Paganico v. Zoning Hearing Bd. of the Municipality of Penn Hills

227 A.3d 949

Robert PAGANICO and Trona Paganico, Appellants

v.ZONING HEARING BOARD OF the MUNICIPALITY OF PENN HILLS

No. 9 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs August 30, 2019

Decided February 24, 2020

Anthony R. Sosso, Jr., Pittsburgh, for Appellants.

Katherine M. Gafner, Pittsburgh, for Appellee Veterans Place of Washington Boulevard.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COVEY¹

Robert and Trona Paganico (Objectors) appeal from the Allegheny County Common Pleas Court's (trial court) December 4, 2018 order affirming the Zoning Hearing Board of the Municipality of Penn Hills' (ZHB) decision granting Veterans Place of Washington Boulevard (Veterans Place) a use variance. The sole issue before this Court is whether the ZHB properly granted Veterans Place a use variance. After review, we affirm.

Veterans Place owns a triangular, approximately 3.7-acre parcel of vacant land, zoned R-1 residential, on Jefferson Road in Penn Hills (lot and block #539-N-172) (Property). The Property was a former sewage treatment facility, which is now a fill area. The Property has a 20- to 30-foot-wide sewer easement running through its center. It has varying topography that includes flat areas, sharp inclines and declines, and is covered with poorly compacted fill materials.

On February 28, 2018, Veterans Place's Executive Director Marlon Ferguson (Ferguson) filed a use variance application with Penn Hills' Code Enforcement Department. In his request, Ferguson sought permission on behalf of Veterans Place to renovate the Property to serve homeless veterans transitioning from homelessness to permanent residency. He specifically proposed to build a group care facility and 14 micro homes on the Property. Each micro home would provide approximately 500 square feet of living space for an individual veteran. A private drive servicing all homes would be accessible via Jefferson Road. The group care facility would consist of a 2-story, 7,000-square-foot building built on a slab, where Veterans Place would host events and outreach functions for the community, veterans associations and others as part of Veterans Place's mission.

On April 25, 2018, the ZHB held a hearing and voted unanimously in favor of granting Veterans Place's use variance application. On April 30, 2018, the ZHB issued its decision granting the use variance conditioned upon the planning commission's site plan approval. On May 25, 2018, Objectors appealed from the ZHB's decision to the trial court. On December 4, 2018, the trial court affirmed the ZHB's decision. Objectors appealed to this Court.²

Initially, Section 15.11(C) of the Penn Hills Ordinance (Ordinance) provides, in pertinent part:

No variance shall be granted unless the [ZHB] determines and fully describes in its findings, the following:

(1) That there are unique physical circumstances or conditions, including irregularity, 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 locate[d].

(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 this 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 app[licant].

(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.

Ordinance § 15.11.C.³

Objectors argue that Veterans Place has not satisfied the second (property cannot be developed) and fifth (minimum variance) requirements for a use variance. With respect to the second requirement, Objectors contend that the Property could be used for the construction of a single-family residence in accordance with the Ordinance. Veterans Place rejoins that it demonstrated that uses otherwise permitted by the Ordinance are not possible due to the unique features of the Property, or would only be possible at a prohibitive expense, which is the proper standard for a use variance.

[The Pennsylvania Supreme] Court has repeatedly made clear that in establishing hardship, an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose. On several occasions, we have reversed the Commonwealth Court when it had relied on such a standard for unnecessary hardship in reversing the grant of a variance. Showing that the property at issue is ‘valueless’ unless the requested variance is granted ‘is but one way to reach a finding of unnecessary hardship; it is not the only factor nor the conclusive factor in resolving a variance request.’ Rather, ‘multiple factors are to be taken into account when assessing whether unnecessary hardship has been established.’

Marshall v. City of Phila. , 626 Pa. 385, 97 A.3d 323, 330 (2014) (citations omitted) (quoting Hertzberg v. Zoning Bd. of Adjustment of the City of Pittsburgh , 554 Pa. 249, 721 A.2d 43, 48 (1998) ).

Here, Veterans Place's expert engineer, David Heath (Heath) testified:

Q. What do you see as the main challenge for any attempt to develop this particular [P]roperty?

A. Well, there's [sic] several site challenges when it comes to development. As discussed previously, the site or the [P]roperty itself is triangular in shape and it - essentially, a valley from the one point of the triangle towards the hypotenuse, which runs stream [sic]. It also has steep slopes on the opposite side of this proposed development that go to the adjacent street. There's [sic] also streams that come down from that street, drainage that enter there.

Also, some of the soils --- fill site has a bad name, but this was not properly --- the fill was not properly compacted, there was no oversight. So the material that we encountered is very large construction materials in terms of concrete, paving experiencing voids.

Q. Are there any economic challenges to developing this [P]roperty in accordance with the uses allowed under the [O]rdinance?

A. Well, this type of fill is problematic, and a little excerpt from our geo-technical investigation; we did some test moorings just January 23rd of this year for the micro homes site. We experienced [9] to 32 feet of fill, varying compressibility, without undercut and backfill seem to provide a more mutual variant subgrades with the potential for detrimental differential foundation and force that floor slab settlement to exist. Such settlements could result in cracking foundations, walls, uneven floors, out of plum trim and finishes. The cost of the undercut and backfill [ ] for a single family dwelling, would be disproportionate compared to the proposed community center.

Supplemental Reproduced Record (S.R.R.) at 146b-148b. Heath expounded:

Q. So I would ask you to please go through each of these uses and explain why they're either not possible, due to the physical nature of the [P]roperty, or they're not possible because conforming into a use would be cost prohibitive?

A. Okay. First permitted use; single[-]family residence. Based on the fill of the --- that I previously discussed, the burden of over excavation render [ ] significant[ ] site costs to an individual home. It would also be prohibitive the way the [sewer easement] is run, it's running through the property, it renders very little developmentable [sic] property for a home.

So that's where it would stand with [a] single[-]family [home].

S.R.R. at 150b.

The ZHB determined:

Heath[ ] reviewed the other legal uses of the land and concluded that none of the other uses could be developed in compliance with the [Ordinance].

The [ZHB] found his testimony competent and credible. Residential uses were not possible because of the expense of correcting the improper placement of fill on the site and because there is [a] sewer easement through the center of the [P]roperty, the same problem applies to other residential uses.

ZHB Dec. at 3. Accordingly, the ZHB's conclusion that the Property could not be developed in accordance with the Ordinance due to the Property's physical circumstances or conditions is supported by substantial evidence.

Concerning the fifth requirement, Objectors contend that substantial evidence does not support the ZHB's conclusion that the use variance is the minimum variance necessary to afford relief and represents the least modification possible of the Ordinance.

With respect to whether a use variance is the minimum variance necessary to afford relief, this Court has explained:

[W]e will address the [ ] argument that the trial court erred in affirming the [zoning board of adjustment's (ZBA) ] grant of the variance because the [applicant] did not request the minimum variance necessary. The [objector] contends that the variance that the ZBA granted improperly exceeds the minimum variance necessary to afford relief to [the applicant]. We note, however, that this minimization requirement contained in both the [Pennsylvania Municipalities Planning Code⁴ (]MPC [) ] and the [Philadelphia ] Zoning Code appears to pertain more to dimensional variance requests .... The rule of minimization has clear application in the context of a dimensional variance , because an applicant should be entitled to a modification of a dimensional

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