

establish the requisite unnecessary hardship. Specifically, the Borough contends that
the record is devoid of any description of the Properties’ physical features or an
explanation of how any unique feature s might prevent Applicant from utilizing the
Properties for a use permitted under the Ordinance

, and there is insufficient record
evidence to support the finding that the Properties can conform to the permitted use

of a single

- family residence only at a pr ohibitive expense. Applicant rejoins that t he

evidence establishe s that

, due to the unique physical features of the lot s , t he only way

to make reasonable use of the P ropert ies is to consolidate the lots

, and t he Properties
cannot be reasonably used for an y of the permitted or conditionally permitted uses in

the R

- 3 D istrict

.

[The Pennsylvania Supreme] Court has repeatedly made clear that in establishing hardship, an applicant for a variance is not required to show that the property at issue is valueless wi thout the variance or that the property cannot be4 used for any permitted purpose. On several occasions, we have reversed the Commonwealth Court when it had relied on such a standard for unnecessary hardship in reversing the grant of a variance

. Showing t hat the property at issue is

‘ valueless ’ unless the requested variance is granted ‘ is but one way to reach a finding of unnecessary hardship; it is not the only factor nor the conclusive factor in resolving a variance request. ’ Rather, ‘ multiple factors a re to be taken into account when assessing whether unnecessary hardship has been established. ’

Marshall v. City of Phila. , 97 A.3d 323, 330 (Pa. 2014) (citations omitted) (quoting
Hertzberg v. Zoning Bd

. of Adjustment of the City of Pittsburgh

, 721 A.2d 4 3, 4 8 ( Pa.

1998) ). “It is the function of the [ZHB] to determine whether the evidence satisfies
the criteria for granting a variance. The [ZHB], as fact

- finder, is the sole judge of
credibility.” Marshall , 97 A.3d at 331 (citation omitted).

Here, Applicant testified:

Q Would you describe the property that’s immediately north of these two lots?
A Immediately north, now, that’s the

– Q That’s the [American] Legion parking lot, is it not?

A Yeah. Yeah. It’s a par king lot. And that’s a [Central Business District] parking lot.
Q And then just immediately south of this, it’s a

–

A There is a

– there is a rental, four

- unit or five

- unit rental building. So I’m really putting this in between the parking lot and that rental building, the yellow brick rental building.

. . . Reproduced Record (R.R.) at 32a. Applicant further related:

Q And [Applicant] , the two lots, the lot BC8 is 50 by 140. Could you reasonably put a single family home on that? In this zoning dist rict, the R

- 3 [D istrict ] , the permitted use is a single [

- ] family residence. There are conditional uses, funeral home, school

–5 A Trailer.

Q

-- mobile home park. But these lots certainly don’t fit into that character. The only thing you could really do under the [] [O] rdinance here is put a single [

- ] family home. Is it practical to put a single [

- ] family home on a 50 by 140 lot?

A Well, I mean just on the setbacks that are required now, the width of the home would be like 20 feet. You know, so

– and th e one is under 6,000 square feet. And under the

-- and under the current R

– what is it, R

- 3 [District] , the lot has to be at least 6 [,] 000 square feet to put a single [

- ] family home on it. So, they would

– . . . they would have to come back to the [ZHB] and ask for a variance both on the
set [] backs and the size of the lot. And then, you know, I don’t know what kind of a

– I mean I guess you could put a small home, [a] real small home on each one.

. . . . Q Why not just buy both lots and put one single [

- ] family home on both lots?
A Well you could do that. Somebody could do it. It’s been up [for sale] for four years and nobody’s done that. And there is a lot of cost involved. Because the cost of the lot and single [

- ] family home, you’re going to be in the $300,000[.00] range. And the question is, is somebody going to put that kind of money in that location in Zelienople . You know, and I don’t know the answer to that.

R.R. at 33a

- 34a.

