IN THE COMMONWEALTH COURT OF PENNSYLVANIA

1825 Rt. 309 Allentown, LLC, :

Appellant :

:

v. :

:

Zoning Hearing Board of :

South Whitehall Township : No. 487 C.D. 2022

and Landston Equities, LLC : Submitted: December 4, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION 

BY JUDGE FIZZANO CANNON FILED: January 18, 2024

This matter returns following our remand for a more expansive opinion 

from the Court of Common Pleas of Lehigh County (common pleas court) 

explaining its analysis of the pertinent factors relating to a grant of zoning relief 

requested by Landston Equities, LLC (Applicant) from the Zoning Hearing Board 

(ZHB) of South Whitehall Township (Township). In an appeal by 1825 Rt. 309 

Allentown, LLC (Objector), which intervened in the action, the common pleas court

denied and dismissed Objector’s appeal from the ZHB’s decision granting 

Applicant’s request for a special exception and dimensional variances. Having now 

reviewed the common pleas court’s supplemental opinion as well as the rest of the 

record and the parties’ briefs, we affirm the common pleas court’s order.
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I. Background

Before the ZHB, Applicant appealed from the denial of a special 

exception and variances and sought zoning relief in support of its proposed 

development of a commercial property. Relevant to this appeal, Applicant sought 

dimensional variances related to the placement of the two driveway entrance points 

needed for the proposed development.

Objector opposed the requested relief. After the ZHB had completed 

the hearing process, Objector asked to have the record reopened in order to present 

expert testimony in opposition to Applicant’s requested zoning relief. The ZHB 

refused to reopen the record and granted both special exception and variance relief 

to Applicant.

Objector appealed to the common pleas court, requesting two 

alternative forms of relief. First, Objector sought reversal on the merits, arguing that 

Applicant failed to sustain its burden of proving entitlement to zoning relief. 

Reproduced Record (RR) at 45a-46a. In the alternative, Objector asked the common 

pleas court to remand the matter to the ZHB to reopen the record for additional 

testimony of Objector’s expert witness and then issue a new decision. Id.

The common pleas court accepted briefs and held oral argument but 

took no additional evidence. In its brief and argument before the common pleas 

court, Objector preserved its argument that Applicant’s evidence before the ZHB 

was insufficient to sustain its burden of proving entitlement to zoning relief. RR at 

89a-94a & 137a-40a. Objector continued to make clear that it was seeking a remand 

for additional evidence only in the event that the common pleas court determined 

Applicant’s evidence was otherwise sufficient to support the ZHB’s decision. Id.
3

The common pleas court affirmed the ZHB’s decision. Its supporting 

opinion accompanying its order, however, focused almost exclusively on Objector’s 

request to reopen the record.1 See Objector’s Br., Ex. B. The common pleas court 

posited that Objector’s request for reversal on the merits was “not based on the 

record and overlap[ped] its remand request by suggesting that additional expert 

testimony would reveal the inadequacy of Applicant’s evidence.” Id. at 4. 

According to the common pleas court, Objector had not argued that Applicant failed 

to meet its burden of proof. Id. As a result, the common pleas court offered no 

analysis of the merits beyond bare statements that the ZHB analyzed all the elements 

required for zoning relief and that its conclusions were supported by substantial 

evidence. Id. at 4-5.

On appeal, unlike the common pleas court, we concluded that Objector 

had preserved its challenge to the sufficiency of the evidence. Accordingly, we 

directed the common pleas court to provide a supplemental opinion analyzing the 

applicable factors required for a special exception and dimensional variances and 

applying those factors to the evidence presented in the case.2

1 We observe that, on appeal before this Court, Objector has not renewed in its brief any 

argument that the ZHB should have reopened the record. See generally Objector’s Br. 

Accordingly, that argument is waived and we will not consider it. See Dobson Park Mgmt., LLC 

v. Prop. Mgmt., Inc., 203 A.3d 1134, 1139 (Pa. Cmwlth. 2019).

