              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Selvaggio and                    :
Teresa Selvaggio,                        :
                         Appellants      :
                                         :
                   v.                    :
                                         :
Palmer Township Zoning                   :
Hearing Board and Nicholas               :   No. 1867 C.D. 2017
Pugliese and N. Pugliese, Inc.           :   Argued: September 18, 2018


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge (P.)
            HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: October 11, 2018

            Stephen     and   Teresa   Selvaggio   (Applicants)   appeal   from   the
Northampton County Common Pleas Court’s (trial court) November 15, 2017 order
denying Applicants’ appeal from the Palmer Township Zoning Hearing Board’s
(ZHB) decision. The sole issue presented by the Applicants is whether the ZHB
properly determined that Applicants’ requested variance was a use variance, thereby
requiring heightened scrutiny. After review, we affirm.
            On or about February 14, 2017, Applicants submitted a Zoning Hearing
Application (Application) concerning property located at 3106-3142 William Penn
Highway, Palmer Township, Northampton County, Pennsylvania (Property). The
Property comprises two parcels. The western parcel (Tract 1) is developed and
consists of a shopping center known as the Rosemont Shopping Center. Tract 2 had
been previously developed as a retail establishment, but all improvements were razed
approximately 13 years ago.1 It is now a vacant lot. There is a common boundary
line between Tracts 1 and 2, which also acts as a zoning line. Tract 1 is zoned
General Commercial (GC) and Tract 2 is zoned High Density Residential (HDR).
Both lots are also included in the William Penn Highway Overlay District (Overlay
District). In their Application, Applicants proposed to combine the two tracts into
one parcel, permitting the site to be developed as one homogenous development,
using the same access to William Penn Highway, shared parking and shared utilities.
              Applicants sought four variances from the Palmer Township Zoning
Ordinance (Ordinance): (1) a variance from Section 190-262.B(1.) of the Ordinance
which limits ground floor commercial to 1,500 square feet. Applicants’ proposed
layout consisted of 3,500 square feet over the two tracts, of which 2,340 square feet
ground commercial would be in the HDR District; (2) a variance from Section 190-
168.G(3) of the Ordinance which requires parking spaces to be set back ten feet from
a non-residential principal building. Applicants’ proposed layout provided for a five-
foot setback between the proposed principal building and the parking area; (3) a
variance from Section 190-265.A(1)(b) of the Ordinance which requires a 20-foot
rear yard buffer. Applicants’ proposed configuration provided for a 13-foot rear yard
buffer; and (4) a variance from Section 190-53.B of the Ordinance which provides for
a maximum impervious coverage in the HDR District at 70% and a minimum
landscape coverage of 30%. Applicants’ proposed layout in the HDR District was
78.9% for impervious coverage and 21.1% for landscaping.
              The ZHB conducted a hearing on April 4, 2017. By April 13, 2017 letter
opinion (ZHB Decision), the ZHB granted Applicants’ variance requests concerning
Section 190-168.G(3) of the Ordinance (parking spaces); Section 190-265.A(1)(b) of

       1
         The deeds reflect that Applicants purchased the properties in June of 1999 and March of
2000, respectively. Applicants’ Application indicates that Applicants attempted to develop the
Property over ten years ago and submitted a prior Land Development Application to Palmer
Township in 2006, which Applicants ultimately withdrew.
                                               2
the Ordinance (rear yard buffer); and Section 190-53.B of the Ordinance (impervious
coverage and minimum landscape coverage). The ZHB denied Applicants’ variance
request for relief from Section 190-262.B(l.) of the Ordinance concerning ground
floor commercial space not exceeding 1,500 square feet. Applicants appealed from
the ZHB’s Decision to the trial court. On November 15, 2017, the trial court, without
taking additional evidence, denied Applicants’ appeal. Applicants appealed to this
Court.2
              Applicants argue that the ZHB erred by classifying the variance request
for relief from Section 190-262.B(l.) of the Ordinance concerning ground floor
commercial space not exceeding 1,500 square feet as a use variance requiring
heightened scrutiny. Section 190-262 of the Ordinance provides:
              Permitted by right uses.
              A. Uses shall be permitted in the . . . Overlay District as
              defined within the respective base zoning districts.
              B. Additional uses permitted by right within the boundaries
              of the . . . Overlay District shall include:

       2
             In an appeal from a trial court’s order affirming a decision of a zoning
             hearing board, where the trial court takes no additional evidence, our
             review is limited to considering whether the zoning hearing board
             abused its discretion or erred as a matter of law. The zoning hearing
             board abuses its discretion when it issues findings of fact that are not
             supported by substantial record evidence:
                   Substantial evidence is such relevant evidence that a
                   reasonable mind might accept as adequate to support a
                   conclusion. The [z]oning [h]earing [b]oard as fact finder is
                   the ultimate judge of credibility and resolves all conflicts in
                   the evidence. If the [z]oning [h]earing [b]oard’s findings of
                   fact are based upon substantial evidence, those findings of
                   fact are binding upon this Court for purposes of appellate
                   review.
               Eichlin v. Zoning Hearing Bd. of New Hope Borough, 671 A.2d 1173,
               1175 (Pa. Cmwlth. 1996).
In re Bartkowski Inv. Grp., Inc., 106 A.3d 230, 237-38 (Pa. Cmwlth. 2014) (citation omitted).


