Opinion
No. 1415 C.D. 2012
05-22-2013
Luis and Araceli Cruz, Appellants v. Bensalem Township Zoning Hearing Board
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Appellants Luis and Araceli Cruz (Applicants) appeal from an order of the Bucks County Court of Common Pleas that affirmed the Bensalem Township Zoning Hearing Board's (ZHB) denial of dimensional variances from the requirements of the Bensalem Township Zoning Ordinance (Zoning Ordinance). We affirm.
Applicants own property at 2568 Street Road, Bensalem, Pennsylvania (the Property), located at the corner of Street Road and Castle Drive. The Property is zoned as "G-C," general commercial, and contains a pre-existing, detached, single-family residence. (ZHB Decision Findings of Fact (F.F.) ¶¶ 3, 6, Reproduced Record (R.R.) at 128a-129a.) Although the residential use is no longer available to Applicants, a wide variety of commercial uses are permitted in this general commercial district, including professional offices, child, adult and senior day care, and personal service shops, as well as stores and take-out and sit-down non-drive-thru restaurants. (Zoning Ordinance §§ 232-380, 232-434.) The neighboring and nearby properties along Street Road are also zoned as general commercial. However, the lot behind the subject Property and those along Castle Drive are residential. The Property is 120 by 120 feet, for a total area of 14,400 square feet. (ZHB Decision F.F. ¶6, R.R. at 129a; Aug. 4, 2011 Hearing Transcript (Aug. 4, 2011 H.T.), R.R. at 20a.)
Section 232-587 of the Zoning Ordinance provides that all properties "on which a building is ... used for commercial ... purposes ... or for any use involving the receipt or distribution of material or merchandise" must have a truck loading and unloading space of at least 12 by 65 feet, in addition to space to accommodate all turning and maneuvering. (Zoning Ordinance § 232-587, R.R. at 100a.) Access to the loading space must not be directly from a public street and the loading space may not overlap with, and must be measured in addition to, mandatory off-street parking spaces and parking lot drive aisles. (Id.)
Section 232-593 requires a 75-foot buffer yard between a commercial district and an adjacent residential property, which may not overlap with, and must be measured in addition to, the 20-foot buffer yard and planting strip required by Section 232-592 of the Zoning Ordinance. (Zoning Ordinance §§ 232-382, 232-593, R.R. at 95a, 100a; Zoning Ordinance § 232-592(1), (2).) In addition to these requirements, Section 232-586 of the Zoning Ordinance requires that off-street parking spaces must be provided outside the buffer areas, with a 24-foot wide drive aisle to accommodate two-way traffic in the parking lot. (Zoning Ordinance § 232-586 (a), (b), (c)(3), R.R. at 96a-97a.) The number of off-street parking places varies depending on the use of the property, and a greater number of parking places is required for some commercial uses than for others. (Zoning Ordinance § 232-586(c), R.R. at 97a-100a.)
On July 12, 2011, Applicants submitted an application to the ZHB seeking dimensional variances from Sections 232-587 and 232-593 of the Zoning Ordinance. Applicants intend to operate a delicatessen at the Property and there is no dispute that a deli is a permitted use in a general commercial zoning district. The variances sought by Applicants would completely eliminate both the 75-foot buffer yard and the loading space. Applicants sought no variance from the parking requirements or the 20-foot buffer yard requirement, although it is not clear that Applicants' Zoning Permit Plan is in compliance with those provisions of the Zoning Ordinance. Applicants' Zoning Permit Plan shows that the proposed building and customer parking spaces are outside the minimum 20-foot buffer yard, but that a portion of the parking lot and the separate employee parking spaces encroach the 20-foot buffer and that most of the parking lot drive aisle is less than the minimum 25 feet from an abutting property line provided by Section 232-586(d)(3)(b) of the Zoning Ordinance. (Applicants' Exhibit A-6, R.R. at 118a-119a, 123a; Zoning Ordinance § 232-586(d)(3)(b), R.R. at 100a; Zoning Ordinance § 232-592(1), (2).) There was also a dispute in the ZHB hearings as to whether the deli was subject to the parking requirements for "[s]trip shopping center and including retail stores," which Applicants' proposed seven parking places meet, or whether it was subject to the significantly higher parking space requirements for convenience stores or restaurants, which Applicants' Zoning Permit Plan does not satisfy. (Zoning Ordinance § 232-586(c), R.R. at 98a, 99a; Aug. 4, 2011 H.T., R.R. at 26a-30a; Sept. 1, 2011 Hearing Transcript (Sept. 1, 2011 H.T.), R.R. at 68a.) The ZHB did not, however, resolve this issue.
