Bernotas v. Zoning Hearing Bd. of Bethlehem

• Decision Date: 29 July 2013
• Citation: 68 A.3d 1042
• Parties: Al BERNOTAS, Walter Ward, and Guishu Fang, Appellants v. ZONING HEARING BOARD OF the CITY OF BETHLEHEM and Ghassan G. Elias, d/b/a Elias Market.
• Court: Pennsylvania Commonwealth Court

68 A.3d 1042

Al BERNOTAS, Walter Ward, and Guishu Fang, Appellants
v.
ZONING HEARING BOARD OF the CITY OF BETHLEHEM and Ghassan G. Elias, d/b/a Elias Market.

Commonwealth Court of Pennsylvania.

Argued March 11, 2013.
Decided June 7, 2013.
Reargument Denied July 29, 2013.

[68 A.3d 1045]

David M. Backenstoe, Hellertown, for appellants.

Joseph J. Piperato, III, Bethlehem, for appellees Ghassan G. Elias and Elias Market.

Mickey K. Thompson, Whitehall, for appellee Zoning Hearing Board of the City of Bethlehem.

BEFORE: LEADBETTER, Judge, and COHN JUBELIRER, Judge, and LEAVITT, Judge.

OPINION BY Judge LEADBETTER.

Al Bernotas, Walter Ward, and Guishu Fang (Objectors) appeal from the orders of the Court of Common Pleas of Northampton County (trial court) that affirmed the decisions of the Zoning Hearing Board of the City of Bethlehem (Board) granting Ghassan G. Elias (Applicant), d/b/a Elias Market, variances and a special exception to allow an expansion of the nonconforming use of his property. The Objectors question whether Applicant established entitlement to the requested expansion of the nonconforming use. We affirm.

I.

Applicant is the co-owner of a 1.82–acre lot located at the intersection of Johnston Drive and State Route (S.R.) 191 (Linden Street) in the City of Bethlehem (City). S.R. 191 is a busy arterial street separating the medium density residential zoning district to the east and the R–R Rural Residential zoning district to the west where Applicant's lot is located. The original structure on the lot was constructed in 1870. There are currently three buildings

[68 A.3d 1046]

on the lot: a main building consisting of 11,067 square feet, and two outbuildings consisting of 2217 and 1152 square feet. The outbuildings are located 10 to 12 feet north of the main building. The larger outbuilding recently sustained fire damages and has been condemned and scheduled to be demolished. There are 85 parking spaces on the lot. The main building is accessed from Johnston Drive and S.R. 191, and the outbuildings have a separate access from S.R. 191 through a loop road. There are single-family dwellings on the west and north of the lot, apartment buildings on the east across S.R. 191, and a church and a vacant lot on the south across Johnston Drive.

Applicant purchased the subject property in 2006 and has operated a farmers' market/grocery store, known as Elias Market, in the main building. Although the record is unclear when such use was established on the lot, it is undisputed that Elias Market is a preexisting nonconforming use under The Zoning Ordinance of the City of Bethlehem (Ordinance), enacted to be effective September 25, 1970 and amended in March 2008.¹ Article 1323, Section 1323.03 of the Ordinance provides that “[t]he lawful use of any building, any structure or the lawful use of any land existing at the effective date of this Ordinance may be continued although such use does not conform with the provisions of this Ordinance except as otherwise provided in this Article.”

Prior to Applicant's purchase, the former owners expanded the nonconforming use on the lot by 50% after obtaining special exceptions pursuant to Section 1323.04 of the Ordinance, which provides in relevant part:

A lawful nonconforming use or structure shall only be expanded if the following requirements are met:

(a) The total building floor area or total land area occupied by the nonconforming use or structure, whichever is more restrictive, shall not be increased by greater than 50 percent beyond the area that existed at the time the use or structure first became nonconforming.

(1) The 50 percent maximum shall be measured in aggregate over the entire life of the nonconformity. Therefore, for example, if a use became nonconforming in 1971, and was expanded by 20 percent in 1980, then one 30 percent expansion would be permitted today.

(2) These provisions apply regardless of whether the use or structure is expanding within an existing building or an addition.

(b) Special exception approval shall be required, except that a one-time expansion of up to 5 percent of the nonconforming first floor building footprint in existence as of the adoption date of this [O]rdinance shall be permitted by right.

