              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zelienople Borough,                      :
                         Appellant       :
                                         :
                   v.                    :
                                         :
Zelienople Borough Zoning Hearing        :   No. 671 C.D. 2019
Board and Thomas G. Myers                :   Submitted: May 15, 2020


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: June 23, 2020

            Zelienople Borough (Borough) appeals from the Butler County Common
Pleas Court’s (trial court) April 17, 2019 order affirming the Zelienople Borough
Zoning Hearing Board’s (ZHB) decision granting Thomas G. Myers’ (Applicant)
application for a use variance. The Borough presents four issues for this Court’s
review, whether the record evidence established: (1) the requisite unnecessary
hardship; (2) that the unnecessary hardship was not self-created; (3) that the use
variance would not alter the essential character of the neighborhood nor be
detrimental to the public welfare; and (4) that the use variance is the minimum relief
necessary. After review, we affirm.
            On March 28, 2018, Applicant filed an application with the ZHB
requesting a use variance to construct a single-story duplex dwelling on two vacant
parcels of property located on South Jefferson Street in the Borough (Application).
The two lots, 550-S2-BC8 (BC8) and 550-S2-BC9A (BC9A) (Properties), are
currently separate parcels, but Applicant proposed to combine them into a single lot
for purposes of effectuating the requested variance. The Properties are located in an
R-3 Urban Residential Zoning District (R-3 District). A duplex is neither a permitted
nor a conditional use in an R-3 District under the Borough Zoning Ordinance
(Ordinance). On April 25, 2018, the ZHB held a public hearing, at which time the
ZHB orally voted to approve the Application, subject to certain conditions. A written
notice of the decision dated April 26, 2018, followed thereafter to Applicant. On
May 21, 2018, the Borough appealed from the ZHB’s decision to the trial court. On
April 17, 2019, the trial court dismissed the Borough’s appeal.                    The Borough
appealed to this Court.1
              Initially, it is axiomatic that “zoning ordinances are to be liberally
construed to allow the broadest possible use of land.” Light of Life Ministries, Inc. v.
Cross Creek Twp., 746 A.2d 571, 573 (Pa. 2000) (quoting Upper Salford Township v.
Collins, 669 A.2d 335, 336 (Pa. 1995)). Section 1502.4 of the Ordinance provides:

              The [ZHB] may grant a [v]ariance provided the following
              findings are made where relevant in a given case:
              A.     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 []
              [O]rdinance in the neighborhood or district in which the
              property is located;
              B.    that because of such physical circumstances or
              conditions, there is no possibility that the property can be
       1
          “In an appeal from a court of common pleas’ order affirming a decision of a zoning
hearing board, where the common pleas 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.”
DiMattio v. Millcreek Twp. Zoning Hearing Bd., 147 A.3d 969, 974 (Pa. Cmwlth. 2016). “The
zoning hearing board abuses its discretion when it issues findings of fact that are not supported by
substantial record evidence[.]” Id.


                                                 2
             developed in strict conformity with the provisions of the []
             [O]rdinance and that the authorization [] of a [v]ariance is
             therefore necessary to enable the reasonable use of the
             property;
             [C]. that such unnecessary hardship has not been created
             by the [applicant];
             [D]. that the [v]ariance if authorized, will not alter the
             essential character of the neighborhood or district in which
             the property is located, nor of adjacent property, nor be
             detrimental to the public welfare; and
             [E]. that the [v]ariance, if authorized, will represent the
             minimum [v]ariance that will afford relief and will
             represent the least modification possible of the regulation in
             issue. In granting any [v]ariance, the [ZHB] may attach
             such reasonable conditions and safeguards as it may deem
             necessary to implement the purposes of this act and the []
             [O]rdinance.

Ordinance 779, as amended, § 1502.4 (emphasis added).
             The Borough first argues that the record evidence is insufficient to
establish the requisite unnecessary hardship. Specifically, the Borough contends that
the record is devoid of any description of the Properties’ physical features or an
explanation of how any unique features might prevent Applicant from utilizing the
Properties for a use permitted under the Ordinance, and there is insufficient record
evidence to support the finding that the Properties can conform to the permitted use
of a single-family residence only at a prohibitive expense. Applicant rejoins that the
evidence establishes that, due to the unique physical features of the lots, the only way
to make reasonable use of the Properties is to consolidate the lots, and the Properties
cannot be reasonably used for any of the permitted or conditionally permitted uses in
the R-3 District.

