Opinion
No. 1788 C.D. 2012
05-21-2013
Stephen P. Gallagher, Jr., Appellant v. Zoning Hearing Board of Haverford Township
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, Stephen P. Gallagher, Jr. (Objector), apparently a lawyer representing himself, asks whether the Court of Common Pleas of Delaware County (trial court) erred in affirming a decision of the Zoning Hearing Board of Haverford Township (ZHB) that granted a use variance and a dimensional variance to Patricia Crossan and Damian Crossan (collectively, Applicants) in connection with their proposed day-care center. Objector contends the ZHB erred in granting the variances where Applicants did not prove unnecessary hardship. Objector also asserts the ZHB's determinations are not supported by substantial evidence. Discerning no error, we affirm.
The Honorable Chad F. Kenney, Sr., President Judge, presided.
I. Background
Applicants are lessees of the property located at 104 East Township Line Road, Havertown, Pennsylvania (Property). The Property comprises .75 acres and is improved with a three-story residential structure. The Property is located in the R-4 Low- to Medium-Density Residential District of Haverford Township (Township), Delaware County, and is governed by Section 182-206 of the Zoning Ordinance of the Township of Haverford (Ordinance).
Applicants requested zoning variances from Section 182-206.B to use the Property as a day-care center and from Section 182-701.C(1)(a)[1] to construct a three-foot by five-foot freestanding sign on the Property.
Section 182-206.B(1) of the Ordinance, which governs uses permitted in the R-4 residential district, provides the permitted uses are the same as those in the R-1 district. These permitted uses include:
(a) Single-family detached dwellings.Section 182-202.B(1) of the Ordinance (permitted uses in the R-1 district).
(b) Railway or bus passenger stations.
(c) Telephone central offices, electric substations or similar essential or public utility uses, subject to the provisions of Section 182-714.
(d) Day care for not more than two (2) children not related by blood or marriage to the residents of the dwelling. Such use is not subject to the licensing requirements for a business operation.
Section 182-701.C, which governs signs in residential areas, provides permanent signs identifying a professional, home occupation or accessory use to a dwelling are limited to 108 square inches. Section 182-701.C(1)(a) of the Ordinance.
At the public hearing before the ZHB on December 1, 2011, Applicants testified and presented the testimony of neighbor Jean Angell in support of the requested variances. Applicants also submitted eight exhibits, including the deed to the Property, lease agreement, Patricia Crossan's credentials, photographs of the Property, interior floor plans, proposed parking plans, a sketch of the proposed sign, and a variance to use the Property as a group home granted by the ZHB in 1975. Objector and Vanessa Williams Dreyer, who are also neighbors, testified and presented evidence in opposition to Applicants' requests.
At a subsequent public hearing held on January 5, 2012, the ZHB unanimously voted to approve both requests. Thereafter, the ZHB issued a written decision containing findings of fact and conclusions of law. We summarize the ZHB's pertinent findings and conclusions as follows.
The Property was originally constructed as a residential property, but was renovated over the years for a more commercial use. ZHB Op., 1/6/12, Finding of Fact (F.F.) No. 13(e). The Property is the subject of a variance issued in 1975, which allowed St. Vincent's/Catholic Social Services to use it as a group home. F.F. No. 13(f).
Across the street from the Property in adjacent Upper Darby are primarily commercial properties, some of which have large billboards and signs. F.F. No. 13(i). Another day-care facility, which was originally constructed as a residence, is located three properties away. F.F. No. 13(c).
The Property has a large side yard abutting Bewley Road with several mature hardwood trees. F.F. No. 13(j). Applicants intend to focus the day-care curriculum on outdoor activities for the children and use the outdoor space without altering the character of the land or removing the trees, except for the construction of a fence around the yard. Id.
The Property has nine off-street parking spaces. F.F. No. 14. Applicants submitted two alternate parking plans. Option A would expand the existing Township Line Road driveway so that there would be an exit on Bewley Road and would increase the number of parking spaces to 14. F.F. No. 15. Option B would expand the size of the Township Line Road driveway with no ingress or egress on Bewley Road. Option A provides parents an easier ingress and egress to drop off their children. F.F. No. 15(b).
Applicants propose a three-foot by five-foot freestanding sign. F.F. No. 9. A variance is necessary because the maximum sign allowed by the Ordinance (108 inches) is inadequate for people driving down Township Line Road to identify the Property. F.F. No. 15(c).
