             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Milner                                   :
                                                :
                       v.                       :   No. 62 C.D. 2019
                                                :   ARGUED: November 12, 2019
Bristol Township Zoning                         :
Hearing Board                                   :
                                                :
Appeal of: Lawrence P. Warren                   :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                       FILED: December 12, 2019


                Lawrence P. Warren (Applicant) appeals from an order of the Court of
Common Pleas of Bucks County (trial court) reversing the decision of the Bristol
Township Zoning Hearing Board (ZHB) to grant his 2015 application for
dimensional variances for construction of a 20-by-40 foot addition to Pines Tavern
(Tavern or Property).1 We affirm.2
                Previously owned by Applicant’s parents, the Tavern is located on an
irregularly shaped lot at 6217 Radcliffe Street in Bristol Township’s C Commercial
zone.      In 1994, Applicant’s parents applied for a variance from the setback

    1
        The ZHB and Bristol Township join in Applicant’s brief.
    2
      The ZHB entered two decisions granting the application, the first without Robert Milner
(Neighbor) and the second with him. The second decision was the result of Neighbor’s first land
use appeal and the trial court’s decision to remand the matter to the ZHB. Following Neighbor’s
second land use appeal, the trial court deemed the first one to be moot in light of the ZHB’s
decision to permit Neighbor to participate.
requirements found in the Bristol Township Zoning Ordinance (Ordinance) for
construction of a 22-by-44 foot addition to the existing structure to expand the
kitchen facilities and add a take-out center. Robert Milner (Neighbor), who resides
at 6304 Radcliffe Street three houses down from the Tavern but on the opposite side
of the street, opposed the request. The trial court reversed the ZHB’s decision to
grant Applicant’s parents’ application, concluding that they “failed to present
substantial evidence to support the [ZHB’s] finding of undue hardship due to the
irregular shape of the land and the necessity of a variance to enable the reasonable
use of the property.” (Trial Court’s Decision 17, 2018, Op. at 2.)
              In 2015, Applicant filed the instant application for dimensional
variances under the Ordinance “to expand existing business.” (Id.) In general, he
proposed keeping the existing bar area and adding sit-down seating for seniors and
families.3 Specifically, he sought additional space to provide dry storage of food
items due to flooding in the current storage area as required by the Bucks County
Board of Health, to provide a separate and ADA-compliant dining area for the
changed customer base, and to expand the kitchen to accommodate the change in
business from a bar to a restaurant. (ZHB’s July 27, 2017, Decision, Finding of Fact
“F.F.” No. 30; Reproduced Record “R.R.” at 255-56.)
              Turning to the specifics of the requested dimensional variances, Section
205-37 E.(2) of the Ordinance requires a minimum of fifteen feet for each side yard
and Section 205-130.A requires a special setback of eighty feet for designated
roadways, including Radcliffe Street. (R.R. at 364 and 447.) If granted, the
variances “would result in a minimum side yard of 3 feet, 5.5 inches and a setback
of 42 feet[,] 3 inches or less from Radcliffe Street.” (Trial Court’s Op. at 2.)

    3
     Both sit-down restaurants and taverns are permitted as of right in the C Commercial District
under Section 205-36 of the Ordinance. (Reproduced Record “R.R.” at 361.)


                                               2
               In November 2015, the ZHB held a hearing at which Applicant and his
architect testified. Neighbor was not afforded notice and did not appear at the
hearing.4 Subsequently, Neighbor filed a December 2015 land use appeal. In the
interim, the ZHB issued a February 2016 decision granting Applicant’s application.
In February 2017, the trial court remanded the matter to the ZHB to address notice,
Neighbor’s outstanding request to participate, and the alleged res judicata effect of
the prior decision on the current application.5 As a result, the ZHB held three
hearings at which both Neighbor and Applicant testified. Neighbor’s complaints
pertained to noise from traffic, music, and patrons. (ZHB’s July 27, 2017, Decision,
F.F. No. 34; R.R. at 256.)
               In July 2017, the ZHB once again granted the application but with
additional findings of fact and conclusions of law. In August 2017, Neighbor filed
a second land use appeal. Without taking additional evidence, the trial court reversed
the ZHB’s decision. Applicant’s appeal to this Court followed.
               On appeal, we consider whether the ZHB erred in granting the
application for dimensional variances. Where, as here, the trial court takes no
additional evidence, we are limited to determining whether the ZHB committed an
error of law or made findings of fact which are not supported by substantial evidence.


