Harding v. Harrisburg City Zoning Hearing Bd.

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Laura Harding, Appellant v. Harrisburg City Zoning Hearing Board v. Heinly Homes, LLC

No. 633 C.D. 2022

Commonwealth Court of Pennsylvania

August 9, 2024

OPINION NOT REPORTED

Submitted: January 5, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

CHRISTINE FIZZANO CANNON, Judge

Laura Harding (Appellant) appeals from the May 23, 2022 order (Trial Court Order) of the Court of Common Pleas of Dauphin County (Trial Court) that affirmed the decision of the Harrisburg City Zoning Hearing Board (Board) granting a use variance to build a parking lot on property owned by Heinly Homes, LLC (Heinly). Upon review, we reverse the Trial Court Order.

I. Background and Procedural Posture

The facts underlying this matter are straightforward and relatively simple. Heinly owns a 0.31-acre property located at 2218 Susquehanna Street in Harrisburg, Pennsylvania (Property). See Board Decision dated December 14, 2021 (Board Decision) at 4 (pagination supplied). Susquehanna Street is a 15-foot alleyway too narrow to permit on-street parking and two-way traffic. See Board Decision at 4, 8. The Property consists of a vacant lot with an existing impervious floor from a building previously located on the Property. See id. at 4. The Property is located within the City of Harrisburg's (City) Residential Medium Density zoning district (RM Zone) and lies within a 100-year floodplain. See id. Commercial parking lots are not permitted within the RM Zone. See Board Decision at 5; see also Section 7-305.7 of the City of Harrisburg, Pa., Zoning Code (2014) (Zoning Code), § 7-305.7.^[1]

Heinly applied for a variance on June 2, 2021 (Application), seeking to develop a surface parking lot on the Property. See Board Decision at 3. The Board conducted multiple hearings on the Application. See Board Decision at 3; see also Notes of Testimony, July 19, 2021 (N.T. 7/19/2021); Notes of Testimony, September 20, 2021 (N.T. 9/20/2021); and Notes of Testimony, November 15, 2021 (N.T. 11/15/2021) (collectively, Application Hearing).

At the Application Hearing, William Rothman testified before the Board on Heinly's behalf as an expert in commercial and residential real estate.^[2] See N.T. 11/15/2021 at 10-61. Rothman testified that he assessed the Property by analyzing the feasibility of both residential and commercial uses permitted within the RM Zone. See N.T. 11/15/2021 at 11-12, 15. Rothman stated that the Property's location within the 100-year floodplain would require the first floor of residential structures built there to be elevated above the level of the floodplain, as living areas in dwellings are not permitted to be within the floodplain. See N.T. 11/15/2021 at 16. Rothman testified that this restriction would require a residential structure to be constructed with an additional floor,^[3] greatly increasing construction cost and creating a building that was out of character with the rest of the neighborhood. See N.T. 11/15/2021 at 17. Rothman further testified that the Property's location on a narrow 15-foot adjoining street/alleyway - Susquehanna Street - would be looked upon negatively by the average homebuyer, making building residentially even less economically viable. See N.T. 11/15/2021 at 18. Rothman made the same observation regarding the Property's position facing garages. See 11/15/2021 at 21. Rothman also noted that the Property is not situated in a particularly desirable location within the City. See N.T. 11/15/2021 at 18-19. He explained that, therefore, building on the Property for residential purposes would not be economically feasible due to the difficulty of finding people willing to pay the prices required to build residential units at the Property's location. See N.T. 11/15/2021 at 18-19.

Rothman also discussed a community called Copper Ridge in nearby Lemoyne, Pennsylvania, as a point of comparison for what would be required to build on the Property residentially. See N.T. 11/15/2021 at 20-21; see also Rothman Letter to Heinly dated August 5, 2021 (Rothman Letter), attached as an exhibit to the Supplemental Narrative to the Application, Hearing Exhibit A-3, Reproduced Record (R.R.) at 19a-21a. Copper Ridge was constructed 8-15 years ago in a floodplain with units that had first floor garages and living areas that were elevated up two or three floors. See N.T. 11/15/2021 at 20-21. While units similar to those built at Copper Ridge would fit on the Property's footprint, Rothman explained that the price to develop and build such units on the Property would prove more expensive than the expected sale price for those units, and so would result in an economic loss. See N.T. 11/15/2021 at 20-21; see also Rothman Letter, R.R. at 20a-21a.

