IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Paganico and Trona Paganico, :

Appellants :

:

v. :

:

Zoning Hearing Board of the : No. 9 C.D. 2019

Municipality of Penn Hills : Submitted: August 30, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY 

JUDGE COVEY1 FILED: February 24, 2020

Robert and Trona Paganico (Objectors) appeal from the Allegheny 

County Common Pleas Court’s (trial court) December 4, 2018 order affirming the 

Zoning Hearing Board of the Municipality of Penn Hills’ (ZHB) decision granting 

Veterans Place of Washington Boulevard (Veterans Place) a use variance. The sole 

issue before this Court is whether the ZHB properly granted Veterans Place a use 

variance. After review, we affirm.

Veterans Place owns a triangular, approximately 3.7-acre parcel of 

vacant land, zoned R-1 residential, on Jefferson Road in Penn Hills (lot and block 

#539-N-172) (Property). The Property was a former sewage treatment facility, which

is now a fill area. The Property has a 20- to 30-foot-wide sewer easement running 

through its center. It has varying topography that includes flat areas, sharp inclines

and declines, and is covered with poorly compacted fill materials. 

On February 28, 2018, Veterans Place’s Executive Director Marlon

Ferguson (Ferguson) filed a use variance application with Penn Hills’ Code 

 

1 This matter was reassigned to the author on January 31, 2020.
2

Enforcement Department. In his request, Ferguson sought permission on behalf of 

Veterans Place to renovate the Property to serve homeless veterans transitioning from 

homelessness to permanent residency. He specifically proposed to build a group care 

facility and 14 micro homes on the Property. Each micro home would provide 

approximately 500 square feet of living space for an individual veteran. A private 

drive servicing all homes would be accessible via Jefferson Road. The group care 

facility would consist of a 2-story, 7,000-square-foot building built on a slab, where 

Veterans Place would host events and outreach functions for the community, veterans 

associations and others as part of Veterans Place’s mission. 

On April 25, 2018, the ZHB held a hearing and voted unanimously in 

favor of granting Veterans Place’s use variance application. On April 30, 2018, the 

ZHB issued its decision granting the use variance conditioned upon the planning 

commission’s site plan approval. On May 25, 2018, Objectors appealed from the 

ZHB’s decision to the trial court. On December 4, 2018, the trial court affirmed the 

ZHB’s decision. Objectors appealed to this Court.2

Initially, Section 15.11(C) of the Penn Hills Ordinance (Ordinance)

provides, in pertinent part:

No variance shall be granted unless the [ZHB] determines 

and fully describes in its findings, the following:

(1) That there are unique physical circumstances or 

conditions, including irregularity, 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, 

 

2

“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 limited 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

in the neighborhood or district in which the property is

locate[d].

(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 this 

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 app[licant].

(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.

Ordinance § 15.11.C.3

Objectors argue that Veterans Place has not satisfied the second 

(property cannot be developed) and fifth (minimum variance) requirements for a use 

variance. With respect to the second requirement, Objectors contend that the 

Property could be used for the construction of a single-family residence in accordance 

with the Ordinance. Veterans Place rejoins that it demonstrated that uses otherwise 

permitted by the Ordinance are not possible due to the unique features of the 

 

3 Objectors, the trial court, and Veterans Place all claim that the applicable requirements are

set forth in Section 910.2(a) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 

805, as amended, added by Section 2 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 

10910.2(a). See Objectors’ Am. Br. at 8-9; Trial Ct. Op. at 2-3; Veterans Place Br. at 15-16. 

However, this assertion is incorrect, as Penn Hills has enacted its own zoning ordinance. See Penn

Hills Zoning Ordinance (2004), as amended, available at

http://pennhills.org/wpcontent/uploads/2017/10/Penn-Hills-Zoning-Ordinance.pdf (last visited

February 20, 2020). For reasons unknown, the trial court record contains an incomplete version of 

the Ordinance, which omits Section 15.11(C) of the Ordinance. See Original Record at 53-72.
4

Property, or would only be possible at a prohibitive expense, which is the proper 

standard for a use variance.

[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 without the variance or that the property cannot be 

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 that 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 are 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 43, 48 (Pa. 

1998)).

Here, Veterans Place’s expert engineer, David Heath (Heath) testified:

Q. What do you see as the main challenge for any attempt 

to develop this particular [P]roperty?

