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HomeMy WebLinkAbout2006-1889 Civil IN RE: LINLO PROPERTIES, LP, a Pennsylvania Limited Partnership APPELLANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. ZONING HEARING BOARD OF EAST PENNSBORO TOWNSHIP, APPELLEE NO. 06-1889 CIVIL TERM and EAST PENNSBORO TOWNSHIP, INTERVENOR LAND USE APPEAL IN RE: LAND USE APPEAL BEFORE BAYLEY and EBERT. JJ. OPINION AND ORDER OF COURT Ebert, J., October 6, 2006:-- I. STATEMENT OF FACTS Appellant Linlo Properties, LP, (Hereinafter "Linlo") owns a piece of property located at 32-34 Erford Road in East Pennsboro Township (Hereinafter the "Property,,).l The commercial building located on this property consists of 4,400 square feet divided into three rental suites: two occupied by restaurants and the third proposed to be occupied by a restaurant (though formerly occupied by a dry cleaning establishment).2 The addition of the third restaurant will require additional parking spaces to be installed in order to satisfy Township zoning ordinance? Since additional parking was unavailable, Linlo Properties sought a variance of the parking requirements, which the 1 Notes of Transcript of Proceedings of the Zoning Hearing Board held February 16, 2006, p. 3 (hereinafter "N.T. "). 2 NT 4; See also Supplement to Application for Zoning Hearing Board for Linlo Properties, LP, p. 1. 3 See East Pennsboro Township Zoning Hearing Board Conclusions of Law ~ 4. 1 Zoning Hearing Board (Hereinafter "Board") later denied.4 Linlo now appeals the Board's decision. When the original building permit was approved and issued by the Township in June 1984, the building construction and land development was approved for nineteen (19) parking spaces. While there were four suites in the building, Suites #1, lA, 2, and 3, at that time, the square footage of the building has remained the same. On April 10, 1992, Chester Snavely, the former owner, applied for a building permit to renovate Suite # 1 of the building from an Office Works to a restaurant operation called Simply Turkey.5 On April 30, 1992, the Board granted a variance reducing the required number of off-street parking spaces from 27 to 21 with a caveat in the order granting the variance that if the use of the property changed and additional off-street parking was required, then the property owner was directed to request further relief from the Board.6 On October 18,2005, Appellant entered into a lease agreement with Micha Pak for the lease of Suite #3, which had formerly been occupied by a dry cleaning operation. Micha Pak began renovations of Suite #3 in order to convert the Suite into a restaurant known as "Kabob House." 7 On December 8, 2005, the Township discovered that 4ld. 5 Brief In Support of Appellant's Land Use Appeal at 3. 6 See East Pennsboro Township Zoning Hearing Board Findings of Fact (Hereinafter "Findings of Fact _"), p. 2, ~ 10. See also Brief In Support of Appellant's Land Use Appeal. (Several months later in August 1992, Simply Turkey and Snavely applied for a second building permit to expand Simply Turkey into the adjoining suite #IA, which at that time was used for professional office space. This merger of the two suites created the current 3 suite commercial property. While changing the use of the #IA suite should have more than doubled the required number of parking spaces from 2 to 5 spaces, the second permit was approved without requiring any additional parking spaces by the applicant/owner; no additional variance was required. Appellant cites this fact in its brief, seemingly to suggest that the Township is either lax in the enforcement of ordinances or that it waived its right to require a variance or to enforce the zoning ordinance at the property. However, this information only attests to the fact that the Township has been patient and flexible in light of the limited space for additional parking). 7 Brief In Support of Appellant's Land Use Appeal, p. 4. 2 construction was taking place at the property without a building permit. 8 The construction was ordered to cease and Appellant was instructed to file an application for a variance from the Board to adjust the off-street parking requirements due to a change in commercial use.9 The application was submitted on January 11, 2006 and supplemented 10 on January 18, 2006. A hearing was conducted by the Board on February 16, 2006, during which time evidence and testimony were presented both for and against the variance. At the hearing the Board voted to deny the variance. On or about March 10, 2006, the Board presented Appellant with a Finding of Facts and a final decision from the hearing which included the following: 11 1. Proper notice of the zoning hearing was provided to all persons in compliance with [the] law 11. Applicant has standing to appear before the Zoning Hearing Board for the relief requested lll. Section 2103.B Table 2104, item 29, requires the Kabob House to provide 7 off-street parking spaces. This would be in addition to the 21 spaces permitted in the 1992 variance. IV. The proposed restaurant use requires more parking spaces (7) than the previous dry cleaning use (3). v. If a variance was granted, it would be detrimental to the public welfare. 12 VI. Applicant has failed to meet all of the minimum requirements to obtain the requested variance to reduce the number of off-street parking space required with the addition of a third restaurant. 8 See Findings of Fact p. 2, ~ 11. 9 Brief In Support of Appellant's Land Use Appeal, p. 5. 10 NT 3 11 See East Pennsboro Township Zoning Hearing Board Findings of Fact 12 This conclusion of fact is premised on overwhelming testimony from multiple sources that the increased intensity of a restaurant business would create a fire hazard and adversely impact the safety of all tenants and patrons of the appellant, not to mention the safety of the emergency first responders. Attempts to add more parking on an adjacent curb obstruct necessary fire lanes. See Transcript of Proceedings pg. 34-36. See also Findings of Fact, p. 2. 3 Appellant now brings the case before this Court in an effort to reverse the findings of the Board. II. STANDARD OF REVIEW In a land use appeal, where a full and complete record was made before the township, and the trial court takes no additional evidence, this Court's scope of review is limited to determining whether the board committed a manifest abuse of discretion or an error of law. 13 Zoning Hearing Board of Lower Allen Township v. Draisey, Pa. D.&C. 4t\ 05-1718 Civil Term (2005). See also Wolter v. Board ofSup'rs of Tredyffrin Tp., 828 A.2d 1160, 1162 (Pa. Cmwlth. 