Paganico v. Zoning Hearing Board of Municipality of Penn Hills, 022420 PACCA, 9 C.D. 2019

Docket Nº:9 C.D. 2019
Opinion Judge:ANNE E. COVEY, Judge
Party Name:Robert Paganico and Trona Paganico, Appellants v. Zoning Hearing Board of the Municipality of Penn Hills
Case Date:February 24, 2020
Court:Commonwealth Court of Pennsylvania

Robert Paganico and Trona Paganico, Appellants


Zoning Hearing Board of the Municipality of Penn Hills

No. 9 C.D. 2019

Commonwealth Court of Pennsylvania

February 24, 2020

Submitted: August 30, 2019



ANNE E. COVEY, Judge 1

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., 97 A.3d 323, 330 (Pa. 2014) (citations omitted) (quoting Hertzberg v. Zoning Bd. of Adjustment of the City of...

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