The ZHB found that Applicants presented credible, competent evidence that the proposed day-care will provide a benefit to the public, enhance the character and use of the neighborhood, and serve the best interests of the community. F.F. No. 24. The ZHB found the testimony offered in opposition to the variances unpersuasive. F.F. Nos. 23, 26.
Ultimately, the ZHB found Applicants presented sufficient evidence as to a hardship or perceived hardship afflicting the Property. F.F. No. 19. The granting of the requested variances will provide a needed benefit to the Township. F.F. No. 20. The proposed day-care center will not substantially alter the character of the neighborhood, specifically in light of the largely commercial surroundings. F.F. No. 21. The variances will preserve open space, which will continue to aesthetically and environmentally benefit the neighborhood. Id. The granting of the requested variances is reasonable in light of the history of the Property, specifically its use as a group home, and Applicants' efforts to request the most minimal variances to suit their purposes. F.F. Nos. 22, 23.
The ZHB concluded Applicants satisfied their burden of establishing all necessary elements for both variances. Applicants established unique physical circumstances or conditions peculiar to the Property, which make it impossible to make reasonable use of the Property in strict conformity with the Ordinance. Concl. of Law (C.L.) Nos. 5, 6. The proposed use will not alter the essential character of the neighborhood or be detrimental to the public welfare. C.L. Nos. 4, 7. Thus, the ZHB granted both variances subject to seven conditions.
The ZHB imposed the following conditions:
1. The number of children permitted to attend the day-care center is limited in accordance with the notes of testimony;ZHB Order, 1/6/12.
2. The outside lighting must not adversely affect the neighbors;
3. The only permitted hours of operation between 7:00 a.m. and 6:00 p.m. Monday through Friday;
4. The day-care must be closed on weekends;
5. The project must be completed within one (1) year of the approval of the variance;
6. The project must be completed in accordance with the notes of testimony; and
7. All other conditions must be complied with in accordance with the notes of testimony.
Objector timely filed a land use appeal with the trial court, which he later supplemented. Applicants intervened. Without taking additional evidence, the trial court affirmed. Objector appealed to this Court.
Applicants argue Objector should not have been permitted to supplement his land use appeal. However, Applicants did not raise this issue before the trial court. As a result, the issue is waived. Pa. R.A.P. 302 (providing "[i]ssues not raised in the [trial] court are waived and cannot be raised for the first time on appeal.")
Objector moved to dismiss Applicants' petition to intervene, which the trial court denied. Tr. Ct. Order, 6/1/12, at 1.
Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).
In this appeal, Objector argues the ZHB's findings are not supported by substantial evidence. Objector claims the evidence fails to satisfy the elements necessary for relief. Objector also contends the ZHB failed to make required findings of fact regarding hardship. Specifically, Objector asserts the ZHB failed to identify the unique physical circumstances of the Property leading to unnecessary hardship.
In his reply brief, Objector also contends that the ZHB failed to timely file findings and conclusions of law in accordance with Section 908(9) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10908(9), which provides the ZHB shall render a written decision within 45 days after the last hearing. Although Objector raised this issue in his initial notice of appeal filed with the trial court, Objector did not include this issue in his statement of questions presented or address it in his original brief to this Court. Objector raised this issue for the first time in his reply brief in response to Applicants' assertion that Objector abandoned this argument. By failing to address the issue in his original brief, Objector has abandoned the issue. Objector cannot raise new issues in a reply brief. Pa. R.A.P. 2113(a); see Commonwealth. v. Cam Ly, 602 Pa. 268, 980 A.2d 61 (2009) (reply brief is an inappropriate means for presenting a new and substantively different issue than that addressed in the original brief). Thus, the issue is waived. Richardson v. Thomas, 964 A.2d 61 (Pa. Cmwlth. 2009) (court refused to consider issue raised in reply brief but not in statement of questions involved in the principal brief).
Even if the issue was not waived, Objector's assertion that the ZHB failed to render a written decision within 45 days after the last hearing is without merit. The ZHB voted to approve the variances at the last public hearing on January 5, 2012, not December 1, 2011. On January 6, 2012, the ZHB sent a notice of its decision to Objector, which stated the ZHB is preparing a written decision. Objector acknowledges the ZHB certified the record to the trial court on February 16, 2012, and that its written decision was attached. See Appellant's Reply Br. at 4. Thus, the ZHB rendered its written decision within 45 days after the last hearing.