Prior to the instant application for variances, Applicants had applied in 2010 for variances for a grocery store on the Property. (Aug. 4, 2011 H.T., R.R. at 10a; 2010 ZHB Decision, R.R. at 109a-113a.) The ZHB denied that application, and that denial was still on appeal at the time the Court of Common Pleas ruled in this case. (2010 ZHB Decision, R.R. at 109a-113a; Court of Common Pleas Opinion (Court of Common Pleas Op.) at 1 n.1.) Following that denial, Applicants, their attorney, and the licensed engineer who drew up the plans for both projects, met with Township officials and redesigned the project to reduce the number of variances needed. (Aug. 4, 2011 H.T., R.R. at 17a-19a.) The new plans for the deli used the existing, non-conforming structure on the Property and reduced the building size from 1,840 square feet to 1,140 square feet. (Aug. 4, 2011 H.T., R.R. at 10a-11a, 20a.)
There is no information in the record as to the current status or outcome of that appeal.
The ZHB conducted hearings on August 4, 2011 and September 1, 2011. At the August 4, 2011 hearing, Mr. Cruz testified that he and his wife operate four grocery stores and a restaurant in Lower Bucks County, in Bensalem, Warminster, and Bristol. (Aug. 4, 2011 H.T., R.R. at 10a.) While Mr. Cruz testified that he could not reduce the size of the building any further and still operate a deli as a profitable business (Aug. 4, 2011 H.T. , R.R. at 11a), he gave no explanation of why this was the minimum size or what the necessary volume of business was and how that related to building size. No testimony or evidence was introduced as to whether other types of businesses could be profitably operated on the Property with less encroachment on the 75-foot buffer or a reduced size loading space. Mr. Cruz testified that he would make deliveries to the deli twice per week during its operating hours, using a 12-foot box truck that would fit into a normal sized parking space. (Aug. 4, 2011 H.T., R.R. at 12a-13a.)
Applicants' licensed engineer, Mr. Fiorvanti, testified that because of the Property's small size, it was impossible to have any commercial building or to conduct any commercial business on the Property without some relief from the Zoning Ordinance's buffer setback requirements and loading area requirement. (Aug. 4, 2011 H.T., R.R. at 19a-22a.) He testified that compliance with the 75-foot buffer yard adjacent to residential property would prohibit the required parking on the Property. (Aug. 4, 2011 H.T., R.R. at 20a.) Mr. Fiorvanti testified that the required loading space of at least 12 by 65 feet was designed to fit a tractor-trailer and that a loading space of that size would make it impossible to comply with the Zoning Ordinance's parking requirements. (Aug. 4, 2011 H.T., R.R. at 21a-22a.) He also displayed an exhibit showing an aerial image of the Property and nearby properties along Street Road that are used as professional office space, explaining that none of those properties are in compliance with the 75-foot buffer yard and loading zone requirements. (Aug. 4, 2011 H.T., R.R. at 23a-25a.) Mr. Fiorvanti, however, did not testify that other commercial uses would require variances as great as the variances that Applicants sought, the complete elimination of the 75-foot buffer yard and the complete elimination of any loading space.
Two neighbors, including the owner of the home adjacent to the Property, testified that the deli would negatively affect them, expressing concerns about the proposed driveway close to the property line and automobile traffic and trash from the deli. (Aug. 4, 2011 H.T., R.R. at 43a-45a, 52a-54a, 57a-59a.) Several residents of Bensalem who do not live near the Property appeared at the hearing in support of Applicants and testified that Applicants' proposed deli was desirable and that Applicants operate nice businesses. (Aug. 4, 2011 H.T., R.R. at 46a-52a, 54a-56a.)