A. Well, there’s [sic] several site challenges when it comes 

to development. As discussed previously, the site or the 

[P]roperty itself is triangular in shape and it - essentially, a 

valley from the one point of the triangle towards the

hypotenuse, which runs stream [sic]. It also has steep 

slopes on the opposite side of this proposed development 

that go to the adjacent street. There’s [sic] also streams that 

come down from that street, drainage that enter there. 

Also, some of the soils --- fill site has a bad name, but this 

was not properly --- the fill was not properly compacted, 

there was no oversight. So the material that we encountered 

is very large construction materials in terms of concrete, 

paving experiencing voids.
5

Q. Are there any economic challenges to developing this 

[P]roperty in accordance with the uses allowed under the 

[O]rdinance?

A. Well, this type of fill is problematic, and a little excerpt 

from our geo-technical investigation; we did some test 

moorings just January 23rd of this year for the micro homes 

site. We experienced [9] to 32 feet of fill, varying 

compressibility, without undercut and backfill seem to 

provide a more mutual variant subgrades with the potential 

for detrimental differential foundation and force that floor 

slab settlement to exist. Such settlements could result in 

cracking foundations, walls, uneven floors, out of plum trim

and finishes. The cost of the undercut and backfill [] for a 

single family dwelling, would be disproportionate

compared to the proposed community center.

Supplemental Reproduced Record (S.R.R.) at 146b-148b. Heath expounded:

Q. So I would ask you to please go through each of these 

uses and explain why they’re either not possible, due to the 

physical nature of the [P]roperty, or they’re not possible 

because conforming into a use would be cost prohibitive?

A. Okay. First permitted use; single[-]family residence. 

Based on the fill of the --- that I previously discussed, the 

burden of over excavation render [] significant[] site costs 

to an individual home. It would also be prohibitive the way 

the [sewer easement] is run, it’s running through the 

property, it renders very little developmentable [sic] 

property for a home.

So that’s where it would stand with [a] single[-]family

[home].

S.R.R. at 150b.

The ZHB determined:

Heath[] reviewed the other legal uses of the land and

concluded that none of the other uses could be developed in 

compliance with the [Ordinance].

The [ZHB] found his testimony competent and credible. 

Residential uses were not possible because of the expense 

of correcting the improper placement of fill on the site and 
6

because there is [a] sewer easement through the center of 

the [P]roperty, the same problem applies to other residential 

uses.

ZHB Dec. at 3. Accordingly, the ZHB’s conclusion that the Property could not be 

developed in accordance with the Ordinance due to the Property’s physical 

circumstances or conditions is supported by substantial evidence.

Concerning the fifth requirement, Objectors contend that substantial 

evidence does not support the ZHB’s conclusion that the use variance is the minimum 

variance necessary to afford relief and represents the least modification possible of 

the Ordinance.

With respect to whether a use variance is the minimum variance 

necessary to afford relief, this Court has explained:

[W]e will address the [] argument that the trial court erred 

in affirming the [zoning board of adjustment’s (ZBA)] grant 

of the variance because the [applicant] did not request the 

minimum variance necessary. The [objector] contends that 

the variance that the ZBA granted improperly exceeds the 

minimum variance necessary to afford relief to [the 

applicant]. We note, however, that this minimization 

requirement contained in both the [Pennsylvania 

Municipalities Planning Code4(] MPC[)] and the 

[Philadelphia] Zoning Code 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 applicable 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 

 

4 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
7

zoning board’s inherent power to exercise discretion in 

the granting of a variance.

[5]

S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 124 

(Pa. Cmwlth. 2012) (emphasis added);6see also Liberties Lofts LLC v. Zoning Bd. of 

Adjustment, 182 A.3d 513 (Pa. Cmwlth. 2018); In re Appeal of Redeemed Christian 

Church of God, Living Spring Miracle Ctr. (Pa. Cmwlth. No. 930 C.D. 2015, filed 

December 28, 2016); Oakbrook Fire Co. No. 14 Relief Ass’n v. City of Reading 

Zoning Hearing Bd. (Pa. Cmwlth. No. 697 C.D. 2013, filed January 8, 2014).7

This Court recognizes that the present case does not involve the MPC or 

the Philadelphia Zoning Code. However, the same rationale applies herein because 

the instant matter involves a use variance wherein the ZHB determined that Veterans 

Place established the other four variance requirements, i.e., unique physical 

circumstances or conditions, which prevent development of the property in strict 

conformity with the ordinance, the hardship was not self-created, and the variance 

will not alter the essential character of the neighborhood. As our Court has 

consistently recognized, these criteria serve to restrict the ZHB’s inherent power to 

exercise discretion in granting variances. The Court is not holding that the minimum 

variance necessary is not relevant, or does not apply; rather, that although a minimum 

variance is difficult to assess in use variance cases compared to dimensional variance 

cases, Veterans Place has satisfied that requirement herein. 