To begin, the ZHB abuses its discretion when its findings are not supported by substantial evidence. Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d 1061 (Pa. Cmwlth. 2012). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. In determining whether substantial evidence exists, the Court is mindful that the credibility of witnesses and the weight to be accorded to their testimony is within the sole province of the ZHB in its capacity as fact-finder. Id. The ZHB is free to accept or reject the testimony of any witnesses, in whole or in part. Id.
This Court may not substitute its interpretation of the evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). Assuming the record contains substantial evidence, we are bound by the ZHB's findings that result from resolutions of credibility and conflicting testimony. Id.
II. Variance
A. Use Variance
The governing factors applicable to use variances are:
(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 this chapter in the neighborhood or district in which the property is located.
(b) 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 chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(c) That such unnecessary hardship has not been created by the appellant.
(d) 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.Section 182-1004.A(1) of the Ordinance; accord Section 910.2(a) of the Pennsylvania Municipalities Planning Code (MPC). In granting any variance, the ZHB may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes the MPC and the Ordinance. Section 182-1004.B of the Ordinance; accord Section 910.2(b) of the MPC, 53 P.S. §10910.2(b).
(e) 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, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10910.2(a).
1. Hardship
To show unnecessary hardship, an applicant must prove: (1) the physical features of the property are such that it cannot reasonably be used for a permitted purpose; (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance. Taliaferro. The applicant must show the hardship is unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district. Id. Mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance. Id. Where a condition renders a property almost valueless without the grant of a variance, unnecessary hardship is established. Id.; Soc'y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of City of Phila., 787 A.2d 1123 (Pa. Cmwlth. 2001). Further, where zoning regulations prohibit any reasonable use of the property absent variance relief, the requisite hardship is proven. Taliaferro.
Although unnecessary hardship usually relates to the physical characteristics of the land, unnecessary hardship can relate to the building itself. Wagner v. City of Erie Zoning Hearing Bd., 675 A.2d 791 (Pa. Cmwlth. 1996). Unnecessary hardship can be demonstrated where the use of the property for any purpose would be possible only through extensive reconstruction or demolition of the building. Id. Property owners are not required to reconstruct a building to a conforming use regardless of the financial burden. Halberstadt v. Borough of Nazareth, 546 Pa. 578, 687 A.2d 371 (1997).
Here, the ZHB made necessary findings of fact regarding hardship. The ZHB found the Property was previously used as a group home pursuant to a variance issued in 1975. F.F. No. 13(f). Although the Property was constructed as a residential property, the ZHB found it was renovated over the years for a "more commercial residential use." Id. The "granting of the requested variance is reasonable in light of the history of the property, specifically its use by a 1975 variance as a group home." F.F. No. 22. The ZHB found the surrounding area is largely commercial. F.F. Nos. 13(i), 21. Applicants have presented "sufficient testimony and evidence as to a hardship or perceived hardship afflicting the [P]roperty which would support an application for variance." F.F. No. 19.
The ZHB's findings are supported by Applicants' testimony and evidence, which the ZHB found credible. Applicants presented a copy of the 1975 zoning variance allowing the Property to be used as a group home for unwed mothers between the ages of 13 and 19 years old. Notes of Testimony (N.T.), 12/1/11, at 20; Crossan Ex. G.
Applicants also testified and presented photographs showing the commercial features that were added to the original residential structure over the years in order to accommodate its group home status. These features include: a three-story "fire tower" on the rear of the building that encloses an internal emergency exit stairwell; a three-story external fire escape; two emergency exits per floor; commercial doors throughout the structure equipped with panic bars; a commercial-type fire alarm and security system; commercial-type emergency lighting; and, a nine-car parking lot. See N.T. at 20-24, 39, 73; Crossan Ex. D (Photographs); Angell Ex. 1 (Photographs); Crossan Ex. E (Interior Floor Plans); Crossan Ex. F (Outside Site Plans). The front of the dwelling faces Township Line Road, a busy four-lane road. The shallow depth of the front yard as depicted in photographs submitted to the ZHB exposes the front façade to very close and unbuffered exposure to the impact of steady traffic and the commercial uses across the road. In the photo, there does not appear to be sufficient front yard to accommodate plantings sufficient to create an adequate buffer. Although the ZHB did not identify this evidence in its findings, there is no requirement that the ZHB identify specific evidence in support of each of its findings. See Taliaferro.