    4
      Neighbor did not belong to any of the categories of persons outlined in Section 205-189 of
the Ordinance to whom Applicant was required to provide written notice of a scheduled hearing.
(ZHB’s July 27, 2017, Decision at 5-6; R.R. at 256-57.)
    5
      The trial court affirmed the ZHB’s determination that res judicata was inapplicable, noting,
inter alia, the passage of time, the non-identity of issues and parties, and the fact that the law
applicable to unnecessary hardship for dimensional variances has changed. See Hertzberg v.
Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998). The doctrine of res
judicata in zoning cases generally will be applied very narrowly “because the need for flexibility
outweighs the risk of repetitive litigation.” Callowhill Ctr. Assocs., LLC v. Zoning Bd. of
Adjustment, 2 A.3d 802, 809 (Pa. Cmwlth. 2010).


                                                3
Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43, 46 (Pa.
1998) (Hertzberg); Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d
500, 504 (Pa. Cmwlth. 2018). Substantial evidence is defined as relevant evidence
that a reasonable mind might accept as adequate to support a conclusion. Id. If the
record contains substantial evidence, this Court is bound by the ZHB’s findings that
result from the resolution of credibility and conflicting testimony. Pohlig Builders,
LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260, 1266 (Pa. Cmwlth.
2011). In other words, it is the ZHB’s function to weigh the evidence before it and
we may not substitute our interpretation. Id. “It is the function of the [ZHB] to
determine whether the evidence satisfies the criteria for granting a variance.”
Marshall v. City of Phila., 97 A.3d 323, 331 (Pa. 2014). However, this determination
is a conclusion of law over which the courts exercise plenary review.
              The five factors an applicant generally must demonstrate to establish
entitlement to a use or dimensional variance are set forth in Section 910.2 of the
Pennsylvania Municipalities Planning Code (MPC).6 They may be summarized as
follows:
              a. unique physical conditions peculiar to the property have
              created an unnecessary hardship;
              b. those peculiar conditions make it impossible to develop
              the property in strict compliance with the ordinance and a
              variance is necessary to enable the reasonable use of the
              property;
              c. the applicant did not create the unnecessary hardship;
              d. the grant of the variance will not be detrimental to the
              public welfare; and



    6
      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.


                                             4
             e. the variance sought is the minimum variance that will
             afford relief and the least deviation from the ordinance
             provision at issue.

53 P.S. § 10910.2.
             In Hertzberg, our Supreme Court, while generally applying the above
criteria to dimensional variances, opined that, in certain circumstances, courts might
employ a relaxed application of those factors when considering dimensional
variances. The Court reasoned that dimensional variances differed significantly
from use variances, because applicants seeking dimensional relief within an area
where a use is permitted are "asking only for a reasonable adjustment of the zoning
regulations in order to utilize the property in a manner consistent with the applicable
regulations." 721 A.2d at 47. Nonetheless, “[t]he burden on an applicant seeking a
variance is a heavy one, and the reasons for granting the variance must be substantial,
serious and compelling.” Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144,
149 (Pa. Cmwlth. 2011). In addition, notwithstanding that an application is for a
dimensional variance, “[t]he same criteria apply to use and dimensional variances,”
meaning that “[a]n applicant must still present evidence as to each of the conditions
listed in the zoning ordinance, including unnecessary hardship.” Tidd v. Lower
Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa. Cmwlth. 2015).
             In accordance with the MPC, the ZHB considered the following
pertinent standards from its Ordinance in considering Applicant’s application for
dimensional variances:

                   (a) That the granting of the variance shall be in
             harmony with the general purpose and intent of this
             chapter and shall not be injurious to the neighborhood or
             otherwise detrimental to the public welfare.
                   ....


                                          5
                    (c) There must be proof of unique circumstances;
            that there are special circumstances or conditions, fully
            described in the findings, applying to the land or building
            for which the variance is sought, which circumstances or
            conditions are peculiar to such land or building and do not
            apply generally to land or buildings in the neighborhood,
            and that said circumstances or conditions are such that the
            strict application of the provisions of this chapter would
            deprive the applicant of the reasonable use of such land
            or building.
                    (d) There must be proof of unnecessary hardship. It
            is not sufficient proof of hardship to show that greater
            profit would result if the variance were granted.
            Furthermore, hardship complained of cannot be self-
            created; . . . it must result from the application of this
            chapter [the Ordinance].
                    (e) That the granting of the variance is necessary
            for the reasonable use of the land or building and that the
            variance as granted by the [ZHB] is the minimum variance
            that will accomplish this purpose.