 

 

5 Here, the ZHB determined, and this Court agrees, that Veterans Place met the unnecessary 

hardship criteria for a use variance. 

6 Disapproved on other grounds by Scott v. City of Philadelphia Zoning Board of 

Adjustment, 126 A.3d 938 (Pa. 2015).

7 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(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.
8

Here, Ferguson expressly declared:

Q. The fifth and final factor [is], if authorized, will this use 

variance represent the minimum variance that will afford

relief to represent the least modification possible under the

[Ordinance]?

A. Yes.

Q. Are you asking for anything that’s significantly different 

from what is already available under the [O]rdinance?

A. No.

. . . . 

Q. I’m going to hand you [. . .] this is [S]ection five of 

[Ordinance]. If you flip to page 47 almost to the back. At 

the top, for an R-1 zoning district, there are a number of

conditional uses that are listed. Is it true that these 

conditional uses contemplate community involvement?

A. Yes.

Q. Could you give me some examples directly from the

[O]rdinance?

A. Permission to use as church or rectory, cemetery, 

mausoleum, community facilities (non-profit), public or

private recreational facilities, forestry, funeral homes,

telecommunication towers, facility buildings, schools, 

offices, nurseries, public utilities and public services, senior 

center, senior citizen housing, planned unit residential 

developments.

Q. So the project - so these projects that are authorized by 

the [O]rdinance, contemplate community involvement.

Correct?

A. Yes.

Q. Is the project that you proposed here, do you anticipate 

that it will be less of an impact than some of these

conditional uses that are already in the [O]rdinance?

A. Yes.
9

Q. Could you provide an example?

A. Like for instance, churches.

With churches you have a large parking lot, a lot of activity. 

We won’t have those types of activities at our resource 

center.

S.R.R. at 138b-141b. Because a use variance marks a qualitative rather than a 

quantitative departure from an existing ordinance, the above-quoted testimony is 

sufficient to support the ZHB’s conclusion that the variance granted herein was the 

minimum necessary to afford relief.

8

 See Redeemed Christian Church; Oakbrook.

The Redeemed Christian Church Court acknowledged the South of South 

Street Court’s holding that “the question of whether [the a]ppellant has asked for the 

minimum variance necessary to provide relief is difficult to assess compared to 

dimensional variance cases, but [] conclude[d] that to the extent such a requirement is 

present, [the a]ppellant ha[d] satisfied it.” Redeemed Christian Church, slip op. at 18 

n.7. Specifically, the Redeemed Christian Church Court concluded:

The proposed educational, training and religious uses would 

require modifications only to approximately half of the 

interior of the [b]uilding and only to that portion of the

[b]uilding that [the a]ppellant was unable to use as office 

space and that represented the hardship. The proposed 

uses, particularly the training and educational functions 

of the [b]uilding, are also substantially similar to 

permitted commercial uses and therefore have a 

minimal impact on the use of neighboring property 

owners and the health of the [Business Park] District as 

a whole. 

 

8 The Concurrence/Dissent states: “In my opinion, [] Ferguson’s bald, unsupported 

comments fall woefully short of constituting substantial evidence.” Paganico v. Zoning Hearing 

Bd. of Municipality of Penn Hills, ___ A.3d ___, ___ (Ceisler J., concurring/dissenting), slip op. at 

2. However, “[s]ubstantial evidence is such relevant evidence that a reasonable mind might accept 

as adequate to support a conclusion.” DiMattio, 147 A.3d at 974 (quoting Eichlin v. Zoning 

Hearing Bd. of New Hope Borough, 671 A.2d 1173, 1175 (Pa. Cmwlth. 1996)). Clearly, the abovequoted testimony fits within that definition.
10

Slip op. at 17-18 (emphasis added). Likewise here, the proposed use, particularly the 

group care facility, is substantially similar to the permitted uses of, inter alia, a 

church or non-profit community facility and “therefore ha[s] a minimal impact on the 

use of neighboring property.” Id. 