Additionally, Applicants and opponent Vanessa Williams Dreyer testified and presented evidence regarding the Property's commercial surroundings. On the "Property-side" of Township Line Road, U-Haul, which has 24-hour truck drop off, is located two buildings away from the Property. N.T. at 59. Another day-care center, which is much larger than the one proposed by Applicants, is located three properties away. Id. at 27, 64. Dreyer testified there may be "three residential properties on the whole block." Id. at 55.
On the Upper Darby side of Township Line Road, the buildings are all commercial. Id. at 26-27, 55. Llanerch Diner, which is open 24 hours a day and maintains a liquor license, is located directly across the street from the Property. Id. at 55. A new shopping center is being added down the street. Id. at 57. The commercial uses across the road are located in the adjacent township's C-1 District, which permits a variety of typical commercial/retail uses. A fully developed portion of this C-1 District particularly impacts the R-4 residential zone in Havertown for a distance of 600 feet along Township Line Road. By contrast, the vast majority of the zoning across the road from Haverford's various residential districts along Township Line Road are also residential and one large area along a creek is zoned Recreational. Thus, the impact of the commercial district in the neighboring municipality falls on a relatively tiny strip of six properties. Over 150 feet of the Havertown road frontage impacted by the neighboring municipality's C-1 District (or more than a quarter of the distance) consists of the subject property's road frontage, placing the greatest burden from the commercial uses across the road on the subject property.
We may take judicial notice of the provisions in the neighboring municipality's zoning regulations. Section 6107 of the Judicial Code, 42 Pa. C.S. §6107. The character of the surrounding neighborhood can be a relevant consideration in a variance request, regardless of whether those properties are governed by a different zoning ordinance. Cf. Amerikohl Min. Inc. v. Zoning Hearing Bd. of Wharton Twp., 597 A.2d 219 (Pa. Cmwlth. 1991) (considering special exception, the ZHB had the authority to consider the impact of the use on adjacent properties located in a different zoning district).
The distances stated above are easily discerned from the graphic scale identified on the Zoning Map included in the record.
In view of the building modifications that are inconsistent with single-family residential use as well as the particular burdens imposed by the road and surrounding uses, sufficient evidence supports the ZHB's finding that the subject property suffers a unique degree of hardship justifying variance relief. Our conclusion that residential use is rendered impractical due to surrounding land use is consistent with decisions from our Supreme Court, suggesting that a property may be significantly impacted by surrounding uses and conditions so as to justify a variance to allow a commercial-type use. See E. Torresdale Civic Assoc. v. Zoning Bd. of Adjustment, 536 Pa. 322, 639 A.2d 446 (1994); Valley View Civic Assoc. v. Zoning Bd. of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).
Objector claims the Property has never been used commercially and the 1975 variance did not permit commercial use of the Property, but merely a group home run by a nonprofit entity. Objector also argues the Property's prior use as a group home bears no relation to the variance requested.
While we agree that running a group home differs from running a commercial day-care, the fact remains the Property has not been used as a single- family dwelling since the variance was granted in 1975. The features that were added to the original residential structure in order to accommodate its group home status are commercial in nature and are inconsistent with single-family use. These features, combined with its commercial surroundings, make it impractical for the Property to be used in strict conformity with the Ordinance's permitted use as a single-family detached dwelling.
No one is asserting the Property is suitable for the other permitted uses (railway or bus passenger station or public utility office or substation).
Objector also takes issue with the fact that the word "hardship" was not mentioned throughout the hearing. Although a party must demonstrate unnecessary hardship for a variance, we are not aware of any authority requiring the use of "magic" words to satisfy this burden. To show unnecessary hardship, Applicants must establish that the physical features of the property are such that it cannot reasonably be used for a permitted purpose. Taliaferro. Applicants satisfied this burden by presenting evidence of the Property's history, physical features and commercial surroundings that are inconsistent with single-family use.
Applicants did not inflict this hardship on themselves. These changes were made to the Property long before Applicants entered into the lease in 2011 or before the current owner acquired the Property in 1992. See Crossan Ex. A (Deed); Crossan Ex. B (Lease). The changes were made to the Property to accommodate its group home status. The Property is no longer used as a group home.
In Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 936 A.2d 1061 (2007), our Supreme Court held that pre-purchase knowledge of zoning restrictions, without more, does not create hardship. Indeed, recent cases from this Court recognized that the right to a variance arises from characteristics of the property, not characteristics of the owner. See, e.g., Manayunk Neighborhood Council v. Zoning Bd. of Adjustment of the City of Phila., 815 A.2d 652 (Pa. Cmwlth. 2002), appeal denied, 574 Pa. 777, 833 A.2d 145 (2003).
For these reasons, we reject Objector's argument that the ZHB's findings and conclusions are inadequate. We also reject Objector's contention that the ZHB's findings regarding unnecessary hardship are not supported by substantial evidence.
2. Community Impact
a. Character of the Neighborhood
The ZHB determined the variance will not alter the essential character of the neighborhood in which the Property is located. The ZHB found the buildings "across the street in Upper Darby are primarily commercially used properties, some of which have large billboards and signs." F.F. No. 13(i). The ZHB further found the "proposed day-care center will not substantially change the character of the neighborhood, specifically in light of the largely commercial surroundings." F.F. No. 21.
Objector claims these findings are not supported by substantial evidence because the area is zoned for residential use. Although some residential properties exist on the block, the overwhelming evidence presented supports the ZHB's findings that the area surrounding the Property is largely commercial.
As discussed above, Applicants and objector Dreyer presented testimony and evidence that the Property is surrounded by a U-Haul, another commercial day-care, a diner, and other numerous other commercial enterprises. N.T. at 26-27, 55, 57, 59, 64. These commercial enterprises advertise with large signs and billboards. Id. at 27. The record contains substantial evidence that commercial uses, particularly day-care centers, are in the immediate vicinity and the addition of another day-care center will not alter the character of the neighborhood.
b. Public Welfare
Additionally, the ZHB found the proposed use will not be detrimental to the public welfare. F.F. No. 21. Rather, granting the variance will provide a needed benefit for the Township. F.F. No. 20. The variance will preserve open space and aesthetically and environmentally benefit the neighborhood. Id.
Objector contends Applicants have not presented any credible, competent evidence to show the proposed day-care will provide a benefit to the public. Contrary to this assertion, Applicants put forth substantial evidence regarding the academic, aesthetic and environmental benefits of the proposed day-care.
Patricia Crossan, who is a highly credentialed educator, testified a need exists in the Township for a day-care that provides a structured, high-caliber pre-school education and incorporates an outdoor curriculum. N.T. at 13, 28-29. While other day-cares are located in the area, they do not offer this same academic approach. Id. at 28.
Except for modifying the driveway and adding a fence, Applicants plan to preserve the open space and maintain the mature trees on the Property. Id. at 29. Jean Angell, who is a member of the community civic association, a coordinator of the Haverford Township Tree Tenders Program and member of the Shade Tree Commission, testified there are numerous mature trees on the .75 acre lot, including a copper beech and two white oaks, which benefit the neighborhood. Id. at 50-51; Angell Ex. 1 (Photographs). She testified the trees provide beauty, shade, filtration of air- and water-borne pollutants, and a sense of history to the community. N.T. at 52.
Objector also challenges the ZHB's finding that construction of a driveway leading from Township Line Road to a new exit on Bewley Road would provide easier ingress and egress for parents dropping off their children. Objector contends this proposed ingress/egress to the Property completely disregards the inconvenience to the neighbors who use Bewley Road, and the finding is not supported by substantial evidence.
Although Objector testified at the hearing regarding his concerns for traffic on Bewley Road, N.T. at 63-64, the ZHB did not find Objector's testimony persuasive. Instead, the ZHB relied upon the testimony of Damian Crossan. Mr. Crossan provided the ZHB with two options for ingress/egress. Id. at 42-45. Option A contains a new exit on Bewley Road. Id. at 42. Option B would widen the existing driveway on Township Line Road. Id. He testified Option A is preferable because it would be easier for parents dropping off children with a one-way system of traffic and because it would produce fewer cars backing up and turning around in the parking lot. Id. at 43.
We conclude the ZHB's determinations that the proposed use variance will not alter the essential character of the neighborhood nor be detrimental to the community are supported by substantial evidence. Objector's challenge amounts to little more than an impermissible attack on the ZHB's credibility determinations. See Taliaferro (we are bound by the ZHB's credibility determinations).
3. Minimum Variance
The ZHB found Applicants' requested variance to use the Property as a day-care represents the minimum variance that will afford relief in light of the Property's former use as a group home. F.F. No. 23. The ZHB also found the Ordinance permits the use of a "small day-care" in the R-4 district, but Applicants' proposed day-care does not qualify. F.F. Nos. 4, 5.
