Siya Real Estate LLC v. Allentown City Zoning Hearing Bd.

210 A.3d 1152

SIYA REAL ESTATE LLC, Appellant

v.ALLENTOWN CITY ZONING HEARING BOARD

No. 1001 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: December 13, 2018

Filed: May 31, 2019

Mark Malkames, Allentown, for appellant.

David Vaida, Allentown, for appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE FIZZANO CANNON

Siya Real Estate LLC (Landowner) appeals from an order of the Court of Common Pleas of Lehigh County (trial court), dated June 21, 2018 and filed June 22, 2018, which affirmed the decision of the Allentown City Zoning Hearing Board (Board) denying Landowner's application for a special exception.

Landowner owns property located at 248 North 9th Street, Allentown. See Board's Findings of Fact (F.F.) 1. The property is located in a medium high density residential district as well as a traditional neighborhood development overlay (TNDO) district. F.F. 3. The neighborhood is primarily residential with commercial uses located on many corner properties. F.F. 3. The second floor of the property consists of a four-bedroom dwelling unit and the third floor contains five boarding rooms. F.F. 4. The property also contains a detached garage with three parking spaces. Id. For decades, the first floor of the property has been used for various commercial purposes, most recently a tap room. Id. (The first floor of the property will be referred to as the Subject Premises). The tap room closed on or about December 3, 2012. F.F. 6.

Landowner filed an application for a special exception, seeking to convert the first floor of the property to a retail grocery store and deli. F.F. 1; Reproduced Record (R.R.) at 1a-6a. Retail use is permitted in the TNDO district as a special exception. Section 1314.02.C.4 of the Allentown Zoning Ordinance (Zoning Ordinance).¹ Landowner also requested, in the alternative, a variance to establish the use. R.R. at 6a.

Viral (a.k.a. Sam) Patel (Patel) testified on behalf of Landowner. See 12/18/17 Notes of Testimony (N.T.) at 2 & 6, R.R. at 10a & 11a. Patel testified that Landowner proposes to use the Subject Premises as a grocery store with a deli counter for take-out sandwiches. N.T. at 21, R.R. at 14a; see F.F. 7. No tables or chairs will be provided. F.F. 7; N.T. at 21, R.R. at 14a. The proposed hours of operation would be Monday through Friday from 7:00 a.m. to 8:00 p.m. and Saturday and Sunday from 8:00 a.m. to 8:00 p.m. F.F. 8. Patel testified that approximately 100-150 customers per day would be expected at the Subject Premises and would be serviced by one to two employees. F.F. 10. Patel also testified that the primary users of the store will be people from the neighborhood. N.T. at 25, R.R. at 15a. Patel testified that the maximum number of employees at any one time would be two during the evening hours. N.T. at 22, R.R. at 15a. Patel stated that he would dedicate the garages to parking for the employees. F.F. 9; N.T. at 23, R.R. at 15a. Patel also testified about deliveries to the store. He stated he would get milk and snacks once per week; he would bring the other materials himself. N.T. at 29, R.R. at 16a. Patel testified that there is nothing unusual about this grocery store and that there would not be any consequences to the neighborhood that one would not normally anticipate from a typical grocery store. N.T. at 36, R.R. at 18a. He stated that his store would not attract more people than a typical neighborhood grocery store. N.T. at 37, R.R. at 18a.

Landowner also offered the expert testimony of a licensed real estate agent/broker, who is also a licensed appraiser (Realtor). N.T. at 58-59, R.R. at 24a. The Realtor opined that the proposed use is the most appropriate use for the Subject Premises. F.F. 11.

Three neighbors testified in opposition to the proposed use. Shane Fillman (Fillman) testified that he walks his dogs in the neighborhood. N.T. at 75, R.R. at 28a. He expressed concern about the "number of bodegas/grocery stores, delis." N.T. at 76, R.R. at 28a. Fillman also expressed concern about litter. N.T. at 78, R.R. at 29a. He disagreed with Landowner's implication that a lot of people in the neighborhood walk and stated he sees a lot of people with vehicles. N.T. at 79-80, R.R. at 29a. Another neighbor, William Green (Green), expressed concern about the amount of trash that would be generated from the proposed use, although he conceded it would not generate any more trash than any other grocery store. N.T. at 83 & 85, R.R. at 30a. He also stated that there was no shortage of grocery stores in the area. N.T. at 83, R.R. at 30a. Green stated that he was concerned about quality of life and wanted to see something more aesthetically appropriate, pointing out that the property is part of the historic district. N.T. at 83, R.R. at 30a. Lastly, Marie Gehris (Gehris), the neighbor immediately next to the property, testified. N.T. at 86, R.R. at 31a. She complained about parking. N.T. at 86-87, R.R. at 31a. She also felt that there were enough grocery stores in the area and expressed concerns that the proposed use would create more trash. N.T. at 88-89, R.R. at 31a. She also testified about the prior owner, calling him a "riffraff guy," and stated people would urinate in front of her sidewalk. N.T. at 95, R.R. at 33a. She stated she has not had any problems since the Subject Premises was vacant. N.T. at 95, R.R. at 33a. (Fillman, Green and Gehris are collectively referred to as Objectors).