Similarly, in Oakbrook, this Court found that, under the MPC, the 

minimization requirement is not relevant in use variance cases. However, the 

Oakbrook Court opined that, if it was relevant and applicable, the fact that “the 

property and structure cannot be used for permitted residential purposes or for 

modern firefighting purposes; and the proposed use will be less intense than the 

neighboring [a]ssociation social quarters because fewer patrons can be served at

the proposed brew pub and there is on-site parking[,]” “support the conclusion that 

the minimization requirement . . . is satisfied.” Slip op. at 11 n.8 (emphasis added).

Here, the ZHB stated:

Residential uses were not possible . . . , the same problem 

applies to other residential uses. Conditional uses are not 

possible consistent with the [Ordinance]. . . . The same 

problems apply to special exceptions such as funeral 

home[s] or Planned Residential Developments. Senior 

Citizen housing is not economically feasible. . . . 

A traffic study was presented by [] Heath that established 

that the development will have a negligible effect on the 

area. This conclusion was well supported by the traffic 

study.

The proposed use of [the P]roperty is essentially residential. 

The only non-residential aspect of this use is the group care 

building, but this use is generally consistent with the

residential character of the neighborhood.

ZHB Dec. at 3. Accordingly, the ZHB’s conclusion that the granted variance was the 

minimum variance necessary to afford relief is supported by substantial evidence.
11

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

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Paganico and Trona Paganico, :

Appellants :

:

v. :

:

Zoning Hearing Board of the : No. 9 C.D. 2019

Municipality of Penn Hills :

O R D E R

AND NOW, this 24th day of February, 2020, the Allegheny County 

Common Pleas Court’s December 4, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Paganico and Trona Paganico, :

Appellants :

:

v. : No. 9 C.D. 2019

: SUBMITTED: August 30, 2019

Zoning Hearing Board of the :

Municipality of Penn Hills :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION

BY JUDGE CEISLER FILED: February 24, 2020

I concur with the majority that substantial evidence supports the Zoning 

Hearing Board of the Municipality of Penn Hills’ (Board) finding that Veterans 

Place of Washington Boulevard’s (Veterans Place) property could not be used in a 

manner which complies with Penn Hills’ Zoning Ordinance. However, I cannot join 

with the majority in full, as I respectfully submit that substantial evidence does not 

support the Board’s finding that Veterans Place’s desired use variance is the 

minimum variance necessary to afford relief.

The Penn Hills Zoning Ordinance clearly tasks the Board with making a 

specific determination as to whether, and why, a desired use variance provides the 

minimum relief necessary to enable development. See PENN HILLS, PA., ZONING 

ORDINANCE § 15.11.C (2004). Though the Board did make such a determination 

here, this conclusion is simply not supported by substantial record evidence. While 

Marlon Ferguson, Veterans Place’s executive director, did briefly address the 

minimum variance issue, his testimony on this point is vague and conclusory. Mr. 
EC - 2

Ferguson was asked whether his organization was seeking the minimum variance 

necessary to afford relief. Without explanation, Mr. Ferguson, simply replied, “Yes.” 

Board Hrg. Tr., 4/25/18, at 25. Shortly thereafter, Mr. Ferguson was asked whether 

the proposed use, i.e., the group facility and micro homes, would be less intense than 

the multitude of conditional uses permitted in the Zoning Ordinance, to which he 

again merely replied, “Yes.” Id. at 27. When prodded to give an example of how this 

proposed use would be comparatively less intense than an authorized conditional 

use, Mr. Ferguson stated that a church would host certain, unspecified “activities” 

that would not occur at the proposed group facility and micro homes. Id. at 27-28. 

In my opinion, Mr. Ferguson’s bald, unsupported comments fall woefully short of 

constituting substantial evidence.

There is no doubt that Veterans Place’s mission is noble and that our veterans 

absolutely deserve assistance with reintegration into civilian life. However, I find

the majority’s holding sets the evidentiary bar far too low, which has the practical 

effect of nearly obliterating the Penn Hills Zoning Ordinance’s minimum relief

requirement in the context of use variances. I therefore respectfully dissent in part, 

out of concern that the majority’s holding in this situation will be cited to similar 

effect in future cases, thereby improperly relaxing the heavy burden placed upon use 

variance applicants in other analogous matters.

ELLEN CEISLER, Judge