(Section 205-186.C(2)(a) and (c)-(e) of the Ordinance; R.R. at 485-86)(emphasis
added).
            In determining that Applicant met the above factors, the ZHB found as
follows:
                   17. In [the 1990s], [t]he . . . customer base consisted
            of blue-collar workers, most of whom worked at nearby
            industries and frequented the Property to consume alcohol
            after work.
                   18. During that time period, food made up only ten
            (10) percent of . . . sales.
                   19. During that time period, [the Tavern] had five
            or six menu items.
                   20. In the [2000s] and through today, [t]he . . .
            customer base includes families that live in the area and
            senior citizens from a nearby senior housing development
            who frequent the Property to dine with their families and
            their children.

                                          6
                      21. Food sales now make up nearly 50% of . . . sales.
                      22. The . . . Tavern now has a four[-]page menu.
                      23. The dimensions of the . . . kitchen are the same
               as they were during the [1990s], namely 10 feet by 15 feet.
                      24. The . . . Tavern currently stores dry goods for
               food service in the basement . . . .
                      25. The basement is prone to flood due to the
               Property’s proximity to the Delaware River.
                      26. The Bucks County Board of Health has required
               Applicant to store the dry goods for food service
               elsewhere.

(ZHB’s July 27, 2017, Decision, F.F. Nos. 17-26; R.R. at 254-55.)
               Accordingly, the ZHB rendered the following conclusions of law:7

                      25. Applicant has proven that the requested variance
               will not be contrary to the public interest and that hardship
               will result if it is not granted.
                      26. The granting of the variance will not be
               injurious to the neighborhood or otherwise detrimental to
               the public welfare.
                      27. Rather, the granting of the variance will enable
               Applicant to properly and safely operate [the Tavern] as a
               family restaurant.
                      ....
                      30. Applicant has proven unique circumstances in
               that the business . . . has substantially changed, essentially
               requiring the requested variance for modernization and for
               the reasonable use of the Property for a family restaurant.
                      31. Applicant has proven unnecessary hardship in
               that the lack of dry storage, the size of the kitchen[,] and
               the lack of a family dining room necessary to service
               Applicant’s current customer base is [sic] creating an


    7
      Applicant acknowledges that the doctrine of natural expansion is inapplicable to his appeal.
(Applicant’s Br. at 12 n.1.) Accordingly, we do not address the ZHB’s Conclusion of Law No. 28
pertaining to that doctrine.


                                                7
             unnecessary hardship and may be remedied by granting
             the Application.
                    32. Applicant cannot comply with the Bucks
             County Board of Health requirements concerning the
             storage of dry food goods in the current configuration.
                    33. The granting of the Application is necessary for
             the reasonable use of the Property and the building thereon
             as a family restaurant and the variance is the minimum
             variance that will accomplish this purpose.
                    ....
                    40. Applicant has proven hardship beyond
             economic considerations and the granting of the
             Application will allow the reasonable use of the Property.

(ZHB’s July 27, 2017, Decision, Conclusions of Law “C.L.” Nos. 25-27, 30-33, and
40; R.R. at 260-62.)
             Like the MPC, the Ordinance requires that unique circumstances be
“peculiar to such land or building and do not apply generally to land or buildings in
the neighborhood . . . and that said circumstances . . . are such that the strict
application of the [Ordinance] would deprive the applicant of the reasonable use of
such land or building.” (Section 205-186.C(2)(c) of the Ordinance; R.R. at 486.)
The ZHB determined that the changed neighborhood, clientele, and need for
modernization constituted unique circumstances warranting the variances for the
reasonable use of the Property. However, the changed neighborhood was not
peculiar to Applicant’s land or building. In addition, notwithstanding the irregular
shape of the lot, Applicant failed to establish unique physical circumstances
attending and peculiar to the Property preventing him from continuing to make
reasonable use of it as a bar.
             Turning to the issue of unnecessary hardship, Section 205-186.C(2)(d)
of the Ordinance provides that “[i]t is not sufficient proof of hardship to show that


