ZAPPALA GROUP v. Zoning Hearing Bd.

• Citation: 810 A.2d 708
• Parties: ZAPPALA GROUP, INC., Agents for Pine Creek Properties, L.P., Appellant, v. The ZONING HEARING BOARD OF THE TOWN OF McCANDLESS.
• Decision Date: 14 November 2002
• Court: Commonwealth Court of Pennsylvania

810 A.2d 708

ZAPPALA GROUP, INC., Agents for Pine Creek Properties, L.P., Appellant, v. The ZONING HEARING BOARD OF THE TOWN OF McCANDLESS.

Commonwealth Court of Pennsylvania.

Argued October 8, 2002.

Decided November 14, 2002.

As Amended November 15, 2002.

Kevin G. McKeegan, Pittsburgh, for appellant.

J. Howard Womsley, Pittsburgh, for appellee.

BEFORE: PELLEGRINI, Judge, FRIEDMAN, Judge, and KELLEY, Senior Judge.

OPINION BY Judge PELLEGRINI.

Zappala Group, Inc., Agents for Pine Creek Properties, L.P., (Pine Creek) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) affirming the decision of the Zoning Hearing Board of the Town of McCandless (Board) denying Pine Creek's request for variances needed to construct office buildings on property located in the Town of McCandless (Town).

On October 3, 2000, Pine Creek submitted a proposal to the Board seeking to build two three-story office buildings connected by an atrium, having a combined square footage of 42,760 square feet and parking for 143 vehicles on an 8.75 acre tract of land in the Town.¹ The property is a steeply sloped vacant tract of which 5.7 acres would need to be disturbed for the proposed construction; 3.9 acres of the property has slopes of 25% or more and 2.9 acres of the property has slopes of 16% to 25%. Slopes of over 20% are considered marginal for development.

Under the Town's Zoning Ordinance (Zoning Ordinance), the property is zoned D-Development District. The construction of office buildings is a permitted use in the D-Development District,² but a site capacity analysis is required to determine intensity of use prior to development of any property in the district. Pursuant to Section 1314.03(a) of the Zoning Ordinance, a site capacity analysis requires an applicant to (1) determine the base site area, (2) determine the sensitive natural resources that shall be preserved and (3) determine the site capacity or buildable land based on the first two calculations. The Zoning Ordinance specifically provides that a goal of the zoning scheme is to preserve the natural topography and wooded slopelands of the area. Zoning Ordinance Section 1311.02(b). In applying this analysis, the parties agree that there is a base site area of 7.65 acres, a resource protection land of 5.47 acres, and buildable land of 2.18 acres. The only dispute between the parties is how much land may be disturbed during the construction process.

On October 24, 2000, the Land Use Administrator informed Pine Creek that based upon the Town's interpretation of certain sections of its Zoning Ordinance, he recommended that Pine Creek revise its application to the Town for its site plan as well as its application to the Board. Because the term "buildable land" was not defined in the Zoning Ordinance, Pine Creek filed a notice of appeal with the Board seeking an interpretation of the term "buildable land" in Section 1314.03(a) of the Zoning Ordinance, and requested variances so it could disturb more of the property than permitted in the Zoning Ordinance to construct its proposed building due to the slopes of the land alleging that "buildable land" represented a temporary calculation used to determine the actual limitations on development. In opposition, the Town contended that "buildable land" was the area of the base site minus the resource protection land, or 2.18 acres. As to the variances, Pine Creek requested that it be able to disturb 5.7 acres to construct its proposed building due to the slopes of the land, because it sought to create a buildable pad out of the slopes requiring 2:1 fill slopes and 1.5:1 cut slope. The Zoning Ordinance required a maximum of 4:1 fill slopes and 2:1 cut slopes. Zoning Ordinance § 1314.03(c).

Before the Board, Rob Robinson (Robinson), an architect at Urban Design Associates, testified that the intent of the Town in creating the D-Development District was to protect the natural resources sensitive to development such as forests, steep slopes, flood plains and streams. Robinson also testified that "buildable land" equals the area a developer is permitted to disturb, and, in this case, that area was only 2.18 acres. Relying on Robinson's testimony, the Board found that the term "buildable land" was not ambiguous, that it amounted to 2.18 acres of the subject property and voted to deny the requested variances because they would be a serious departure from the Zoning Ordinance due to the characteristics of the property, including the steep slopes and vegetative growth. Pine Creek appealed to the trial court, which affirmed the Board's decision. This appeal followed.³

Pine Creek first contends that the Board erred in interpreting "buildable land" to allow only disturbance of more than the buildable site, because that term is not defined in the Zoning Ordinance and its meaning was not clear, and, as the Board found, it must be construed to allow the broadest possible use of the land. It argues that the Board's interpretation would create a separate overall limitation on development beyond the express limitations of the Zoning Ordinance. While it is true that zoning ordinances are to be liberally construed to allow the broadest possible use of land, it is also true that zoning ordinances are to be construed in accordance with the plain and ordinary meaning of their words. Phillips v. Zoning Hearing Board of Montour Township, 776 A.2d 341 (Pa.Cmwlth.2001). Further, zoning ordinances should be construed in a sensible manner. Id.

We agree, though, with the Board that the term "buildable land" as that term is used in the Zoning Ordinance refers to the area that can be disturbed by the construction of the building. Under the Zoning Ordinance, a site capacity analysis is required under the D-Development District, the base site area, which is the total available area for development, and the resource protection area, which is the area that, due to slopes or other characteristics, is unable to be regraded or developed in any way, are calculated. Because it is so steeply sloped, the subject property has a resource protection area of 5.47 acres that cannot be disturbed. That area then is subtracted from the total base site area of 7.65 acres to arrive at the total "buildable land;" anything that remains is "buildable land," i.e., 2.18 acres that may be disturbed for development. If we were to decide otherwise would mean that part of the property that was designated resource protection area, because it was too steep, could be excavated, making the slope even more severe than the slope that previously existed, a result that is at odds with the whole intent of the zoning scheme—to preserve the natural topography and wooded slopelands of the area.

Pine Creek also contends that the Board erred in concluding that it requested use rather than dimensional variances because the requested variances did not involve non-permitted uses but involved dimension because they related to the topography of the property. Because the Board concluded that Pine Creek requested use variances, Pine Creek also contends that the Board abused its discretion in finding that it did not meet the requirements for granting its requested variances because it showed an "unnecessary hardship" under the lesser burden of proof for dimensional variances.

Whether an applicant is seeking a dimensional or use...