The ZHB made the following relevant findings of fact:

9. Parcel BC8 is 50’ x 145’ x 49’ x 145’ or 7,154 square feet.

10. Parcel BC9 [A] is 44’ x 131’ x 44’ x 130’, or 5,720 square feet.

11. The proposed dwelling is 850 square feet per unit, or 1,700 total square feet.6 12. The cost of construction would be approx imately $340,000.00.

13. The [P]roperties are bounded on the north by an American Legion Parking Lot; on the south by a 4 or 5[

- ] unit rental property.

14. The lots have unique physical characteristics in that they are long, narrow, and irregular in sha pe.

15. In order to build on the lots, variances would need to be granted as follows:

A. Lot [BC]9A consists of 5,714 square feet and is less than the required 6,000 square feet for construction of a dwelling.

B. Lot [BC]9A only has 44 feet at the bu ilding line instead of the required 60 feet under the Ordinance.

C. Lot [BC]8 is only 50 feet at the building line instead of the required 60 feet under the Ordinance.

D. As a result of the above, the lots would also require building setback variances.

16. The authorization of a variance is necessary for the reasonable use of the [P] ropert [ies]

.

. . . .

22. The characteristics of the area where the lots are located, the variances needed for development and the length of time that the lots have bee n for sale, including the variances required for development, show that the lots either have no value, or a distressed value.

R.R. at 61a

- 62a . The ZH B determined : “ Denying the variance will render the
[P]ropert[ies] of little or no value, not capable of r easonable development, and will
cause economic hardship to [] Applicant.” 2 R.R. at 63a.

2 The Dissent contends: “Applicant failed to show that he cannot develop the larger consolidated lot in strict conformity with the zoning ordinance without suffering an unnece ssary hardship.” Zelienople Borough v. Zelienople Borough Zoning H earing Bd. (Pa. Cmwlth . No. 6717 “ We may conclude that the [ZHB] abused its discretion only if its
findings are not supported by substantial evidence, which [the Pennsylvania Supreme

Court] ha [s] defined as ‘ relevant evidence which a reasonable mind would accept as
adequate to support the conclusion reached. ’ ” Marshall , 97 A.3d at 331 ( quoting

Twp. of Exeter v. Zoning Hearing Bd

. of Exeter Twp. , 962 A.2d 653, 659 ( Pa. 2009) ).

Because the ZHB’s conclusion “was within the bounds of reason and therefore
represented a sound exercise of discretion [,]

. . . [t] here was no abuse of discretion

here. ” Marshall , 97 A.3d at 334 (quoting E

. Torresdale Civic Ass ’ n v. Zoning B d

. of
Adjustment of Phila

. Cty ., 639 A.2d 446, 447 ( Pa. 1994) ).

The Borough next argues that record evidence did not establish that the
hardship was not self

- creat ed. Specifically, the Borough contends that the hardship is
unrelated to the physical chara cteristics of the Properties ; rather, Applicant’s desire to
construct a duplex dwelling on the Properties caused the hardship

.

Based on Applicant’s above

- quoted testimony, the ZHB found as a fact:
“Applicant did not create the unnecessary hardship.” R. R. at 61a. This Court agrees.

Applicant’s desire to construct a duplex dwelling

did not create a self

- inflicted hardship forcing [Applicant]
to seek [ the] variance []

. . . . Instead, the evidence [] advanced showed that [the] variance [] w [as] sought to overcome the hardships present from the Propert [ies’] [dimensions] and location near the [ American Legion parking lot and the apartment building]

. [Applicant] explained that the natural features of the Propert [ies] prevented the construction of [a single

- family] dwelling

, and [Applicant] stated that without zoning relief, [each lot ] had only a small building envelope to construct a residence, a use that was otherwise permitted in the Propert [ies’] [R

- 3 D] istrict. It is apparent that the hardship resulted from the

n atural conditions of the Proper t [ies] rather than by

C.D. 2019, filed June 23 , 2020) (Brobson J., dissenting) , slip op. at 1. However, the above

- quoted testimony is substantial evidence supporting the ZHB’s ab ove

- quoted findings of facts establishing said hardship.8 [Applicant’s desire to construct a duplex dwelling] , and [] the [ZHB] . . . [did not ] err [] in making this determination.

