Sweeney v. Zoning Hearing Bd. of Lower Merion Tp.

• Decision Date: 01 June 1993
• Citation: 626 A.2d 1147,534 Pa. 197
• Parties: Harry A. and Maryrita SWEENEY and the Haverford Civic Association, Appellees, v. The ZONING HEARING BOARD OF LOWER MERION TOWNSHIP, Appellant, and Philadelphia Properties, Inc. and Lower Merion Township, Appellant/Intervenors. Appeal of PHILADELPHIA PROPERTIES, INC.
• Court: Pennsylvania Supreme Court

Page 1147

626 A.2d 1147

534 Pa. 197

Harry A. and Maryrita SWEENEY and the Haverford Civic Association, Appellees, v. The ZONING HEARING BOARD OF LOWER MERION TOWNSHIP, Appellant and Philadelphia Properties, Inc. and Lower Merion Township Appellant/Intervenors Appeal of PHILADELPHIA PROPERTIES, INC.

Supreme Court of Pennsylvania.

Argued Dec. 6, 1991.

Decided June 1, 1993.

[534 Pa. 199] Joel P. Aaronson, Pittsburgh, for appellant.

James K. Brengle, Haverford, for Sweeney, et al.

Robert S. Ryan, Philadelphia, for Zoning Hearing Bd. of Lower Merion Tp.

Gilbert P. High, Jr., Norristown, for Lower Merion Tp.

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

NIX, Chief Justice.

Appellant, Philadelphia Properties, Inc. ("Properties"), appeals from the Order of the Commonwealth Court affirming the Order of the Court of Common Pleas of Montgomery County, sitting en banc, reversing a decision by the Zoning Hearing Board of Lower Merion Township ("Board"), which, in part, granted Properties a variance to extend automobile parking into an area zoned R-2 Single Family Residential District. 132 Pa.Cmwlth. 548, 573 A.2d 664. The issue presented in this case is whether, where the purpose of the relief sought is to improve and expand Properties' apartment buildings and parking lot, Properties' nonconforming use should be considered an important factor in determining if an unnecessary hardship exists that would justify the grant of a variance. For the reasons that follow, we reverse the Order of the Commonwealth Court and remand the case to the Zoning Hearing Board of Lower Merion Township.

Properties is the owner of land bisected by a zoning district boundary line. The boundary line divides the land so that a portion of the land is in the R-7 Multifamily Residence District and a portion of the land is in the R-2 Single Family Residential District.

Approximately sixty years ago, two apartment buildings containing 128 units and 102 parking spaces were constructed on the portion of land zoned R-7 Multifamily Residence District, which allows parking lots. In the R-2 Single Family Residential District, the Lower Merion Code does not allow parking facilities serving occupants of more than one residence. In 1981, Lower Merion Township passed a zoning ordinance requiring two parking spaces per apartment unit; thus, Properties' apartment complex became nonconforming as to parking. Lower Merion Code § 155-95(a). ¹

In 1988, Properties planned to rehabilitate the property through renovation of the buildings and expansion of parking into the portion of the land zoned R-2 Single Family Residential District. Consequently, on June 1, 1988, Properties requested relief from the Board to allow Properties to build an open air parking lot on most of the land designated R-2 Single Family Residential District in order to properly support the apartment units. Specifically, Properties requested approval for a 100 foot extension of the R-7 Multifamily Residence District into the R-2 Single Family Residential District. ² Properties also requested a variance for additional parking inside the remaining R-2 Single Family Residential area. Additionally, Properties proposed to reduce the number of apartment units and to construct eight townhouse units.

On September 8, 1988, the Board denied Properties' applications without prejudice to assert such claims for relief as it may wish to assert in connection with any revised plans which it may prepare. Properties revised its plans and submitted an application for special exception and variance, but abandoned the plan to install eight townhouses. On February 9, 1989, the Board granted Properties' request to permit extension of the R-7 Multifamily Residence District over the R-2 Single Family Residential District for the full 100 feet permitted by Lower Merion Code § 155-8. ³ Properties' application for variance to convert most of the remaining R-2 Single Family Residential District portion of land to apartment parking was denied as requested. However, the Board granted an alternative variance which allowed Properties to utilize the R-2 Single Family Residential District portion of land for parking in connection with the apartment buildings, provided that the parking lot be at least eighty feet from the bordering street and that Properties comply with several buffer devices.

