Opinion
No. 847 C.D. 2014
02-27-2015
Robert Kreamer and Donna Kreamer, Appellants v. Zoning Hearing Board of the Borough of Ambler, Ambler Savings Bank, and Borough of Ambler
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Robert Kreamer and Donna Kreamer (together, Objectors) appeal from the April 18, 2014, order of the Court of Common Pleas of Montgomery County (trial court), affirming the decision of the Zoning Hearing Board of the Borough of Ambler (ZHB) to grant the dimensional variance applications filed by Ambler Savings Bank (Bank). We affirm.
Bank owns three parcels of land (Property) on Butler Avenue in the Borough of Ambler's DC-Downtown Commercial Zoning District. (ZHB's Findings of Fact, Nos. 1, 4.) The Property is located entirely within the Floodplain Conservation District. (Id., Nos. 5, 14, 16.) Currently, Bank utilizes two one-story structures with basements that are located on the Property. (Id., No. 7.)
On March 13, 2013, Bank submitted an application to the ZHB seeking special exceptions and dimensional variances. Bank sought to demolish the two structures and replace them with one 27,800-square-foot, three-story building, without a basement. The first floor would contain banking and lending operations. Administrative and executive offices would be located on the second and third floors. (Id., Nos. 8-9.)
Among the special exceptions requested, Bank sought a special exception under section 27-2803.3 of the Borough of Ambler Zoning Ordinance (Ordinance) to construct the building to a height of 51 and one-half feet. (ZHB's Findings of Fact, No. 28.) Section 27-2803.3 of the Ordinance sets the maximum building height at 40 feet. Bank also sought two dimensional variances from the setback requirements of section 27-2803 of the Ordinance, which imposes setbacks for buildings in excess of 40 feet high. (ZHB's Findings of Fact, Nos. 29-30.)
The ZHB conducted two hearings. Bank presented the testimony of its executive vice president and chief operating officer, Roger A. Zacharia, who testified that the buildings presently utilized by the bank are 52 years old. (N.T., 4/17/13 at 152.) Zacharia testified that a 2011 hurricane caused flooding. "[T]he main bank building took five inches of black water. Sewage actually came up through toilets in the basement. Our loan building at its peak took almost six feet of water." (Id. at 147-48.) The flooding caused close to a quarter of a million dollars in damages. (Id. at 148.) He explained that at that point "it became apparent that that was an unattainable situation." (Id.)
Bank also presented the expert testimony of Richard Collier, Jr., a professional planner and surveyor; Anthony John Hibbeln, a professional civil engineer; and Peter Phillips, an architect.
Collier testified that the Property is narrow and irregularly shaped. (ZHB's Findings of Fact, No. 24.) Because the Property is entirely within a floodplain, the proposed building had to be configured and placed so as not to impact the floodplain. (Id., No. 25) Collier explained:
If you have . . . a pan that's full of water and you put a brick in it, that water is going to be displaced by the volume of that brick. Now, if that brick were turned on its side and set in the same pan of water, it doesn't have as much displacement.(N.T., 4/17/13, at 24.)
Because of the floodplain, Bank could not utilize underground space for offices or storage, and an increased building height was necessary. (ZHB's Findings of Fact, No. 26.) Collier described other buildings in the area similar in height to the one proposed by Bank. (N.T., 4/17/13, at 32.)
Collier testified that he:
[c]onfigured the site to be able to accommodate a building that was long and narrower and taller in order to . . . accommodate the space that was necessary for the [Bank's] growth . . . and secondly to allow that the floodplain elevation would not change and that the waters would continue to flow as they do during a storm event from . . . Butler Avenue . . . .(Id. at 24.)
As to the need for dimensional variances, Collier stated:
If we need to set the building back one foot for each additional foot over forty, we will be setting the building back from Butler and back from Lindenwold and there would be no room to put the building on the site. There will be no rear area for parking or circulation. It would be pushed back so far on the site that it would not fit.(Id. at 30.)