Solebury Twp. v. Solebury Twp. Zoning Hearing Bd. , 914 A.2d 972, 977 (P a.
Cmwlth. 2007).

Next, the Borough asserts that Applicant did not present any evidence to

establish that the use variance would not alter the essential character of the
neighborhood nor be detrimental to the public welfare

.

To the contrary, Applicant te stified:

Q If you put a duplex there, . . . would that be consistent with the other dwellings that are in that [R

- 3 D] istrict?
A Well, I mean, it would look very similar to what’s there. Because you’d have a thousand square feet on each side with a gara ge in the front. It would just

– it would be nice. It would be nice looking. You know, right now, it’s just an empty lot. It would be as nice [] looking as the apartment building that it’s going to be right next to it [sic]. And I think, you know, the re [are] a lot of smaller homes on that street . . . . So I think it would be in line with what’s in the neighborhood now and across the street as well.

R.R. at 34a.

The ZHB found as a fact: “The variance will not chan g e t he essential

ch a racte r of the n eighborhood, nor will it impair the appropriate use or development
of adjacent properties, and it will not be detrimental to the public welfare.” R.R. at

61a. Because the record evidence reveals that the ZHB’s conclusion “was within the

bounds of reason and therefore represented a sound exercise of discretion [,]

. . . [t] here was no abuse of discretion here.” Marshall , 97 A.3d at 334 (quoting E.

Torresdale Civic Ass’n , 639 A.2d at 447) ; see also Liberties Lofts LLC v. Zoning Bd.
of Adjustment , 182 A.3d 5 13 , 537 (Pa. Cmwlth. 2018) ( holding “[n]o error is apparent
in the [zoning board of adjustment’s] determination that [a]pplicant’ s proposed use
will not adversely affect the public safety, health or general welfare and will not9

permanently injure the use o f adjacent conforming properties ”); Domeisen v. Zoning
Hearing B d. of O’Hara Twp. , 814 A.2d 851, 858 (Pa. Cmwlth. 200 3 ) (holding “[w] e

will not d isturb the [zoning hearing board’s] finding of fact, which is supported by

the record [,] ” that the variance wou ld not be detrimental to the public welfare )

.

Finally, the Borough argues that the record evidence did not establish
that the use variance is the minimum relief necessary

. This Court has explained:

[The] minimization requirement contained in both the [P ennsylvania Municipalities Planning Code 3 (]MPC[)] and the [ Ordinance] appears to pertain more to dimensional variance requests. . . . The rule of minimization has clear application in the context of a dimensional variance, because an applicant should be entitled to a modification of a dimensional zoning requirement only to the extent necessary to grant relief. Otherwise, an adjudicator or reviewing court could provide relief that goes beyond the necessity of curing an unnecessary hardship under the appli cable zoning ordinance. In the context of a use variance, the criteria other than the minimization requirement serve the purpose of placing restrictions on the exercise of a zoning board’s inherent power to exercise discretion in the granting of a varianc e

. [ 4 ]

Paganico v. Zoning Hearing Bd

. of Municipality of Penn Hills , ___ A.3d ___, _____
(Pa. Cmwlth. No. 9 C.D. 2019, filed February 24, 2020), slip op. at 6

- 7 (emphasis
omitted) (quoting S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment

, 54 A.3d 115, 124 (Pa. Cmwlth. 2012) )

. 5

3 Act of July 31, 1968, P.L. 805, as amended , 53 P.S. §§ 10101

- 11202.