             [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

                                           3
             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 Pittsburgh, 721 A.2d 43, 48 (Pa.
1998)). “It is the function of the [ZHB] to determine whether the evidence satisfies
the criteria for granting a variance. The [ZHB], as fact-finder, is the sole judge of
credibility.” Marshall, 97 A.3d at 331 (citation omitted).
             Here, Applicant testified:

             Q Would you describe the property that’s immediately
             north of these two lots?
             A Immediately north, now, that’s the –
             Q That’s the [American] Legion parking lot, is it not?
             A Yeah. Yeah. It’s a parking lot. And that’s a [Central
             Business District] parking lot.
             Q And then just immediately south of this, it’s a –
             A There is a – there is a rental, four-unit or five-unit rental
             building. So I’m really putting this in between the parking
             lot and that rental building, the yellow brick rental building.
             ...
Reproduced Record (R.R.) at 32a. Applicant further related:
             Q And [Applicant], the two lots, the lot BC8 is 50 by 140.
             Could you reasonably put a single family home on that? In
             this zoning district, the R-3 [District], the permitted use is a
             single[-]family residence. There are conditional uses,
             funeral home, school –

                                            4
            A Trailer.
            Q -- mobile home park. But these lots certainly don’t fit
            into that character. The only thing you could really do
            under the [] [O]rdinance here is put a single[-]family home.
            Is it practical to put a single[-]family home on a 50 by 140
            lot?
            A Well, I mean just on the setbacks that are required now,
            the width of the home would be like 20 feet. You know, so
            – and the one is under 6,000 square feet. And under the --
            and under the current R – what is it, R-3 [District], the lot
            has to be at least 6[,]000 square feet to put a single[-]family
            home on it. So, they would – . . . they would have to come
            back to the [ZHB] and ask for a variance both on the
            set[]backs and the size of the lot. And then, you know, I
            don’t know what kind of a – I mean I guess you could put a
            small home, [a] real small home on each one.
            ....
            Q Why not just buy both lots and put one single[-]family
            home on both lots?
            A Well you could do that. Somebody could do it. It’s been
            up [for sale] for four years and nobody’s done that. And
            there is a lot of cost involved. Because the cost of the lot
            and single[-]family home, you’re going to be in the
            $300,000[.00] range. And the question is, is somebody
            going to put that kind of money in that location in
            Zelienople. You know, and I don’t know the answer to that.

R.R. at 33a-34a.

            The ZHB made the following relevant findings of fact:
            9. Parcel BC8 is 50’ x 145’ x 49’ x 145’ or 7,154 square
            feet.

            10. Parcel BC9[A] is 44’ x 131’ x 44’ x 130’, or 5,720
            square feet.

            11. The proposed dwelling is 850 square feet per unit, or
            1,700 total square feet.



                                          5
              12. The cost of construction would be approximately
              $340,000.00.

              13. The [P]roperties are bounded on the north by an
              American Legion Parking Lot; on the south by a 4 or 5[-
              ]unit rental property.

              14. The lots have unique physical characteristics in that
              they are long, narrow, and irregular in shape.

              15. In order to build on the lots, variances would need to be
              granted as follows:

                  A. Lot [BC]9A consists of 5,714 square feet and is
                  less than the required 6,000 square feet for
                  construction of a dwelling.

                  B. Lot [BC]9A only has 44 feet at the building line
                  instead of the required 60 feet under the Ordinance.

                  C. Lot [BC]8 is only 50 feet at the building line
                  instead of the required 60 feet under the Ordinance.

                  D. As a result of the above, the lots would also
                  require building setback variances.

              16. The authorization of a variance is necessary for the
              reasonable use of the [P]ropert[ies].

              ....

              22. The characteristics of the area where the lots are
              located, the variances needed for development and the
              length of time that the lots have been for sale, including the
              variances required for development, show that the lots
              either have no value, or a distressed value.
R.R. at 61a-62a.      The ZHB determined: “Denying the variance will render the
[P]ropert[ies] of little or no value, not capable of reasonable development, and will
cause economic hardship to [] Applicant.”2 R.R. at 63a.

       2
         The Dissent contends: “Applicant failed to show that he cannot develop the larger
consolidated lot in strict conformity with the zoning ordinance without suffering an unnecessary
hardship.” Zelienople Borough v. Zelienople Borough Zoning Hearing Bd. (Pa. Cmwlth. No. 671
                                               6
              “We may conclude that the [ZHB] abused its discretion only if its
findings are not supported by substantial evidence, which [the Pennsylvania Supreme
Court] ha[s] defined as ‘relevant evidence which a reasonable mind would accept as
adequate to support the conclusion reached.’” Marshall, 97 A.3d at 331 (quoting
Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009)).
Because the ZHB’s conclusion “was within the bounds of reason and therefore
represented a sound exercise of discretion[,] . . . [t]here was no abuse of discretion
here.” Marshall, 97 A.3d at 334 (quoting E. Torresdale Civic Ass’n v. Zoning Bd. of
Adjustment of Phila. Cty., 639 A.2d 446, 447 (Pa. 1994)).
              The Borough next argues that record evidence did not establish that the
hardship was not self-created. Specifically, the Borough contends that the hardship is
unrelated to the physical characteristics of the Properties; rather, Applicant’s desire to
construct a duplex dwelling on the Properties caused the hardship.
              Based on Applicant’s above-quoted testimony, the ZHB found as a fact:
“Applicant did not create the unnecessary hardship.” R.R. at 61a. This Court agrees.
              Applicant’s desire to construct a duplex dwelling