Objector contends the ZHB's findings are not supported by substantial evidence and are irrelevant because the request for a variance would not be necessary if the Ordinance permitted this use. Objector also argues Applicants intend to make full and maximum use of the Property as a day-care to accommodate 36 children, which is the most permitted by law based on square footage of the Property. See N.T. at 25.
The Ordinance permits a limited type of day-care in this district. The Ordinance permits a "day-care for not more than two (2) children not related by blood or marriage to the residents of the dwelling" in the R-4 district. Section 182-202.B of the Ordinance. The Ordinance also permits a special exception for a day-care for not more than six children not related by blood or marriage to the residents of the dwelling. Section 182.202.B(3) of the Ordinance. However, such use must be located in the dwelling in which the operator or care giver resides, must be incidental to the residential use, may not include any alterations or renovations inconsistent with the residential use of the dwelling, and may not include signs displayed at the site. Section 182.202.B(3)(f) of the Ordinance. Applicants requested a variance because the proposed day-care center does not meet these criteria. F.F. No. 5.
Contrary to Objector's contention, the ZHB's finding is not irrelevant because it shows that day-cares are permitted in the R-4 district. Applicants' proposed day-care use is compatible with the day-care uses permitted by right and by special exception in the district. Since the Property is no longer suitable for single-family use, the variance will enable reasonable use of the Property as a day-care, without major alterations to the structure or yard. We conclude that the ZHB did not err or abuse its discretion in determining the use variance requested is minimal.
We note ZHB has deferred to the Department of Public Welfare (DPW) for the number of children permitted to attend the day-care. A license from DPW is required for all day-care provided at a nonresidential facility. Section 182-106 of the Ordinance. DPW determines the number of children based upon square footage of the building. See Notes of Testimony (N.T.), 12/1/11, at 25. Based upon Applicants' calculations, they estimate this number to be 36. Id. --------
Applicants established the physical features of the Property have created an unnecessary hardship, which was not self-imposed, and that the grant of a variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare. For these reasons, we conclude that the ZHB did not err in determining that Applicants met their burden of proof for the use variance.
B. Dimensional Use Variance
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. Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). The same criteria apply to use and dimensional variances. Id. However, in Hertzberg, the Supreme Court of Pennsylvania set forth a more relaxed standard for establishing unnecessary hardship for a dimensional variance, as opposed to a use variance.
Under Hertzberg, the courts may consider multiple factors in determining whether the applicant established unnecessary hardship for a dimensional variance. These factors include 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. Id.
Although Hertzberg eased the requirements, it did not remove them. Doris Terry Revocable Trust v. Zoning Bd. of Adjustment of City of Pittsburgh, 873 A.2d 57 (Pa. Cmwlth. 2005). An applicant must still present evidence as to each of the conditions listed in the zoning ordinance, including unnecessary hardship. Id. at 61-63. 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. See, e.g., Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997 A.2d 423 (Pa. Cmwlth. 2010) (rejecting applicant's request for dimensional variance for proposed sign where only asserted hardship involved alleged benefit to community and increase in income).
Here, the Ordinance permits permanent signs measuring 108 square inches "identifying a professional, home occupation or accessory use to a dwelling" in the R-4 District. Section 182-701(C)(1)(a) of the Ordinance. The ZHB determined Applicants are entitled to a dimensional variance for their sign. The ZHB found the proposed three-foot by five-foot sign is necessary because the maximum sign allowed by Ordinance would be inadequate for motorists driving on Township Line Road to identify the Property. F.F. No. 15(c). The character of the neighborhood surrounding the Property is largely commercial. F.F. No. 21. The commercial buildings across the street have large signs and billboards. F.F. No. 13(i).
Objector contends the ZHB's findings are not supported by substantial evidence. Objector also takes issue with the quantum of measurement used by the ZHB and Applicants, that is, feet as opposed to inches. He claims this measurement is "disingenuous" and "misleading" and avers the proper measurement for the proposed sign is 2160 square inches. Appellant's Br. at 10.
Regardless of whether the measurement is in inches or in feet, squared or unsquared, mathematically the size of the sign is the same. It is easier to conceptualize the dimensions of the proposed sign in feet rather than inches. Thus, this issue lacks merit.