2 Where, as here, the common pleas court has not taken additional evidence in a zoning 

appeal, this Court reviews the ZHB’s decision for an error of law or a manifest abuse of discretion; 

such an abuse of discretion occurs only where the ZHB’s findings are not supported by substantial 

evidence. Artisan Constr. Grp., LLC v. Zoning Hearing Bd. of Upper Pottsgrove Twp., 275 A.3d 

80, 84 n.5 (Pa. Cmwlth. 2022). Further, the ZHB’s findings are owed deference, especially as to 

whether a variance applicant satisfied the unnecessary hardship criterion, in light of the ZHB’s 

expertise and knowledge regarding local conditions. Marshall v. City of Phila., 97 A.3d 323, 333 

(Pa. 2014); Azoulay v. Phila. Zoning Bd. of Adjustment, 194 A.3d 241, 249 (Pa. Cmwlth. 2018) 
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II. Discussion

A. Special Exception

The Township’s zoning ordinance provides for special exceptions “in 

particular areas . . . after review, public hearing, and approval by the [ZHB].” S. 

WHITEHALL TWP., PA., CODE § 350-05(d) (2017). There is no dispute that 

Applicant’s proposed development, a Wawa convenience market, is a motor vehicle 

service facility as defined in the Township’s zoning ordinance and, as such, is 

permitted by special exception in the Township’s zoning district where the property 

at issue is located. See id., § 350-48(m)(9)(A) & (C). A special exception is allowed, 

“absent a showing of a detrimental effect on the community,” provided that the 

requisite standards are met. Tower Access Grp., LLC v. S. Union Twp. Zoning 

Hearing Bd., 192 A.3d 291, 300 (Pa. Cmwlth. 2018). Thus, an applicant bears the 

initial burden of showing that its proposed development meets the specified criteria 

for a special exception. Id. Once that showing is made, the burden shifts to an 

objector to show that a detrimental effect will result from the proposed development. 

Id.

Here, the zoning ordinance expressly requires conformity with all 

applicable ordinance requirements in order to qualify for a special exception. S. 

WHITEHALL TWP., PA., CODE § 350-16(d)(1)(d) (2017). Objector observes that 

variances are required in order to allow the driveway placement as proposed by 

Applicant and, thus, to render the proposed development compliant with the 

(stating that “[a]n administrative agency’s interpretation of the statute it is charged to administer 

is entitled to deference on appellate review absent fraud, bad faith, abuse of discretion or clearly 

arbitrary action”); Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 9 (Pa. Cmwlth. 

2015).
5

ordinance’s requirements. Objector asserts that the ZHB should have denied the 

variances, as discussed in the next section. Therefore, Objector reasons that because 

Applicant was not entitled to the variances, it had no way to comply fully with all 

ordinance requirements in order to qualify for a special exception.

By definition, where a variance is needed for a particular use, that use 

cannot be deemed to comply with the applicable zoning ordinance in the absence of 

the variance. Here, Objector offers no separate reason why Applicant has failed to 

show that it qualifies for a special exception; nor does Objector argue that the 

proposed development will have any detrimental effect. Therefore, Objector’s 

challenge to the ZHB’s grant of a special exception depends wholly on its related 

challenge to the grant of dimensional variances. Because, as discussed in the next 

section, we reject Objector’s challenge to the variances, we likewise reject its 

challenge to the special exception.

B. Dimensional Variances

The Pennsylvania Municipalities Planning Code (MPC)3sets forth the 

standards for granting a variance request. Section 910.2(a) of the MPC, added by 

the Act of December 21, 1988, P.L. 1329, provides:

(a) The [zoning] board shall hear requests for variances 

where it is alleged that the provisions of the zoning 

ordinance inflict unnecessary hardship upon the applicant. 

The [zoning] board may by rule prescribe the form of 

application and may require preliminary application to the 

zoning officer. The [zoning] board may grant a variance, 

provided that all of the following findings are made where 

relevant in a given case:

3 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
6

(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 [applicant].

(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). The same criteria apply whether the applicant seeks a use 

variance or a dimensional variance, but our Supreme Court has held that in 

considering whether the applicant has established the requisite hardship for a 

dimensional variance, “courts may consider multiple factors, including the economic 

detriment to the applicant if the variance was denied, the financial hardship created 

by any work necessary to bring the building into strict compliance with the zoning 
7

requirements and the characteristics of the surrounding neighborhood.” Hertzberg 

v. Zoning Bd. of Adjustment of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998). 

Here, Applicant has requested two dimensional variances. The 

Township’s zoning ordinance requires a minimum distance of 300 feet between the 

centerline of the development’s driveway and the centerline of the intersections of 

any adjacent roads. See S. WHITEHALL TWP., PA.,CODE § 350-42(d)(4)(B)(i) (2017). 

However, because of the property’s dimensions and its location adjacent to three 

roads, the centerline of the proposed driveway would be located 249 feet from the 

centerline of the intersection of Pennsylvania Route 309 and Chapmans Road and 

174 feet from the centerline of the intersection of Chapmans Road and Grammes 

Road.

As we have explained,

this Court may not substitute its interpretation of the 

evidence for that of the ZHB . . . . It is the function of a 

ZHB to weigh the evidence before it . . . . The ZHB is the 

sole judge of the credibility of witnesses and the weight 

afforded their testimony . . . . Assuming the record 

contains substantial evidence, we are bound by the ZHB’s 

findings that result from resolutions of credibility and 

conflicting testimony rather than a capricious disregard of 

evidence . . . . A ZHB is free to reject even uncontradicted 

testimony it finds lacking in credibility.

Davis-Haas v. Exeter Twp. Zoning Hearing Bd., 166 A.3d 527, 545 (Pa. Cmwlth. 

2017) (citing Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. 

Cmwlth. 2005)). Objector maintains that the ZHB failed to make sufficient express 

findings supported by substantial evidence in support of its decision to grant the 

special exception and variances. The common pleas court disagreed, as do we. 
8

Citing specific portions of the ZHB hearing transcript, the common 

pleas court pointed to testimony that, regardless of where the driveway would be 

located on the property, it could not be made to conform to the minimum separation 

distance requirements of the Township’s zoning ordinance. See Original Record 

(O.R.) at 276-77, 287 & 298 (Notes of Testimony (N.T.) 11/22/21 at 29-30, 40 & 

51). The common pleas court also posited that the property’s dimensions and 

location constitute unique physical circumstances or conditions that are peculiar to 

the property, create an unnecessary hardship, were not created by Applicant, and 

prevent development of the property in strict conformance with the Township’s 

zoning ordinance. Accordingly, the common pleas court agreed with the ZHB that 

Applicant satisfied the MPC’s hardship criteria for variance relief.

Next, the common pleas court cited record evidence that the 

dimensional variances will not impede appropriate business or commercial use or 

development of nearby properties, alter the character of the area, or create a 

detriment to the public health, safety, or welfare. See O.R. at 269 & 317-18 (N.T. 

11/22/21 at 22 & 70-71). The common pleas court also pointed to record testimony 

by Applicant’s expert witness, a traffic engineer, that the proposed full access 

driveway on the property is necessary and will be beneficial to traffic circulation and 

safety. See O.R. at 286-87 & 302 (N.T. 11/22/21 at 39-40 & 55). Thus, the common 

pleas court concluded there had been no showing that the requested variances would 

be contrary to the public interest.

Finally, the common pleas court acknowledged record evidence that the 

requested variances represented the minimum reduction in separation distance that 

would afford relief, and thus, the minimum possible modification of the 
9

requirements of the Township’s zoning ordinance. See O.R. at 277-78 & 298 (N.T. 

11/22/21 at 30-31 & 51). 

In summary, the common pleas court was satisfied that the record 

contains substantial evidence in support of the ZHB’s decision. We agree. 

Therefore, we affirm the common pleas court’s order denying and dismissing 

Objector’s appeal from the ZHB’s decision.

III. Conclusion

Based on the foregoing discussion, we affirm the common pleas court’s 

order.

___________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

1825 Rt. 309 Allentown, LLC, :

Appellant :

:

v. :

:

Zoning Hearing Board of :

South Whitehall Township : No. 487 C.D. 2022

and Landston Equities, LLC :

O R D E R

AND NOW, this 18th day of January 2024, the order of the Court of 

Common Pleas of Lehigh County, dated April 12, 2022, and entered upon the docket 

on April 13, 2022, is AFFIRMED.

___________________________________

CHRISTINE FIZZANO CANNON, Judge