              did not create a self-inflicted hardship forcing [Applicant]
              to seek [the] variance[] . . . . Instead, the evidence []
              advanced showed that [the] variance[] w[as] sought to
              overcome the hardships present from the Propert[ies’]
              [dimensions] and location near the [American Legion
              parking lot and the apartment building]. [Applicant]
              explained that the natural features of the Propert[ies]
              prevented the construction of [a single-family] dwelling,
              and [Applicant] stated that without zoning relief, [each lot]
              had only a small building envelope to construct a residence,
              a use that was otherwise permitted in the Propert[ies’] [R-3
              D]istrict. It is apparent that the hardship resulted from the
              natural conditions of the Propert[ies] rather than by

C.D. 2019, filed June 23, 2020) (Brobson J., dissenting), slip op. at 1. However, the above-quoted
testimony is substantial evidence supporting the ZHB’s above-quoted findings of facts establishing
said hardship.
                                                7
               [Applicant’s desire to construct a duplex dwelling], and []
               the [ZHB] . . . [did not] err[] in making this determination.

Solebury Twp. v. Solebury Twp. Zoning Hearing Bd., 914 A.2d 972, 977 (Pa.
Cmwlth. 2007).
               Next, the Borough asserts that Applicant did not present any evidence to
establish that the use variance would not alter the essential character of the
neighborhood nor be detrimental to the public welfare.
               To the contrary, Applicant testified:

               Q If you put a duplex there, . . . would that be consistent
               with the other dwellings that are in that [R-3 D]istrict?
               A Well, I mean, it would look very similar to what’s there.
               Because you’d have a thousand square feet on each side
               with a garage in the front. It would just – it would be nice.
               It would be nice looking. You know, right now, it’s just an
               empty lot. It would be as nice [] looking as the apartment
               building that it’s going to be right next to it [sic]. And I
               think, you know, there [are] a lot of smaller homes on that
               street . . . . So I think it would be in line with what’s in the
               neighborhood now and across the street as well.

R.R. at 34a.
               The ZHB found as a fact: “The variance will not change the essential
character of the neighborhood, nor will it impair the appropriate use or development
of adjacent properties, and it will not be detrimental to the public welfare.” R.R. at
61a. Because the record evidence reveals that the ZHB’s conclusion “was within the
bounds of reason and therefore represented a sound exercise of discretion[,] . . .
[t]here was no abuse of discretion here.” Marshall, 97 A.3d at 334 (quoting E.
Torresdale Civic Ass’n, 639 A.2d at 447); see also Liberties Lofts LLC v. Zoning Bd.
of Adjustment, 182 A.3d 513, 537 (Pa. Cmwlth. 2018) (holding “[n]o error is apparent
in the [zoning board of adjustment’s] determination that [a]pplicant’s proposed use
will not adversely affect the public safety, health or general welfare and will not


                                              8
permanently injure the use of adjacent conforming properties”); Domeisen v. Zoning
Hearing Bd. of O’Hara Twp., 814 A.2d 851, 858 (Pa. Cmwlth. 2003) (holding “[w]e
will not disturb the [zoning hearing board’s] finding of fact, which is supported by
the record[,]” that the variance would not be detrimental to the public welfare).
               Finally, the Borough argues that the record evidence did not establish
that the use variance is the minimum relief necessary. This Court has explained:

               [The] minimization requirement contained in both the
               [Pennsylvania Municipalities Planning Code3 (]MPC[)] and
               the [Ordinance] appears to pertain more to dimensional
               variance requests. . . . The rule of minimization has clear
               application in the context of a dimensional variance,
               because an applicant should be entitled to a modification of
               a dimensional zoning requirement only to the extent
               necessary to grant relief. Otherwise, an adjudicator or
               reviewing court could provide relief that goes beyond the
               necessity of curing an unnecessary hardship under the
               applicable zoning ordinance. In the context of a use
               variance, the criteria other than the minimization
               requirement serve the purpose of placing restrictions on the
               exercise of a zoning board’s inherent power to exercise
               discretion in the granting of a variance.[4]

Paganico v. Zoning Hearing Bd. of Municipality of Penn Hills, ___ A.3d ___, _____
(Pa. Cmwlth. No. 9 C.D. 2019, filed February 24, 2020), slip op. at 6-7 (emphasis
omitted) (quoting S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment,
54 A.3d 115, 124 (Pa. Cmwlth. 2012)).5



       3
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
       4
            This Court recognizes that, since the Borough has the Ordinance, the MPC is not expressly
implicated. However, like Section 910.2 of the MPC, added by Section 89 of the Act of December
21, 1988, P.L. 1329, No. 170, 53 P.S. § 10910.2, Section 1502.4 of the Ordinance begins: “The
[ZHB] may grant a [v]ariance provided the following findings are made where relevant in a given
case . . . .” Ordinance 779, as amended, § 1502.4
         5
            South of South Street Neighborhood Ass’n was disapproved on other grounds by Scott v.
City of Philadelphia Zoning Board of Adjustment, 126 A.3d 938 (Pa. 2015).