Appellees, Harry A. and Maryrita Sweeney and the Haverford Civic Association, appealed the Board's decision to the Montgomery County Court of Common Pleas. The Court of Common Pleas, receiving no additional evidence, affirmed the special exception granted by the Board, ⁴ but reversed the alternative variance. The Court of Common Pleas found that the property had an ample use as zoned, and thus, there was no existing hardship warranting a variance. Properties appealed the denial of the alternative variance to the Commonwealth Court. The Commonwealth Court affirmed the Court of Common Pleas on the grounds that Properties did not suffer any unnecessary hardship under the circumstances. Properties appealed to this Court and we granted allocatur. 527 Pa. 606, 589 A.2d 695 (1991).

Appellees argue that the Board committed a manifest abuse of discretion and an error of law in granting the variance allowing Properties to expand the parking lot across a zoning district boundary into a zoning district for single-family residences which does not allow parking facilities serving occupants of more than one residence. They argue that nothing less than a showing of hardship which is special and peculiar to the property will empower a Zoning Hearing Board to permit a variance. Magrann v. Zoning Bd. of Adjustment, 404 Pa. 198, 170 A.2d 553 (1961). They state that a variance should be granted only when it is not contrary to the public interest and when the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance. Id. at 200, 170 A.2d at 554. They assert that the authority of the Board is not an arbitrary one and it may grant a variance only for reasons that are substantial, serious and compelling. Id.

Properties argues, conversely, that the Board did not abuse its discretion or commit an error of law in granting the variance allowing the expansion of the parking lot into the R-2 Single Family Residential District. Properties submits that the expansion was necessary for the functioning and viability of the restored and modernized nonconforming apartment complex.

In addressing this matter, this Court is guided by a well established standard of review. Where neither the Court of Common Pleas nor the Commonwealth Court conducted a hearing or received any evidence in this matter, this Court is to determine whether the Board committed an abuse of discretion or an error of law in granting Properties a variance. Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). This Court can conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. Id. at 555, 462 A.2d at 640. By "substantial evidence" we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

In 1927, this Court first enunciated what is now commonly referred to as the "Natural Expansion Doctrine." See In re Gilfillan's Permit, 291 Pa. 358, 140 A. 136 (1927). In that case we stated that "as the property was then used for lawful purposes, the city was without power to compel a change in the nature of the use, or prevent the owner from making such necessary additions to the existing structure as were needed to provide for its natural expansion and the accommodation of increased trade...." Id. at 362, 140 A. at 138. Later, we stated that " 'a non-conforming use cannot be limited by a zoning ordinance to the precise magnitude thereof which existed at the date of the ordinance; it may be increased in extent by natural expansion and growth of trade, neither is it essential that its exercise at the time of the ordinance was enacted should have utilized the entire tract upon which the business was being conducted.' " Mack Zoning Appeal, 384 Pa. 586, 588-89, 122 A.2d 48, 50 (1956) (quoting Humphreys v. Stuart Realty Corp., 364 Pa. 616, 621, 73 A.2d 407, 409 (1950)). See also Philadelphia Art Alliance v. Philadelphia Zoning Bd. of Adjustment, 377 Pa. 144, 149, 104 A.2d 492, 494 (1954); In re 501 Paxinosa Ave., 367 Pa. 340, 345, 80 A.2d 789, 791 (1951).

However, the right of expansion is not unlimited. Silver v. Zoning Bd. of Adjustment, 435 Pa. 99, 103, 255 A.2d 506, 507 (1969). In Silver we stated that "[t]he contemplated expansion must not be detrimental to the public health, welfare and safety. We have never questioned the right of a municipality to impose reasonable restrictions on the expansion of a non-conforming use." Id. at 102, 255 A.2d at 507.

Moreover, if the portion of land at issue was not used in furtherance of the nonconforming use prior to the ordinance rendering the use nonconforming, then the appropriate remedy would be to obtain a variance. See Mack Zoning Appeal, 384 Pa. 586, 122 A.2d 48 (1956); In re Pierce Appeal, 384 Pa. 100, 119 A.2d 506 (1956). ⁵ The requirements to obtain a variance are embodied in section 912 of the Pennsylvania Municipalities Planning Code, 53 Pa.C.S. § 10912. ⁶ Those requirements are:

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or 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...