                                                 3
            (1) Buildings containing commercial and/or office uses on
            the ground floor and residential and/or office uses on the
            upper floors. Ground floor commercial uses shall be
            limited to 1,500 square feet.

Supplemental Reproduced Record (S.R.R.) at 20b (text emphasis added). Although
“[b]uildings containing commercial and/or office uses on the ground floor and
residential and/or office uses on the upper floors[]” are permitted in the Overlay
District, they are restricted to a 1,500 square foot limit for ground floor commercial
uses. S.R.R. at 20b. Here, the portion of the Property in the HDR District is 840
square feet over the 1,500 square foot maximum. Thus, the need for the variance.
            This Court has explained:
            A ZHB may grant a variance when the following criteria are
            met:
                (1) an unnecessary hardship will result if the
                variance is denied, due to the unique physical
                circumstances or conditions of the property; (2)
                because of such physical circumstances or
                conditions the property cannot be developed in strict
                conformity with the provisions of the zoning
                ordinance and a variance is necessary to enable the
                reasonable use of the property; (3) the hardship is
                not self-inflicted; (4) granting the variance will not
                alter the essential character of the neighborhood nor
                be detrimental to the public welfare; and (5) the
                variance sought is the minimum variance that will
                afford relief.
            Taliaferro [v. Darby Twp. Zoning Hearing Bd.], 873 A.2d
            [807,] 811–12 [(Pa. Cmwlth. 2005)].
            A dimensional variance involves a request to adjust
            zoning regulations to use the property in a manner
            consistent with regulations, whereas a use variance
            involves a request to use property in a manner that is
            wholly outside zoning regulations. Hertzberg v. Zoning
            Bd. of Adjustment of the City of Pittsburgh, . . . 721 A.2d 43
            ([Pa.] 1998). The same criteria apply to use and
            dimensional variances. Id. However, in Hertzberg, our

                                          4
               Supreme Court set forth a more relaxed standard for
               establishing unnecessary hardship for a dimensional
               variance, as opposed to a use variance.

Tri-Cty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa.
Cmwlth. 2014) (emphasis added).
               Here, the ZHB found
               that the variance being sought by the Applicants from
               Section 190-262.B [of the Ordinance] is akin to a use
               variance and that by granting such a variance the [ZHB]
               would be allowing the Applicants to undertake a
               commercial use in an HDR District which under the current
               terms of the [O]rdinance is prohibited based upon the
               maximum allowable square footage of 1,500 square feet.

ZHB Decision at 7, Finding of Fact 42. Applicants assert that because they are
seeking an increase in footprint size, their request is for a dimensional variance.3
While this Court may agree with Applicants that they are requesting a dimensional
variance, this does not end our inquiry. The law is well-settled that with respect to a
dimensional variance,
               [a]lthough Hertzberg eased the requirements for a
               [dimensional] variance, it did not remove them. Moreover,
               despite a more relaxed standard, it is still the case that ‘[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).

Pequea Twp. v. Zoning Hearing Bd. of Pequea Twp., 180 A.3d 500, 507 (Pa.
Cmwlth. 2018) (citation omitted). Thus, we must determine whether Applicants have




       3
         This statement is the entirety of Applicants’ argument on this issue. See Applicants’ Br. at
9. The remainder of Applicants’ brief discusses the alleged basis for granting the requested
variance.
                                                 5
met the relaxed standard for establishing hardship, as well as the other criteria as set
forth in Section 190-215.E(3)(b) of the Ordinance.
               Section 190-215.E(3)(b) of the Ordinance provides:

               Standards. The [ZHB] may grant a variance only within the
               limitations of state law. (As of 1993, the Municipalities
               Planning Code [(MPC)4] provided that all of the following
               findings must be made, where relevant:
               [1] 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 located.
               [2] Because of such physical circumstances or conditions,
               there is no possibility that the property can be developed in
               strict conformity with the provisions of the [] [O]rdinance
               and that the authorization of a variance is therefore
               necessary to enable the reasonable use of the property.
               [3] Such unnecessary hardship has not been created by the
               appellant.
               [4] 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] 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.

Original Record at B-2 (emphasis added); see also Section 910.2(a) of the MPC,
added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §
10910.2(a). With respect to the above criteria, the ZHB stated:

      4
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
                                                 6
              44. The [ZHB] finds that the Applicants failed to produce
              evidence to show that because of any unique physical
              circumstances of the [P]roperty that the [P]roperty could not
              be developed either in accordance with the permitted use
              [S]ection under Section 190-48 [of the Ordinance5] or not
              meet the maximum square footage for a commercial use
              within an HDR District.
              45. The [ZHB] further finds that there was no evidence
              provided that the [P]roperty could not be developed in strict
              conformity with the provisions of the . . . [O]rdinance in
              order for reasonable use of the [P]roperty to occur because
              of any such physical circumstances or conditions.
              46. The [ZHB] finds that no hardship was shown to exist
              upon the [P]roperty to be developed within the parameters
              of the . . . [O]rdinance.
              47. Moreover, the [ZHB] finds that the variance, if
              authorized, would create a larger general commercial area
              within an HDR District in close proximity to residential
              dwellings that could have detrimental impact on said
              residents’ use.
              48. Finally, the [ZHB] finds that the variance, if authorized,
              does not represent the minimum variance that will afford
              relief and represent the least modification possible of the
              regulation at issue.
              49. Indeed, the plans of the Applicants show that the overall
              general commercial floor space that the Applicants seek is
       5
         Section 190-48 of the Ordinance provides:
               Permitted by right uses. [Amended 2-15-2000 by Ord. No. 282]
               A. The following uses in the HDR District shall be permitted with or
               without central water and sewer services, within the requirements of
               Article XX:
               Single-family detached dwelling.
               Crop farming and orchard.
               Nature preserve.
               Golf course.*
               Publicly owned recreation or Township-owned facility.
               Place of worship,* with a minimum lot area of two acres.
               Forestry. [Added 2-19-2001 by Ord. No. 2001-299]
S.R.R. at 13b (emphasis added).


                                                7
            3,500 square feet with 2,340 being in the HDR District.
            The [ZHB] finds that no showing was made by the
            Applicants that they could not reconfigure their building
            and place more square footage in the general commercial
            end of the tract, thereby reducing the square footage within
            the HDR portion.

ZHB Decision at 7-8.
            Applicants presented Daniel Witczak (Witczak), a professional engineer
with Acela Engineering, who testified with respect to the permitted uses in the HDR
District:
            [Q.] In your opinion as a professional engineer, is that
            [P]roperty there suitable for development with a single-
            family detached dwelling?
            A. From a practical side, you could probably make that
            work.

Reproduced Record (R.R.) at 16a. This testimony alone supports the ZHB’s finding
of fact 44. Concerning the hardship, Witczak further explained:
            I do want to say what we did is we took this building, the
            proposed building, and shifted it as far as we could to the
            west, trying to minimize the amount of the building in the
            [Overlay D]istrict -- excuse me -- in the HDR [D]istrict and
            put as much of that building as we could in the [GC
            District].

R.R. at 35a-36a.
            This Court has held:
            Although Hertzberg sets forth a more relaxed standard for a
            dimensional variance, it does not stand for the proposition
            that ‘a variance must be 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); see also Singer
            (quoting Yeager). Additionally, it has been the law of this
            Commonwealth that the mere desire for more space does
                                         8
            not establish the requisite unnecessary hardship for a
            variance. See Larsen v. Zoning [Bd.] of Adjustment of City
            of Pittsburgh, . . . 672 A.2d 286, 290 ([Pa.] 1996) (ruling
            that the zoning board erred as a matter of law in granting a
            dimensional variance where the applicants sought a
            variance to construct a 400-square foot deck in order to
            provide a play area for their child, because the ‘mere desire
            to provide more room for a family member’s enjoyment
            fails to constitute the type of ‘unnecessary hardship’
            required by the law of this Commonwealth’); see also
            McClintock v. Zoning Hearing [Bd.] of Fairview Borough, .
            . . 545 A.2d 470 ([Pa. Cmwlth.] 1988) (denying a
            dimensional variance where the property could be used for
            a one-car garage instead of a two-car garage); Vito v.
            Zoning Hearing [Bd.] of Borough of Whitehall, . . . 458
            A.2d 620 ([Pa. Cmwlth.] 1983) (finding no hardship to
            grant a dimensional variance to build an addition to an
            existing two-car garage where the property was useable in
            its present condition).

Pequea Twp., 180 A.3d at 507-08.
            In the instant case, Witczak described how the parcel’s irregularity
affected the placement of the parking spaces and buffer, as well as the amount of
impervious coverage.     Witczak also discussed why a residential townhouse or
apartment complex would be affected by the Property’s physical location, i.e., with
respect to the insertion of a driveway. However, he provided no “substantial, serious
and compelling” reasons for granting the variance from Section 190-262.B(1.) of the
Ordinance which limits ground floor commercial to 1,500 square feet. Pequea Twp.,
180 A.3d at 507. Witczak did not attest, nor attempt to explain, how the Property’s
physical circumstances or conditions prevented the building from being constructed
within the permitted square footage or at the very least why the additional 840 square
feet was necessary. For this reason, notwithstanding whether the variance is a use
variance or a dimensional variance, Applicants did not meet their “heavy” burden to
show the variance from Section 190-262.B(1.) of the Ordinance should be granted.


                                          9
Id. Accordingly, the ZHB did not abuse its discretion or err as a matter of law in
denying Applicants’ requested variance therefrom.
            For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Selvaggio and                   :
Teresa Selvaggio,                       :
                         Appellants     :
                                        :
                   v.                   :
                                        :
Palmer Township Zoning                  :
Hearing Board and Nicholas              :   No. 1867 C.D. 2017
Pugliese and N. Pugliese, Inc.          :


                                      ORDER


            AND NOW, this 11th day of October, 2018, the Northampton County
Common Pleas Court’s November 15, 2017 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