                                                 9
               Nevertheless, the Paganico Court expounded: “[A]lthough a minimum
variance is difficult to assess in use variance cases compared to dimensional variance
cases, [the applicant] has satisfied that requirement herein.” Paganico, slip op. at 7.
The same is true in the present case. The ZHB found as a fact herein: “The variance
is the minimum variance necessary to make a reasonable use of the lot[s].” R.R. at
61a. Allowing a duplex on two lots after they are combined into one does not
increase the density of use over the permitted single-family home on each of the two
lots. Since single-family homes cannot be built on the two undersized lots, allowing
a single duplex on the larger merged lot is the minimum variance necessary to afford
relief. Because a use variance marks a qualitative rather than a quantitative departure
from an existing ordinance, Applicant’s above-quoted testimony is sufficient to
support the ZHB’s conclusion that the variance granted herein was the minimum
necessary to afford relief. Paganico; see also In re Appeal of Redeemed Christian
Church of God, Living Spring Miracle Ctr., Inc. (Pa. Cmwlth. No. 930 C.D. 2015,
filed December 28, 2016); Oakbrook Fire Co. No. 14 Relief Ass’n v. City of Reading
Zoning Hearing Bd. (Pa. Cmwlth. No. 697 C.D. 2013, filed January 8, 2014).6
               For all of the above reasons, the trial court’s order is affirmed.



                                             ___________________________
                                             ANNE E. COVEY, Judge




       6
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for
its persuasive value, but not as binding precedent.


                                                 10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Zelienople Borough,                      :
                         Appellant       :
                                         :
                   v.                    :
                                         :
Zelienople Borough Zoning Hearing        :   No. 671 C.D. 2019
Board and Thomas G. Myers                :



                                     ORDER

            AND NOW, this 23rd day of June, 2020, the Butler County Common
Pleas Court’s April 17, 2019 order is affirmed.




                                      ___________________________
                                      ANNE E. COVEY, Judge
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Zelienople Borough,                             :
                              Appellant         :
                                                :
               v.                               :   No. 671 C.D. 2019
                                                :   Submitted: May 15, 2020
Zelienople Borough Zoning Hearing               :
Board and Thomas G. Myers                       :



BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE BROBSON                                FILED: June 23, 2020


       Thomas G. Myers (Applicant) wishes to consolidate two small and irregularly
shaped lots (Lots BC8 and BC9A) into a larger, regularly shaped lot that will span
approximately 13,000 square feet, or 1/3 of an acre. Applicant then wishes to build
a single-story duplex on the consolidated lot, which is not permitted under the
current zoning ordinance for the R-3 District. Because Applicant failed to show that
he cannot develop the larger consolidated lot in strict conformity with the zoning
ordinance without suffering an unnecessary hardship,1 I would reverse the decision


       1
         In response, the majority contends that the testimony of Applicant serves as substantial
evidence to refute the dissent’s position. (Maj. Op. at 6, n.2.) The testimony the majority relies
on, however, actually supports the dissent’s position. When asked about alternative permitted uses
other than a single-family home, Applicant testified only to the feasibility of those uses on the
of the Zelienople Borough Zoning Hearing Board, granting Applicant a use variance
for the proposed consolidated lot. I, therefore, respectfully dissent.




                                                  P. KEVIN BROBSON, Judge




smaller, unconsolidated lots. (Reproduced Record (R.R.) at 33a.) With respect to the proposed
larger consolidated lot, Applicant did not testify as to all permitted uses. He only testified as to a
single-family home use. With respect to placing a single-family home on the proposed larger
consolidated lot, Applicant testified that “you could do that. Somebody could do it.” (R.R. at 34a.)
Although Applicant expressed some concern about the cost and noted how, for up to four years,
no one had done it, he nonetheless testified that he did not “know the answer” to the question of
whether someone would be willing to invest the amount of money required to erect a single-family
home on the proposed larger consolidated lot. (Id.) I do not believe this testimony amounts to
substantial evidence that a single-family home, or some other permitted use under the ordinance,
cannot be built on the larger, proposed consolidated lot without unnecessary hardship.

                                              PKB-2