                                         8
greater profit would result if the variance were granted.” (R.R. at 486.) In addition,
the hardship complained of must result from the application of the Ordinance. (Id.)
As noted, the ZHB determined that Applicant proved hardship beyond economic
considerations. In so doing, it neither referenced any ordinance provisions nor found
economic hardship. Nonetheless, it seemed to consider the potential for greater
profit with the requested variances. However, there was no evidence that the Tavern
could not continue to be viable as a bar. In addition, Applicant in his application
asserted that the variances were necessary “to expand existing business.” It is well
established that a property that is too small to accommodate expansion of a permitted
use in order to increase profitability does not constitute an unnecessary hardship
warranting a dimensional variance. E.g., Soc’y Hill Civic Ass’n v. Phila. Zoning Bd.
of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012) (rejecting applicants’ request for
dimensional variance from loading space requirement where need for variance
triggered by desire to expand use of property to maximize profitability). Notably,
Applicant acknowledged that since he took over the Tavern from his parents,
“[b]usiness [has been] okay.” (April 13, 2017, ZHB Hearing, N.T. at 50; R.R. at
79.) Accordingly, the fact that greater profit could result if the variances were
granted does not establish the requisite unnecessary hardship.
             We turn next to the ZHB’s determination that Applicant proved the
requisite unnecessary hardship because he established hardship beyond economic
considerations due to the changed neighborhood, clientele, and need for
modernization. As an initial matter, the alleged hardship does not result from
application of the Ordinance. Instead, the focus is on Applicant’s personal wish to
add the permitted use of a sit-down restaurant to the permitted use of the existing
bar. Notably, Hertzberg does not stand for the premise that “a variance must be



                                          9
granted from a dimensional requirement that prevents or financially burdens a
property owner’s ability to employ his property exactly as he wishes, so long as the
use itself is permitted.” Yeager v. Zoning Hearing Bd. of the City of Allentown, 779
A.2d 595, 598 (Pa. Cmwlth. 2001) (emphasis in original). “[A] substantial burden
must attend all dimensionally compliant uses of the property, not just the particular
use the owner chooses.” Id. Here, adherence to the Ordinance simply imposes a
burden on Applicant’s desire to add additional sit-down seating. Accordingly, the
ZHB erred in determining that Applicant’s proof of hardship beyond economic
considerations constituted the requisite unnecessary hardship.
             With respect to the criterion that the requested variances be the
minimum that would afford relief, there was evidence supporting the need for a new
food storage area and ADA-compliant bathrooms. However, as noted by the trial
court, Applicant did not establish that the variances requested were the minimum
necessary to afford relief for those purposes. With respect to the frequently flooded
food storage area, the ZHB found that “Applicant [could not] comply with the Bucks
County Board of Health requirements concerning the storage of dry food goods in
the current configuration.” (C.L. No. 32; R.R. at 261.) However, Applicant avoided
stating any precise dimensions for the proposed dry food storage area, characterizing
the size as “kind of fluid.” (N.T. at 45; R.R. at 74.) As for the family seating area
and bathrooms, Applicant acknowledged that he considered numerous scenarios in
making changes to the Tavern–some of which included converting the existing bar
area into a sit-down restaurant and merely enlarging the existing bathrooms. (N.T.
at 48-49; R.R. at 77-78.) However, even though he characterized his proposed plan
as the best one, the record lacks evidence that the requested variances were the




                                         10
minimum that would afford relief. Accordingly, the ZHB erred in determining that
Applicant satisfied the “minimum relief” criterion.
               In conclusion, the requested variances do not constitute a reasonable
adjustment of the zoning regulations necessary in order to use the Property
consistently with the applicable regulations. Hertzburg, 721 A.2d at 47. We agree
with Applicant and the ZHB that the proposed changes would not be detrimental to
the public welfare, but rather would be beneficial to the neighborhood. However,
we do not have discretion to ignore the strict requirements of the MPC, even for a
good cause. Applicant is making reasonable use of the Property as it is, even though
the limited seating for seniors and families seemingly makes it less profitable and,
although he has established the need to make certain changes for health and ADA
compliance reasons, he has not shown that these changes require the extensive
modification of dimensional requirements requested.
               Accordingly, we affirm.8




                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    8
       Given our determination that the ZHB erred in concluding that Applicant met three of the
requisite criteria necessary for the dimensional variances, we need not address public detriment as
it relates to any parking concerns.


                                                11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Milner                        :
                                     :
                 v.                  :   No. 62 C.D. 2019
                                     :
Bristol Township Zoning              :
Hearing Board                        :
                                     :
Appeal of: Lawrence P. Warren        :


                                ORDER


           AND NOW, this 12th day of December, 2019, the order of the Court of
Common Pleas of Bucks County is hereby AFFIRMED.




                                   _____________________________________
                                   BONNIE BRIGANCE LEADBETTER,
                                   Senior Judge