Further, contrary to Objector's assertions, the ZHB's findings are supported by the evidence. Township Line Road is a busy, four-lane road lined with commercial properties and "big billboards." N.T. at 27, 56, 58. Damian Crossan testified that a sign measuring 108 square inches would be inadequate for people driving on Township Line Road to identify the Property. Id. at 45. He further testified it would be difficult to fit the name of the school, Wee Irish School of Havertown, into a sign measuring only 108 square inches. Id. He testified that a sign measuring three-feet by five-feet is necessary to enable motorists to identify the driveway. Id. at 46. The proposed sign would be large enough to identify the school, but not so large as to be a distraction. Id.
Moreover, Section 182-701(C)(1)(a)'s dimensional sign requirements work in conjunction with the permitted uses of the Property. The Property is no longer suited to the purpose for which it is zoned. As discussed above, the ZHB found unnecessary hardship arising from the unique physical characteristics of the Property justifying the grant of the use variance. Because the Ordinance's sign restrictions pertain to the permitted use of the Property as a dwelling, the same hardship asserted for the use variance also applies to the dimensional variance. A dimensional variance from the Ordinance's sign regulations will enable Applicants to develop the day-care use. See Soc'y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment for the City of Philadelphia, 772 A.2d 1040 (Pa. Cmwlth. 2001) (dimensional variances involve a reasonable adjustment from open area and space requirements in order to develop a permitted use).
Further, a three-foot by five-foot, or 15 square foot, sign is permitted in the R-4 district, albeit for other types of uses (recreational use, institutional use, or a property with 10 or more dwelling units). Section 182-701.C.(1)(b) of the Ordinance. The proposed sign does not exceed this limitation. Thus, the requested variance is a minimal adjustment from Ordinance's sign requirements.
Taking into consideration the commercial characteristics of the surrounding neighborhood, the busy four-lane road, the presence of large billboards nearby, and the relaxed hardship standard set forth in Hertzberg, Applicants have demonstrated the requisite hardship if they are restricted to a sign measuring a mere 108 square inches for their business. We conclude the ZHB did not err or abuse its discretion in granting the dimensional variance.
III. Conclusion
In conclusion, the ZHB made requisite findings and conclusions concerning the criteria required to grant the requested variances. The ZHB specified the evidence it relied upon and the reasons for accepting it. The ZHB's findings are supported by the testimony and evidence offered in favor of granting the variances, which the ZHB credited. That Objector disagrees with the ZHB's findings does not mean the findings are unsupported. We, therefore, conclude the ZHB did not err in determining Applicants satisfied their burden justifying the variances.
Based on the foregoing, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 21st day of May, 2013, the order of the Court of Common Pleas of Delaware County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE COLINS
I must respectfully dissent from the well written opinion of the majority. Specifically, my reasons are as follows:
(1) Use Variance - An expansion from the childcare uses permitted by the Ordinance, a maximum of two children that are unrelated or six children each permitted by special exception, to the 36 children as envisioned by the variance is hardly "the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue." (See Majority Opinion at 9.)
(2) The Consideration of the Surrounding Neighborhood - Amerikohl Mining Inc. v. Zoning Hearing Board of Wharton Township, 597 A.2d 219 (Pa. Cmwlth. 1991), does not support consideration of an adjoining municipality's commercial district as a justification for relaxing Haverford Township's R-4 residential district zoning requirements. Amerikohl allows only for consideration of the negative impact of the proposed use on adjacent properties located in a different zoning district. 597 A.2d at 224. That is not the case here. The fact that the Borough of Upper Darby has allowed far more commercial development on the other side of Township Line Road cannot be used to undermine the properly enacted zoning ordinance of Haverford Township.
(3) Signage - Here again, the fact that Upper Darby permits large billboards and signs across the street cannot be used to allow a sign that is twenty times larger than that permitted in Haverford Township's R-4 District by Section 182-701.C(1)(a)[1] of the Ordinance. Dimensional variances for signage cannot be granted without a showing of unnecessary hardship, and the applicant's preferences and desire to maximize profitability do not satisfy that hardship requirement. Lamar Advantage GP Co. v. Zoning Hearing Board of Adjustment of City of Pittsburgh, 997 A.2d 423, 445-46 (Pa. Cmwlth. 2010). If the applicant has proposed a name that is too large to fit on a sign of the dimensions allowed by the Ordinance, the applicant should simply choose a shorter name.
/s/ _________
JAMES GARDNER COLINS, Senior Judge