At the September 1, 2011 hearing, Applicants' attorney placed on the record conditions to which Applicants agreed regarding the operation of the proposed deli if the variances were granted, but no further testimony or evidence was submitted. (Sept. 1, 2011 H.T., R.R. at 66a-67a.) After discussion, the ZHB voted unanimously to deny both variances. (Sept. 1, 2011 H.T., R.R. at 68a-70a.) In its decision, the ZHB found that any commercial use of the Property will require some dimensional variances from Section 232-587 and Section 232-593 of the Zoning Ordinance. (ZHB Decision Conclusions of Law (C.L.) ¶¶1-2, R.R. at 131a.) The ZHB found, however, that "the relief requested by Appellants is not the minimum remedy that will afford relief" and that "[t]he requested relief does not represent the least modification possible of the regulations at issue." (ZHB C.L. ¶¶3-4, R.R. at 131a.) The ZHB further found that Applicants' variances "will alter the essential character of the neighborhood in which the property is located, may substantially or permanently impair the appropriate use of adjacent property, and may be detrimental to the public welfare." (ZHB C.L. ¶5, R.R. at 131a.)
Applicants appealed the denial of the variances to the Court of Common Pleas. The Court of Common Pleas took no additional evidence and affirmed the ZHB. The court recognized that "due to the size and shallowness of the lot, there is no possibility that the property can be developed for a General Commercial District use in strict conformity with the Township Code," but held that Applicants were also required to prove that the variances they sought were the minimum necessary to permit commercial use of the Property and that the variances would not harm the neighboring properties. (Court of Common Pleas Op. at 3-5.) The court concluded that the ZHB's findings that Applicants failed to prove these elements were supported by substantial evidence. (Id. at 5-7.) The court noted that "Applicants presented no evidence that the extreme deviation from the dimensional and parking requirements of the Code they were requesting would be necessary for any commercial use of the property," and that "[t]he record before the ZHB clearly supports the conclusion that the proposed high-traffic use, with inadequate parking, no dedicated loading zone and parking almost abutting the adjacent residential property, would have a substantial negative impact on the adjacent owners' use and enjoyment of their residential property and on the surrounding residential neighborhood." (Id. at 6-7.) This appeal followed.
Where the Court of Common Pleas does not take additional evidence, as is the case here, this Court's review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 256, 721 A.2d 43, 46 (1998); Township of Northampton v. Zoning Hearing Board of Northampton Township, 969 A.2d 24, 27 n.1 (Pa. Cmwlth. 2009). An abuse of discretion will be found only where the ZHB's findings are not supported by substantial evidence. Hertzberg, 554 Pa. at 256, 721 A.2d at 46.
To be entitled to a variance, an applicant must prove all of the following:
(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.Section 910.2(a) of the Municipalities Planning Code (MPC), 53 P.S. § 10910.2(a) (emphasis added); see also Hertzberg, 554 Pa. at 256-57, 721 A.2d at 46-47; Township of Northampton, 969 A.2d at 27.
(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.
(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.
Act of July 31, 1968, P.L. 805, § 910.2(a), added by the Act of Dec. 21, 1988, P.L. 1329, § 89, as amended, 53 P.S. § 10910.2(a). --------
The degree of hardship that an applicant must show is less for dimensional variances than for use variances, and economic detriment and financial hardship to the applicant may be considered where only dimensional variances are sought. Hertzberg, 554 Pa. at 257-59, 263-64, 721 A.2d at 47-48, 50; Society Hill Civic Association v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178, 1186-87 (Pa. Cmwlth. 2012). This, however, does not exempt dimensional variances from the requirements that the variance sought be the minimum and least modification of the zoning regulation at issue needed to remedy that hardship and that the variance not be detrimental to the neighboring properties and public interest. "It is only the stringency of the standard in proving an unnecessary hardship that varies, depending on whether a use or dimensional variance is sought." Society Hill Civic Association, 42 A.3d at 1186. In determining whether the applicant has satisfied the requirements for a dimensional variance, all compliant uses of the property must be considered, not just the particular use that the owner prefers. Township of Northampton, 969 A.2d at 27-30; Yeager v. Zoning Hearing Board of City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001).
Here, the ZHB concluded that Applicants failed to satisfy two conditions that they were required to prove, 1) 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)(5), and 2) that it "will not alter the essential character of the neighborhood ... nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare," 53 P.S. § 10910.2(a)(4). (ZHB C.L. ¶¶3-5, R.R. at 131a.) Both of these determinations are supported by the evidence in this case.