Subsequently, the Board issued its decision denying Landowner's special exception application. Board's Decision at 4, Order. The Board did not address Landowner's alternative request for a variance. With respect to the special exception, the Board found that Landowner met most of the applicable requirements for a special exception except for one, namely, the "total impact provision" found in Subsection (a)(3) of Section 1314.02.C.4 of the Zoning Ordinance. Board's Decision at 3. Subsection (a)(3) provides:

In considering whether to approve the special exception use, the Board shall consider whether the total impact upon the neighborhood and parking needed for all uses on the lot after the new use would be in operation would exceed the total impact of all uses on the lot that existed prior to the application. For example, this decision may consider whether the applicant proposes to reduce the number of dwelling units on the lot.

Zoning Ordinance § 1314.02.C.4(a)(3). The Board stated,

The Board believes because of the substantial customer activity expected by Applicant (100-150 customers per day) the total impact upon the neighborhood and parking needed for all uses on the lot after the new use would be in operation would substantially exceed the total impact of all uses on the lot that existed prior to the application.

Board's Decision at 3.

Landowner appealed to the trial court, which affirmed.² With respect to the requirement in Subsection (a)(3) at issue here, the trial court stated that the subsection does not require the proposed use to be objectively equivalent to or less than the prior use, but merely directs the Board to consider the total impact. Trial Court Opinion dated 8/3/18 at 10. The trial court then stated that the language of the subsection implies that the Board is "to use its discretion to weigh and evaluate the total impact on a subjective basis in conjunction with the other requirements for the issuance of a special exception." Id. The trial court stated that this conclusion is supported by the fact that Subsection (a)(3) refers to parking and "Subsection (a)(5) affords the Board the authority to modify off-street parking requirements ‘considering the total impact of the new uses of the lot versus the previous uses, and considering the number of customers arriving by public transit and/or walking.’ " Id. (quoting Zoning Ordinance § 1314.02.C.4(a)(5)).

The trial court then noted that the question became whether Landowner presented sufficient evidence to shift the burden to Objectors. Trial Court Opinion dated 8/3/18 at 10. The trial court stated that Landowner did not present any evidence indicating what the prior use of the lot as a bar generated in terms of traffic and how that compared to the proposed use, which Landowner's witness testified would generate 100-150 customers per day. Id. The trial court stated that the Board did not receive any evidence to determine whether this was an increase or decrease from the prior use. Id. The trial court also stated that neither Landowner nor the Realtor testified whether the proposed use would have a negative impact on parking. Id. at 11. The trial court concluded that the Board did not receive any evidence on the impact of the proposed use on traffic. Id. The trial court stated that in the absence of the presentation of the evidence, "the Board was left to speculate on the traffic impact." Id. at 12. The trial court concluded that Landowner failed to meet its burden, and therefore, the burden never shifted to Objectors. Id. at 11-12. With respect to Landowner's claim for a variance, the trial court acknowledged that the Board's decision did not address Landowner's variance request. Trial Court Opinion dated 6/21/18 at 13. However, the trial court concluded that because the proposed use is authorized under the ordinance, subject to Board approval, Landowner's variance request was not proper, and therefore, any error is harmless. Id. at 12-13.

Landowner now appeals to this Court.³ Before this Court, Landowner raises four issues: (1) did the Board and the trial court err in failing to apply the law pertaining to special exceptions that a zoning applicant has both the duty of presenting evidence and the burden of persuasion with respect to only the specific requirements of an ordinance; (2) did the Board and the trial court err in failing to apply the Zoning Ordinance as drafted, where the ordinance does not place any burden of proof...