In sum, Rothman opined that residential development of the Property was not economically feasible and that a builder would not be able to break even by attempting to so develop the Property. See N.T. 11/15/2021 at 21; see also Rothman Letter at 3, R.R. at 21a.

Rothman reached the same conclusion regarding commercial development of the Property. See N.T. 11/15/2021 at 21. Rothman explained that commercial projects on the Property would face the same economic feasibility issues as residential projects, to wit: building in a floodplain, the narrowness of the street, and the undesirability of the area. See N.T. 11/15/2021 at 21-22. Rothman also noted additional issues that would make commercial construction of the Property difficult to undertake and unlikely to succeed upon completion. See N.T. 1/15/2021 at 22. Specifically, regarding business patronage, Rothman noted that not many vehicles travel on Susquehanna Street. See N.T. 11/15/2021 at 22. Regarding business operation, Rothman noted that the narrowness of Susquehanna Street presents additional commercial problems pertaining to delivery difficulties and customer parking concerns.^[4] See N.T. 11/15/2021 at 22.

Justin Heinly, Heinly's owner, also testified before the Board. Justin Heinly explained that, if the Application is approved, he intends to rent the parking spaces on the Property to the public and entities that he owns that need parking will go through the same application process as other members of the public to attain such parking. See N.T. 9/20/2021 at 46-47. Justin Heinly further testified that the area where the Property is located "is not a desirable location for someone to want residential property." N.T. 7/19/2021 at 95. Justin Heinly explained that, in addition to being in an undesirable part of the City, the Property has a view of only garages, utility sheds, and vacant lots. See N.T. 7/19/2021 at 95. He testified that these factors together, along with the Property's location in a floodplain, make the Property an untenable location for a housing project from a financial perspective. See N.T. 7/19/2021 at 94-95.

City Planning Director David Clapsaddle (Clapsaddle) testified before the Board on behalf of the City. See N.T. 7/19/2021 at 14-18. Clapsaddle reviewed the variance standards from Section 7-323.7(B) of the Zoning Code in relation to the Application and ultimately expressed the City's position that Heinly met its burden to demonstrate entitlement to a variance for the Property. See id. Clapsaddle testified that the roughed-in concrete covering the Property posed a hardship on the Property. See N.T. 7/19/2021 at 15-16. Clapsaddle further explained that placing a parking lot on the Property would be harmonious with the needs of the City in that it would provide a needed service to the neighborhood, to wit: off-street parking. See N.T. 7/19/2021 at 16-17. Accordingly, Clapsaddle expressed the support of both the City's Planning Commission and Planning Bureau for the grant of the Application, subject to certain conditions.^[5] See N.T. 7/19/2021 at 17-18.

Additionally, multiple members of the public appeared at the hearing and voiced their support for the Application to the Board. These members of the public included Wendell Hoover, a local resident who opined that a parking lot would be a good use for the Property; Jermaine Grant, a neighbor and local business owner who testified that the Property attracts a lot of crime and that developing it into a proper parking lot would benefit the community; and Angel Melendez, who rents a residence in the neighborhood and also testified that the Property as is attracts crime and that the area would be improved if it was cleaned up and better lighted. See N.T. 7/19/2021 at 22-30.

Appellant also testified before the Board to express her opposition to the variance proposed by the Application. See N.T. 11/15/2021 at 65-101. Appellant outlined for the Board a history of alleged environmental racism and testified that approval of the Application will be a continuation of historical injustices. See N.T. 11/15/2021 at 65-73. Appellant also testified about alleged parking violations and illegal accumulation and/or dumping of trash on the Property and submitted into evidence dozens of photographs allegedly documenting the same. See N.T. 11/15/2021 at 76-101; see also O-5 & O-6, Hearing Exhibits. R.R. at 47a-122a. Appellant further introduced into evidence a petition signed by 102 individuals who Appellant purported were opposed to the Application. See Exhibit C-1, Petition from Camp Curtin Neighborhoods United, R.R. at 32a-46a.

Based on the evidence, the Board concluded that Heinly sustained its burden of proof to establish the unnecessary hardship required to prove entitlement to a variance, that Heinly did not create the hardship, and that the variance will not alter the essential character of the neighborhood or be detrimental to the public welfare but would instead improve the...