(c) Any expansion of a nonconforming use or structure shall meet all required setbacks and all other requirements of this Ordinance. No new nonconformity shall be created. [Emphasis added.]

In July 2009, Applicant appealed the zoning officer's denial of his zoning permit application to the Board and sought a variance from Section 1323.04(a) of the Ordinance. He proposed to construct an enclosed loading dock, an enclosed ramp and a warehouse on the lot, which would increase the existing nonconforming use by another 50% from 14,436 to 19,279 square

[68 A.3d 1047]

feet. Because the proposed construction would increase the total building coverage on the lot to 24.32%, Elias also requested a variance from the 15% maximum building coverage for the R–R zoning district where his property is located.

Before the Board, Stephen Pany, Applicant's engineer who prepared the proposed plan, testified as follows. The subject lot slopes downward from west to east with the floor of the main building a few feet higher than S.R. 191, and the area of the outbuildings 4 to 6 feet higher than the floor of the main building. The current loading dock located between the main building and the western outbuilding is very short, narrow and three and one-half feet deep, and does not drain. It “acts like a big sump to catch water” and accumulates ice in winter. August 26, 2009 Hearing, Notes of Testimony (N.T.) at 33; Reproduced Record (R.R.) at 46a. Due to the unsafe condition, Elias Market's employees are prohibited from using the loading dock and must unload tractor trailers on the parking lot and use handcarts to bring produce to the store.

Under the proposed plan, an enclosed loading dock and an enclosed 80–foot ramp will be constructed on the northwest corner of the lot, and a 20–foot high warehouse will be constructed mainly on the footprint of the outbuildings. The floor of the loading dock will be raised three and one-half feet above the floor of the main building. Pany testified that the proposed location of the loading dock is the only location on the lot where tractor trailers can be maneuvered to a docking position. The warehouse will occupy approximately one third of the proposed 4843–square–foot expansion, and the enclosed dock and ramp will occupy another one third of the expansion. The remaining expansion will be used as a transition area between the warehouse and the main building. Pany stated that the proposed warehouse would replace the dilapidated outbuildings with a new, clean, modern and functional structure and would reduce the number of deliveries made to Elias Market. The trash receptacles currently located at the north end of the parking lot, 50 feet from the property line, will be relocated to the west end of the main building, 150 feet from the property line, and will be enclosed with a fence. The existing access to the lot from S.R. 191 will be eliminated. The proposed expansion complies with all the setback requirements.

George Azar, the co-owner of Elias Market, testified that Elias Market was required to store goods at its facility in Allentown due to a lack of storage space and that they were transported daily to Elias Market by a truck. Azar further testified that forklifts could not be used in the main building because of its low ceilings and that the proposed expansion would provide employees with a safer, cleaner and more spacious workplace without increasing the store area.

The Objectors, who own adjacent residential properties, testified expressing their concerns over Elias Market's handling of dumpsters, its loading and unloading of tractor trailers, a trailer parked on the sidewalk, and noises from garbage collections in early morning hours.

The Board granted the requested variances at the conclusion of the hearing and subsequently issued a written decision. The Board first noted the relaxed standard applicable to a dimensional variance. The Board concluded that Elias established unnecessary hardship resulting from the unique conditions of the property. The Board found that Applicant's lot is a corner lot and suffered from “severe elevation changes due mainly to the excavation of Route 191.” Board's October 7, 2009 Decision at 13; R.R. at 192a. The Board further

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found that the existing loading dock was narrow, steep, insufficient and unusable in the inclement weather; there was no room in the main building for use of forklifts; the proposed loading dock and ramp would enhance the employees' safety and provide tractor trailers with better access to Elias Market; the proposed warehouse would provide Elias Market with more storage space without increasing the size of the store; the expansion would not adversely impact the neighborhood; and, the proposed structures would reduce “eye pollution,” noises and the number of deliveries made to the store and eliminate an access to the lot from S.R. 191. Id. The Board imposed five conditions to the grant of variances. It directed Applicant to provide additional buffering and landscaping along the western property line, not to change the operating hours, not to expand the retail space and the warehouse, and to have trash picked up after 8:00 a.m. The Objectors appealed the Board's decision, and the City Council intervened in the appeal.

The trial court affirmed the grant of variances. The court concluded that the dimensional variance standard applied to Applicant's application and that Applicant met all the criteria required for the requested variances under Section 910.2(a) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a), and Section 1325.06(c) of...