Hibbeln prepared a flood study and drainage report of the Property for Bank. (Id. at 70.) Hibbeln testified that presently, "flood waters backing up from an underground pipe, travel down Butler and through the parking area and around the existing bank building" resulted in a wider and deeper floodplain than that generated by the proposed building. (Id. at 71.)
Phillips testified that the banking facilities would be located on the first floor. (Id. at 110.) The second and third floors would house corporate offices. (Id.)
Objectors and one other neighboring landowner testified before the ZHB, objecting to the relief sought by Bank. Objectors did not present expert testimony.
The ZHB concluded that Bank met its burden in its applications for its requested special exceptions and variances. Objectors appealed to the trial court, which affirmed. This appeal followed where the only issue raised by Objectors is whether the ZHB erred in granting the dimensional variances.
Where, as here, the trial court does not take additional evidence, this court's review is limited to determining whether the ZHB abused its discretion or committed an error of law. Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74, 78 n.1 (Pa. Cmwlth. 2004).
Section 910.2(a) of the Pennsylvania Municipalities Code (MPC), 53 P.S. §10910.2(a), requires an applicant seeking a variance to show that: there are unique physical circumstances or conditions of the property resulting in an unnecessary hardship; because of the physical circumstances or conditions the property cannot be developed in strict conformity with the ordinance; the hardship is not self-inflicted; granting the variance will not alter the essential character of the neighborhood; and the variance sought is the minimum necessary to afford relief.
Act of July 31, 1968, P.L. 805, as amended. Section 910.2 was added by the Act of December 21, 1988, P.L. 1329. --------
In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998), the Pennsylvania Supreme Court held that "[w]hen seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations." Thus, the standard for proving unnecessary hardship is not as burdensome, and a court may consider the cost of strict compliance with the zoning ordinance, the economic hardship that will result from denial of the variance, and the characteristics of the surrounding neighborhood. Id. at 50.
Section 27-2803 of the Ordinance provides that "for every foot of height in excess of 40 feet[,] an additional one foot shall be added to each yard setback." The proposed building height of 51 and one-half feet would require setbacks of 11 and one-half feet on Butler Avenue and Lindenwold Avenue. The ZHB granted Bank's requested setback of 4 feet for Butler Avenue and 11 feet for Lindenwold Avenue. Objectors contend that Bank created its own hardship by proposing construction of a building over 40 feet tall thereby triggering the requirement for setbacks. We disagree.
As found by the ZHB, Bank's experts testified that the lot is irregularly shaped, narrow, and completely within a floodplain. Additionally, a culvert runs through and adjacent to the Property. The unique features of the Property presented design limitations as to the location of the proposed building. Further, underground space could not be used for storage or offices because of flooding concerns, resulting in the need for a taller building.
"It is the function of the [ZHB] to determine whether the evidence satisfies the criteria for granting a variance. The [ZHB], as fact-finder, is the sole judge of credibility." Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014) (citation omitted). Here, the ZHB correctly concluded, based on the expert testimony presented, that Bank satisfied the criteria for the dimensional variances.
Objectors also claim that Bank failed to prove that it was impossible to develop the Property in conformity with the setback requirements. However, in accordance with Hertzberg, this is just one factor to consider. See Talkish v. Zoning Hearing Board of Harborcreek Township, 738 A.2d 50, 52 (Pa. Cmwlth. 1999). In Talkish, a fire company requested dimensional variances to construct a new community center on its property in a different location. Id. at 51. This court agreed with the ZHB that the fire company proved an unnecessary hardship because the topography of the land, including flooding problems, prohibited placement of the community center within the setbacks. Id. at 52.
Similar to Talkish, Bank met its burden of proving an unnecessary hardship due to the topography of the Property, including its location within the floodplain and the narrowness of the lot. Moreover, the proposed building is similar in height to neighboring structures and its configuration is necessary to avoid the economic harm associated with severe flooding.
Accordingly, we affirm the trial court's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of February, 2015, we hereby affirm the April 18, 2014, order of the Court of Common Pleas of Montgomery County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge