Opinion
No. 697 C.D. 2013
01-08-2014
Oakbrook Fire Co. No. 14 Relief Association and Joseph P. Kuzminski, Appellants v. City of Reading Zoning Hearing Board
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Oakbrook Fire Co. No. 14 Relief Association (Association) and Joseph P. Kuzminski (Objector) appeal the order of the Court of Common Pleas of Berks County (trial court) denying their appeal and affirming the decision of the City of Reading Zoning Hearing Board (Board). We affirm.
The Association is a nonprofit corporation that owns property in the City of Reading (City), Berks County. The Association is a fire company beneficial and relief association that was established to support a separate entity, the Oakbrook Fire Co. No. 14 (Fire Company) which was located next to it. The Fire Company ceased operations and its firehouse was decommissioned by the City in 2010. The Association has approximately 500 members and operates a private member social quarters, picnic grove, bar and restaurant. The Fire Company owns the former firehouse which is adjacent to the Association's property. The single-bay firehouse was constructed circa 1902 and includes a second floor bunk room and a rear parking lot with 22 off-street parking spaces. The Association does not have off-street parking and uses the parking areas on the Fire Company's property for deliveries and member parking.
Kyle Neuheimer (Applicant) and the Fire Company have entered into an agreement for the sale of the Fire Company's property. Applicant wants to purchase the property and convert the former firehouse structure into a microbrewing facility and brew pub. Because the Fire Company's property is located in the City's R-2 Zoning District which does not permit light industrial and tavern/restaurant uses, Applicant submitted a zoning application to the Board for a variance under Sections 27-406.D. and 27-803(2) of the City's Zoning Ordinance.
Section 27-803.2.a. of the City's Zoning Ordinance provides the following uses that are permitted by right in the R-2 Zoning District: gardens, crop farming, and forestry; one family detached dwelling; one family semi-detached dwelling; one family attached dwelling; and public parks and non-motorized recreational trails.
Before the Board, Applicant, who was unrepresented, testified that he wanted to operate the microbrewery and small brew pub in the former firehouse structure. He stated that it was his understanding that the only other interest in the Fire Company's property was expressed by local businesses, including the Association, to use the parcel as a parking lot, and that one interested party has obtained a cost estimate for demolition of the firehouse. (Reproduced Record (R.R.) at 23a). He testified that while the parcel is zoned R-2, the lot to the east is vacant, the properties to the west include a social club, a parking lot and the former Maier's bakery, and that the parcel is just two lots east of the City's M-C Manufacturing/Commercial Zoning District with no residences in between. (Id. at 24a). However, he acknowledged that the microbrewery would be within 40 to 60 feet of the residences across the street. (Id. at 38a).
Applicant stated that the microbrewery would initially produce 300 to 1,000 barrels of beer per year and that he would eventually like to serve the beer produced on-site in a brew pub that would serve approximately 50 patrons at any given time. He testified that he never explored development of the building as a multi-unit or single-unit residential dwelling "because it's fairly clear to even a layperson that any sort of residential use of this building would be cost prohibitive." (R.R. at 44a). As he explained, the building is "essentially a garage;" there is very little insulation of any value; the heating system was designed with vehicles going in and out; there's no full kitchen but there's an old gas stove in the basement; and there's no real bathroom but only a shower for the guys to use when they stayed there overnight. (Id.). However, he conceded that he was not aware of why the lot could not be used for residential purposes, but he was aware that there weren't any offers to turn the building into a residential building since it was decommissioned by the City. (Id. at 45).
Numerous objectors, including a neighboring church, the Association, and Objector, a neighboring landowner, appeared and opposed the application. Several neighbors also appeared in favor of the proposed rehabilitation of the site and the proposed use.
In July 2012, three Board members, with one member recusing, granted the application subject to a number of conditions. Based on the testimony, the Board found that the property could be used in conformity with the strict terms of the Zoning Ordinance and that it is not suitable for modern firefighting purposes. The Board also found that the property could not be used for residential zoning purposes in any economical or feasible manner, and that the proposed use will be less intense than the Association's neighboring social quarters because fewer patrons can be served and there is on-site parking. The Board also found that it would be desirable to maintain the existing structure rather than tearing it down and converting the site into a parking lot. The Board further found that the proposed microbrewery and brew pub should not be detrimental to the health, safety and welfare of the neighboring properties or the zoning district in general will not affect church operations, the operations of the Association's social quarters, and the neighboring residences. Finally, the Board found that most of the people opposed to the proposed use were patrons and/or members of the Association's social quarters, many of whom do not live in the City. Objector and the Association appealed to the trial court, Applicant intervened, and without taking additional evidence, the trial court affirmed. The Association and Objector then filed this appeal.
Where, as here, the trial court takes no additional evidence, this Court's review is limited to determining whether the Board abused its discretion or committed an error of law. Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 554 Pa. 249, 256, 721 A.2d 43, 46 (1998). An abuse of discretion occurs where the Board's findings of fact are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.
The Association and Objector claim that the Board erred in granting Applicant's variance application because he failed to present sufficient evidence of unnecessary hardship or that the use variance was the minimum relief necessary as required by Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC). We do not agree.
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. Section 910.2 outlines the following five elements that are required to demonstrate unnecessary hardship: (1) there are unique physical circumstances or conditions; (2) the conditions cause an unnecessary hardship or unreasonably inhibit the use of the property; (3) the hardship is not self-inflicted; (4) the variance grant will not adversely affect the public health, safety, or welfare; and (5) the variance sought is the minimum that will afford relief.
Unnecessary hardship exists where physical or topographical characteristics of the property are such that the property could not be used for the permitted purpose, could only be conformed to such purpose at a prohibitive expense, or where the characteristics of the area are such that the lot has either no value or only distress value for any permitted purpose. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 167-68, 689 A.2d 225, 227-28 (1997). The test for entitlement to a variance is not whether the proposed use is more desirable to the owner than the permitted use, but, rather, whether the property may be used in a reasonable manner within the restrictive provisions of the zoning ordinance. Washington Township v. Washington Township Zoning Hearing Board, 365 A.2d 691, 692 (Pa. Cmwlth. 1976). Mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify the grant of a variance. Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 812 (Pa. Cmwlth.), appeal denied, 585 Pa. 692, 887 A.2d 1243 (2005).
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 Board, 675 A.2d 791, 799 (Pa. Cmwlth.), appeal denied, 546 Pa. 672, 685 A.2d 549 (1996). This Court has previously explained that "where premises cannot be converted into a permitted use without demolition and extensive reconstruction, more than 'mere economic hardship' exists." Zoning Hearing Board of the Township of Indiana v. Weitzel, 465 A.2d 105, 107 (Pa. Cmwlth. 1983) quoting Logan Square Neighborhood Association v. Zoning Board of Adjustment of the City of Philadelphia, 379 A.2d 632, 634 (Pa. Cmwlth. 1977). Moreover, "a property owner should not be required to reconstruct a building to a conforming use regardless of the financial burden that would be incident thereto." Id.
In Logan Square Neighborhood Association, the owner of a two-story garage-type structure applied for a use variance to operate a printing business which was denied. On appeal, the zoning board concluded that the property could not be converted to a permitted residential use in the zoning district without demolition and extensive reconstruction thereby demonstrating the requisite unnecessary hardship. On appeal, the trial court reversed because the only hardship proved was that the owner could not bring the building to conformance as a residence without making expenditures to effectuate the change and that this constituted "mere economic hardship." Logan Square Neighborhood Association, 379 A.2d at 634. On further appeal, this Court reversed and held that the owner's burden was unique given the practical difficulties and inordinate burden of the required demolition and conversion into a conforming residential structure. We explained that "[w]here premises cannot be converted into a permitted use without demolition and extensive reconstruction, more than 'mere economic hardship' exists." Logan, 379 A.2d at 634.
In O'Neill v. Philadelphia Zoning Board of Adjustment, 384 Pa. 379, 120 A.2d 901 (1956), the applicant sought to renovate a structure located in a residential zoning district into a ballet school and a private residence in which the first floor had been formerly used as a commercial garage and the second floor as an apartment. As in this appeal, the Supreme Court noted that "[h]ere the hardship is of a different character. It is the required conversion of the premises in question from a nonconforming to a conforming use at very substantial cost, claimed by the appellants to be financially impracticable." O'Neill, 384 Pa. at 384, 120 A.2d at 904 (emphasis in original).
In finding the evidence sufficient to support the grant of the use variance, the Supreme Court explained:
It sufficiently appears from the record which included photographs of the premises, that the conversion of the property into a residence would be inordinately burdensome and costly. As stated in the City Solicitor's brief: '* * * what is involved is the complete rebuilding of at least the interior of the premises. What were once stone floors suitable for large vehicles would have to be transformed into wooden floors suitable for occupants. What was once a large entrance suitable for large vehicles to pass through must be replaced by front walls suitable in construction and appearance for a private dwelling. What was once a big open space suitable for the parking of twelve commercial vehicles must be converted to partitioned rooms. What was once a heating system designed merely to satisfactorily house vehicles must be changed to a heating system suitable for
the occupancy by people. Plumbing facilities must be installed, electrical equipment must be placed in the walls which are still to be constructed * * *'.Id. at 385-86, 120 A.2d at 904-05.
While it is true that a board of adjustment may only grant a variance if an alleged hardship is substantial and of compelling force, we are of opinion that the appellants have shown those singular circumstances which justify a departure from the strict letter of the zoning regulations. The Board's discretion is not so circumscribed as to require a property owner to reconstruct a building to a conforming use regardless of the financial burden that would be incident thereto. Especially is this true where the change sought is from one nonconforming use to another more desirable nonconforming use that will not adversely affect but better the neighborhood....