2003), citing Centre Lime and Stone Co., Inc. v. Spring Township Bd of Supervisors, 787 A.2d 1105, 1108 (Pa.Cmwlth. 2001) petition for allowance of appeal denied, 568 Pa. 740, 798 A.2d 1291 (2002).14 An abuse of discretion is found only when the board's findings are not supported by substantial evidence, which denotes such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Kightlinger v. Bradford Tp. Zoning Hearing Bd., 872 A.2d 234,237 (Pa.Cmwlth. 2005). 13 "[I]fthe record below includes findings off act made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence." 53 P.S. ~ 1l005-A 14 See also Larsen v. Zoning Board of Adjustment, 543 Pa. 415, 412, 672 A.2d 286,288-89 (1996) (It is well established that where neither the Court of Common Pleas nor the Commonwealth Court conducts a hearing or receives additional evidence that was not before the zoning board, the applicable standard of appellate review of the zoning board's determination is whether the zoning board committed a manifest abuse of discretion or an error of law in granting the variance. An abuse of discretion will only be found where the zoning board's findings are not supported by substantial evidence.). 4 III. DISCUSSION According to 53 P.S. S 10910.2 the Zoning Hearing Board may grant a variance if and when each of the following findings is present in a given case: (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 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. As it is clear that Appellant has not sufficiently established elements 2 and 4 of this standard, this Court finds that the denial of the variance was in fact proper and affirms the Board's decision. A. Element 2: Unnecessarv Hardship and Reasonable Use of the Propertv Appellant contends that, due to the unique character of the property, there is no possible way to increase the amount of parking spaces to satisfy the parking requirements imposed by the Zoning Ordinance and that therefore the Ordinance causes undue hardship to the Appellant. 15 15 See Brief in Support of Appellant's Land Use Appeal pp. 10 5 The hardship exception is triggered only when it is shown that compliance with the zoning ordinance could render the property practically useless. Polonsky v. Zoning Hearing Bd of Mount Lebanon, 139 Pa. Cmwlth. 579, 590 A.2d 1388, 1391 (1991). In asserting its argument, Appellant disregards the fact that the Ordinance was satisfied when the premise was used as a Dry Cleaning facility, which only required three parking spaces as opposed to the seven required for a restaurant. One cannot argue that an ordinance renders a property useless if the property had previously complied with the same ordinance simply by renting to a different type of business operation. Appellant has not established that it would be unnecessarily burdened by renting to a tenant which operates a less intense business and which requires less parking Perhaps more importantly, Appellant previously applied for a variance in 1992, and was aware of the limited amount of available parking, and yet still elected to lease to restaurateur. Appellant knew of its responsibility to contact the Board if a change of business would affect off-street parking and yet did not do so when such a change occurred. The record is not clear as to Appellant's intentions and reasons in not obtaining a construction permit or in failing to notify the Board of the parking changes, but one could persuasively argue that such conduct evidences bad faith. Finally, it is not for the Township to adjust its requirements due a landlord's irresponsibility in renting out property to an operation for which there is notably not sufficient parking. The landlord is responsible for adhering to the local ordinances which are in place for the protection of the public and cannot expect the law to vary for the sheer reason that he or she wishes to rent to a particular type of business organization, 6 unless that is the only type of business for which the property is appropriate - which is not the case at hand. There are a multitude ofless-intensive business operations that require less parking than a restaurant, several of which have in fact previously occupied the premises.16 Therefore, while Linlo may be unable to rent the Suite to a restaurant or a more intense operation, it is still able to lease the premises and put the property to use.17 B. Element 4: Public Detriment Little needs to be said in regards to this element. Neither party disputes that the area at issue is already deficient in available parking. Testimony at the Zoning Hearing Board hearing supports the conclusion that the addition of another restaurant will further clog an already congested area and prove to be a fire hazard. Appellant has stated that there is no possibility for adding additional parking, and its attempts to add additional parking obstructed necessary fire lanes, thus the issuance of the variance would clearly prove to be a detriment to public safety.18 The protection of public safety, regardless of whether all the other elements of the statute were clearly satisfied, warrants a rejection of a variance. The Board's denial of the requested variance was therefore appropriate. 16 Less intensive uses include a bank, office, personal services, general retail, and a grocery or convenience store. See Brief of Appellee pp. 5. 17 Although irrelevant in light of the fact that two of the five elements are obviously unestablished by Appellant, according to the above analysis, the hardship complained of is one created by the landlord who desires to rent to an inappropriate tenant. Therefore, element 3 would also be left unsatisfied. 18 Appellant contends that most of the customers walk to the restaurant. However, there is little evidence to support this argument and such an assumption carries little weight when balanced against the need for public safety. 7 IV. CONCLUSION Because the property can reasonably be used in compliance with the zoning ordinance by renting the premise to a less intense business, and considering the increased public danger the requested variance would create, it is the opinion of this Court that the Appellant has failed to establish the five necessary elements required by 53 P.S. S 10910.2. Therefore, the Board did not commit a manifest abuse of discretion or an error of law and its denial of the parking variance is affirmed. 8 ORDER OF COURT AND NOW, this 6th day of October, 2006, the Land Use Appeal is dismissed and the decision to reject the application for the parking variance by the Zoning Hearing Board is affirmed. By the Court, M.L. Ebert, Jr., 1. 9