4 This Court recognizes that, since the Borough has the Ordinance, the MPC is not expressly implicated. However, like Section 910.2 of the MPC, added by Sect i on 89 of the Act of December 21, 1988, P.L. 1329, No. 170

, 53 P.S. § 10910.2

, Section 1502.4 of the Ordinance begins: “The [ZHB] may grant a [v]ariance provided the following findings are made where relevant in a given

case . . . .” Ordinance 779, as amended , § 1502.4

5 S outh of S outh S treet Neighborhood Ass’n was disapproved on other grounds by Scott v. City of Philadelphia Zoning Board of Adjustment , 126 A.3d 938 (Pa. 2015).10 Nevertheless, the Paganico Court expounded : “ [A] lthough a minimum
variance is difficult to assess in use variance cases compared to dimensional variance
cases, [the applicant] has satisfied that requirement herei n.” Paganico , slip op. at 7.
The same is true in the present case. The ZHB found as a fact herein: “The variance
is the minimum variance necessary to make a reasonable use of the lot[s].” R.R. at

61a. Allowing a duplex on two lots after they are combi ned into one does not
increase the density of use over the permitted single

- family home on each of the two

lots. Since single

- family homes cannot be built on the two undersized lots, allowing
a single duplex on the larger merged lot is the minimum varianc e necessary to afford

relief. B ecause a use variance marks a qualitative rather than a quantitative departure
from an existing ordinance, Applicant’s above

- quoted testimony is sufficient to
support the ZHB ’ s conclusion that the variance granted herein was the minimum
necessary to afford relief. Paganico ; see also In re Appeal of Redeemed Christian
Church of God, Living Spring Miracle Ctr. , Inc. (Pa. Cmwlth. No. 930 C.D. 2015,

filed December 28, 2016); Oakbr ook Fire Co. No. 14 Relief Ass’ n v. City of Readi ng Zoning Hearing Bd. (Pa. Cmwlth. No. 697 C.D. 2013, filed January 8, 2014). 6

For all of the above reasons, the trial court’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

6 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
6 9.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for its persuasive value, but not as binding precedent.I N THE COMMONWEALTH COURT OF PENNSYLVANIA

Z elienople Borough, : Appellant :

:

v. :

: Zelienople Borough Zoning Hearing : No. 671 C.D. 2019 Board and Thomas G. Myers :

O R D E R

AND NOW, this 23 rd day of June , 2020

, the Butler County Common
Pleas Court’s April 17, 2019 order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zelienople Borough, : Appellant :

:

v. : No. 671 C.D. 2019

: Submitted: May 15, 2020 Zelienople Borough Zoning Hearing : Board and Thomas G. Myers :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION BY JUDGE BROBSON FILED: June 23, 2020

Thomas G. Myers (Applicant) wishes to consolidate two small and irregularly
shaped lots (Lots BC8 and BC9A) into a larger, regularly shaped lot that will span
approximately 13,000 square feet, or 1/3 of an acre. Applicant then wishes to build
a single

- story duplex on the consolidated lot, which is not permitted under the
current zoning ordinance for the R

- 3 District. Because Applicant failed to show that
he cannot develop the larger consolidated lot in strict conformity with the zoning
ordinance without suffering a n unnecessary hardship, 1 I would reverse the decision

1 In response, the majority contends that the testimony of Applicant serves as substantial evidence to refute the dissent’s position. (Maj. Op. at 6, n.2.) T he testimony the majority relies

on , however, actually supports the dissent’s position. When asked about alternative permitted uses other than a single

- family home, Applicant testified only to the feasibility of those uses on thePKB

- 2

of the Zelienople Borough Zoning Hearing Board

, granting Applicant a use variance
for the proposed consolidated lot. I, therefore, respectfully dissent.

P. KEVIN BROBSON, Judge

smaller, unconsolidated lots. (Reproduced Record (R.R.) at 33a.) With res p ect to the proposed larger consolidated lot, App licant did not testify as to all permitted uses. He only testified as to a single

- family home use. With respect to placing a single

- family home on the proposed larger consolidated lot, Applicant testified that “you could do that. Somebody could do it.” (R.R. at 34a.) Although Applicant expressed some concern about the cost and noted how, for up to fo u r years, no one had done it , he nonetheless testified that he did not “know the answer” to the question of whether someone would be willing to invest the amount of money required to erect a single

- family home on the proposed larger consolidated lot

. ( Id. ) I do not believe this testimony amounts to substantial evidence that a single

- family home, or some other permitted use under the ordinance

, cannot be bu ilt on the larger, proposed consolidated lot without unnecessary hardship.