Likewise, in the instant case, Applicant testified, in pertinent part, as follows:
Q. Have you gotten any quotes or explored the renovation of the existing property into multi-unit or a single unit residential dwelling?
A. I have not, because it's fairly clear to even a layperson that any sort of residential use of this building would be cost prohibitive. It is a shell right now. It's essentially a garage. When you walk into the building, as you can see, the overhead doors open directly into the main open area.
There is very little insulation in the building of any value. The heating system in the building really was designed in such a way that that open area with trucks constantly coming and going is not very well heated.
There is no full kitchen really in this room. There's an old gas stove in the basement. There is no real bathroom with a bath in this building. It's simply a shower for the guys to use when they were staying there overnight. It really is not a residence, sir.(R.R. at 43a-44a).
Based on the foregoing, the record supports the Board's determination that the Applicant sufficiently demonstrated the required unnecessary hardship for the variance to be granted. The firehouse was constructed circa 1902 and this nonconforming structure has never been used as a residence. Applicant's testimony supports the Board's finding that any use, including any permitted use or the proposed use, would require extensive renovation or demolition of the existing structure. As noted, the only permitted uses in the R-2 Zoning District are: gardens, crop farming, and forestry; one family detached dwelling; one family semi-detached dwelling; one family attached dwelling; and public parks and non-motorized recreational trails. The record supports the Board's finding that conformity with any of the foregoing uses would require either extensive renovation or outright demolition of the firehouse. Indeed, the only other interest in the property involves the demolition of the firehouse structure and use of the property as a parking lot. As a result, the Board did not err in granting the instant variance.
This hardship is not self-inflicted. The firehouse was constructed circa 1902 and the zoning restrictions were imposed long before Applicant entered into the agreement of sale, and there is no finding that Applicant paid an unduly high price in anticipation of the variance. As the Supreme Court has explained:
With respect to a landowner who purchases with knowledge of the property's condition and existing zoning restrictions, the hardship is deemed self-inflicted only where he has paid an unduly high price because he assumed the anticipated variance would justify the price, or where the size and shape of the parcel was affected by the transaction itself.
As in O'Neill, the Board found that the instant proposed use will be beneficial explaining:
The Board finds a microbrewery and brew pub can be a great asset to the neighborhood and would allow a historic structure to be maintained. There was no testimony put forward which would indicate the proposed microbrewery and brew pub would be detrimental to the health, safety and welfare of the neighborhood or that it would be in conflict with the residential and commercial uses located at or near the Subject Property. The Board finds the conversion of a firehouse into a brew pub and microbrewery would add to the tax base and provide a needed anchor for growth and development in that zoning district.(R.R. at 99a). The Association and Objector do not contest the Board's determination in this regard.
As the Supreme Court has explained:
This Court has never held that a property owner seeking a variance must present direct evidence as to the value of the property as zoned. We have in the past, for example, upheld the grant of a variance where no evidence of an attempt to sell the property was submitted. While evidence of the owner's inability to sell his property has unquestionable probative value, it would be unreasonable to force a property owner to attempt to sell as a prerequisite to the grant of a variance. We reiterate that the only showing required by our case law is that (1) an unnecessary hardship will be worked upon the property owner if the variance is denied, and (2) the proposed variance will not be contrary to the public interest. It is the function of the zoning board to determine whether the evidence satisfies that test and the courts will not disturb that determination unless it is not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Finally, the Association and Objector argue that Applicant failed to demonstrate that the use variance was the minimum necessary to afford Applicant relief. However, they also acknowledge our holding in South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115, 124 (Pa. Cmwlth. 2012), appeal granted in part, ___ Pa. ___, 73 A.3d 525 (2013), that the minimization requirement of Section 910.2 is only relevant in dimensional variance cases and not use variance cases such as the instant appeal. Moreover, the Board specifically found 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 Association social quarters because fewer patrons can be served at the proposed brew pub and there is on-site parking. (R.R. at 98a). The Association and Objector do not contest these findings and they support the conclusion that the minimization requirement, if relevant and applicable, is satisfied. --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge Judge McCullough dissents. ORDER
AND NOW, this 8th day of January, 2014, the order of the Court of Common Pleas of Berks County dated March 25, 2013, at No. 12-19848, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 430, 936 A.2d 1061, 1069 (2007) (citation omitted). Indeed, as this Court has noted, pre-purchase knowledge of zoning restrictions, without more, does not create a hardship and the right to a variance arises from the characteristics of the property and not the purchaser. Manayunk Neighborhood Council v. Zoning Board of Adjustment of the City of Philadelphia, 815 A.2d 652, 657 (Pa. Cmwlth. 2002), appeal denied, 574 Pa. 777, 833 A.2d 145 (2003).
Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 558-59, 462 A.2d 637, 641-42 (1983) (citations omitted).