Applicants argue that the ZHB abused its discretion with respect to whether the variances were minimum variances because any commercial use of the Property would require some variance from the same Zoning Ordinance provisions, and there is no possibility that the Property can be developed in strict conformity with the Zoning Ordinance. Applicants are correct that the evidence showed that it would be impossible to comply with the 12 by 65 foot truck loading space and 75-foot buffer yard requirements on a lot this size and that the nearby commercial properties do not fully conform to those requirements. Those facts, however, show only that the Property is subject to unnecessary hardship sufficient to support variances, not that the variances sought are the minimum or least modification of these zoning requirements.
Applicants did not merely seek a reduced size loading space or a reduction in the 75-foot buffer yard. Rather, they sought variances that would permit them to operate with no loading space at all and none of the 75-foot setback from the adjacent residential property. The fact that some variance from each of these requirements is necessary does not establish that the wholesale elimination of any dedicated loading space and elimination of the entire 75-foot buffer are the minimum variances needed. The amount of the variances from both of these requirements depends on the number of parking spaces that the use of the Property requires and the size of the building needed for that use. Applicants did not introduce any evidence that the Property could not profitably be put to other commercial uses, such as professional offices or day care, that require fewer parking spaces than a deli or grocery. (See Zoning Ordinance § 232-586(c), R.R. at 98a-99a.) Nor did Applicants introduce any evidence that other commercially viable uses of the Property would require as large a building as their preferred use. The ZHB therefore properly concluded that Applicants failed to meet their burden to show that their variances were the minimum and least modification that would afford relief.
The ZHB's finding on detriment to the neighborhood and adjacent property is likewise supported by substantial evidence. The record showed that this was a higher volume use than the nonconforming commercial properties in the neighborhood, with trash issues that made the buffer particularly important, and Applicants' witness recognized their seven parking spaces were likely to be inadequate at times. (Aug. 4, 2011 H.T., R.R. at 24a, 28a-37a, 44a, 58a.) Applicants' use also involved regular restocking of perishable products by truck deliveries twice a week during operating hours, unlike the uses on the other nonconforming properties. (Aug. 4, 2011 H.T., R.R. at 12a-13a, 32a-33a, 37a, 44a, 56a-57a; Sept. 1, 2011 H.T., R.R. at 68a-69a.) The ZHB could reasonably conclude that granting variances that eliminated the 75-foot buffer from a residential property would be particularly detrimental with such a congested and trash generating use. The ZHB could also reasonably conclude that elimination of an additional, separate loading space would be particularly detrimental to the neighborhood, where regular deliveries would be required and parking was already potentially inadequate.
Neither Otto v. Zoning Hearing Board of Hampden Township, 686 A.2d 36 (Pa. Cmwlth. 1996), nor Damico v. Zoning Board of Adjustment of City of Pittsburgh, 643 A.2d 156 (Pa. Cmwlth. 1994), supports reversal of the ZHB's denial of Applicants' variances. In Otto, the applicant showed that the variances were the minimum needed because a lesser variance would require demolition of existing buildings that pre-dated the zoning ordinance. 686 A.2d at 39. In addition, the variance in Otto could not cause any change in the character of the neighborhood or harm to the public welfare because there was no change in the use of the property, as the applicant had been conducting the same business on the property for 15 years. Id.
In Damico, there was evidence that the variance was a smaller deviation from the zoning regulations than the nonconformity of all the other buildings on the block. 643 A.2d at 163-64. Here, in contrast, there was no evidence that all other properties had completely eliminated the 75-foot buffer or the designated loading space and no evidence that other permitted and commercially viable uses needed variances as great as those that Applicants sought. Moreover, in Damico, the ZHB had granted the variance, and the issue was whether under the evidence, it could properly find that the variance was a minimum variance. Here, in contrast, the issue is not whether the ZHB could have found that the variances were minimum variances, but whether it was required to find that they were.
Because the ZHB correctly applied the law and its findings are supported by the evidence in the record, we affirm.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of May, 2013, the Order of the Court of Common Pleas of Bucks County is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge