               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Paganico and Trona Paganico,             :
                  Appellants                    :
                                                :
               v.                               :
                                                :
Zoning Hearing Board of the                     :   No. 9 C.D. 2019
Municipality of Penn Hills                      :   Submitted: August 30, 2019


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge


OPINION BY
JUDGE COVEY1                                        FILED: February 24, 2020

               Robert and Trona Paganico (Objectors) appeal from the Allegheny
County Common Pleas Court’s (trial court) December 4, 2018 order affirming the
Zoning Hearing Board of the Municipality of Penn Hills’ (ZHB) decision granting
Veterans Place of Washington Boulevard (Veterans Place) a use variance. The sole
issue before this Court is whether the ZHB properly granted Veterans Place a use
variance. After review, we affirm.
               Veterans Place owns a triangular, approximately 3.7-acre parcel of
vacant land, zoned R-1 residential, on Jefferson Road in Penn Hills (lot and block
#539-N-172) (Property). The Property was a former sewage treatment facility, which
is now a fill area. The Property has a 20- to 30-foot-wide sewer easement running
through its center. It has varying topography that includes flat areas, sharp inclines
and declines, and is covered with poorly compacted fill materials.
               On February 28, 2018, Veterans Place’s Executive Director Marlon
Ferguson (Ferguson) filed a use variance application with Penn Hills’ Code

      1
          This matter was reassigned to the author on January 31, 2020.
Enforcement Department. In his request, Ferguson sought permission on behalf of
Veterans Place to renovate the Property to serve homeless veterans transitioning from
homelessness to permanent residency. He specifically proposed to build a group care
facility and 14 micro homes on the Property. Each micro home would provide
approximately 500 square feet of living space for an individual veteran. A private
drive servicing all homes would be accessible via Jefferson Road. The group care
facility would consist of a 2-story, 7,000-square-foot building built on a slab, where
Veterans Place would host events and outreach functions for the community, veterans
associations and others as part of Veterans Place’s mission.
              On April 25, 2018, the ZHB held a hearing and voted unanimously in
favor of granting Veterans Place’s use variance application. On April 30, 2018, the
ZHB issued its decision granting the use variance conditioned upon the planning
commission’s site plan approval. On May 25, 2018, Objectors appealed from the
ZHB’s decision to the trial court. On December 4, 2018, the trial court affirmed the
ZHB’s decision. Objectors appealed to this Court.2
              Initially, Section 15.11(C) of the Penn Hills Ordinance (Ordinance)
provides, in pertinent part:

              No variance shall be granted unless the [ZHB] determines
              and fully describes in its findings, the following:
              (1) That there are unique physical circumstances or
              conditions, including irregularity, 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,

       2
          “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
               in the neighborhood or district in which the property is
               locate[d].
               (2) That, because of such physical circumstances or
               conditions, there is no possibility that the property can be
               developed in strict conformity with the provisions of this
               ordinance, and that the authorization of a variance is
               therefore necessary to enable the reasonable use of the
               property.
               (3) That such unnecessary hardship has not been created by
               the app[licant].
               (4) That 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) That 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.

Ordinance § 15.11.C.3
               Objectors argue that Veterans Place has not satisfied the second
(property cannot be developed) and fifth (minimum variance) requirements for a use
variance.     With respect to the second requirement, Objectors contend that the
Property could be used for the construction of a single-family residence in accordance
with the Ordinance. Veterans Place rejoins that it demonstrated that uses otherwise
permitted by the Ordinance are not possible due to the unique features of the


       3
          Objectors, the trial court, and Veterans Place all claim that the applicable requirements are
set forth in Section 910.2(a) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L.
805, as amended, added by Section 2 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §
10910.2(a). See Objectors’ Am. Br. at 8-9; Trial Ct. Op. at 2-3; Veterans Place Br. at 15-16.
However, this assertion is incorrect, as Penn Hills has enacted its own zoning ordinance. See Penn
Hills        Zoning         Ordinance        (2004),        as       amended,         available      at
http://pennhills.org/wpcontent/uploads/2017/10/Penn-Hills-Zoning-Ordinance.pdf (last visited
February 20, 2020). For reasons unknown, the trial court record contains an incomplete version of
the Ordinance, which omits Section 15.11(C) of the Ordinance. See Original Record at 53-72.
                                                  3
Property, or would only be possible at a prohibitive expense, which is the proper
standard for a use variance.

             [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
             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)).
             Here, Veterans Place’s expert engineer, David Heath (Heath) testified:

             Q. What do you see as the main challenge for any attempt
             to develop this particular [P]roperty?
             A. Well, there’s [sic] several site challenges when it comes
             to development. As discussed previously, the site or the
             [P]roperty itself is triangular in shape and it - essentially, a
             valley from the one point of the triangle towards the
             hypotenuse, which runs stream [sic]. It also has steep
             slopes on the opposite side of this proposed development
             that go to the adjacent street. There’s [sic] also streams that
             come down from that street, drainage that enter there.
             Also, some of the soils --- fill site has a bad name, but this
             was not properly --- the fill was not properly compacted,
             there was no oversight. So the material that we encountered
             is very large construction materials in terms of concrete,
             paving experiencing voids.



                                            4
            Q. Are there any economic challenges to developing this
            [P]roperty in accordance with the uses allowed under the
            [O]rdinance?
            A. Well, this type of fill is problematic, and a little excerpt
            from our geo-technical investigation; we did some test
            moorings just January 23rd of this year for the micro homes
            site. We experienced [9] to 32 feet of fill, varying
            compressibility, without undercut and backfill seem to
            provide a more mutual variant subgrades with the potential
            for detrimental differential foundation and force that floor
            slab settlement to exist. Such settlements could result in
            cracking foundations, walls, uneven floors, out of plum trim
            and finishes. The cost of the undercut and backfill [] for a
            single family dwelling, would be disproportionate
            compared to the proposed community center.

Supplemental Reproduced Record (S.R.R.) at 146b-148b. Heath expounded:

            Q. So I would ask you to please go through each of these
            uses and explain why they’re either not possible, due to the
            physical nature of the [P]roperty, or they’re not possible
            because conforming into a use would be cost prohibitive?
            A. Okay. First permitted use; single[-]family residence.
            Based on the fill of the --- that I previously discussed, the
            burden of over excavation render [] significant[] site costs
            to an individual home. It would also be prohibitive the way
            the [sewer easement] is run, it’s running through the
            property, it renders very little developmentable [sic]
            property for a home.
            So that’s where it would stand with [a] single[-]family
            [home].

S.R.R. at 150b.
            The ZHB determined:

            Heath[] reviewed the other legal uses of the land and
            concluded that none of the other uses could be developed in
            compliance with the [Ordinance].
            The [ZHB] found his testimony competent and credible.
            Residential uses were not possible because of the expense
            of correcting the improper placement of fill on the site and

                                          5
               because there is [a] sewer easement through the center of
               the [P]roperty, the same problem applies to other residential
               uses.

ZHB Dec. at 3. Accordingly, the ZHB’s conclusion that the Property could not be
developed in accordance with the Ordinance due to the Property’s physical
circumstances or conditions is supported by substantial evidence.
               Concerning the fifth requirement, Objectors contend that substantial
evidence does not support the ZHB’s conclusion that the use variance is the minimum
variance necessary to afford relief and represents the least modification possible of
the Ordinance.
               With respect to whether a use variance is the minimum variance
necessary to afford relief, this Court has explained:

               [W]e will address the [] argument that the trial court erred
               in affirming the [zoning board of adjustment’s (ZBA)] grant
               of the variance because the [applicant] did not request the
               minimum variance necessary. The [objector] contends that
               the variance that the ZBA granted improperly exceeds the
               minimum variance necessary to afford relief to [the
               applicant]. We note, however, that this minimization
               requirement contained in both the [Pennsylvania
               Municipalities Planning Code4 (] MPC[)] and the
               [Philadelphia] Zoning Code 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



      4
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
                                                 6
               zoning board’s inherent power to exercise discretion in
               the granting of a variance.[5]

S. of S. St. Neighborhood Ass’n v. Phila. Zoning Bd. of Adjustment, 54 A.3d 115, 124
(Pa. Cmwlth. 2012) (emphasis added);6 see also Liberties Lofts LLC v. Zoning Bd. of
Adjustment, 182 A.3d 513 (Pa. Cmwlth. 2018); In re Appeal of Redeemed Christian
Church of God, Living Spring Miracle Ctr. (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).7
               This Court recognizes that the present case does not involve the MPC or
the Philadelphia Zoning Code. However, the same rationale applies herein because
the instant matter involves a use variance wherein the ZHB determined that Veterans
Place established the other four variance requirements, i.e., unique physical
circumstances or conditions, which prevent development of the property in strict
conformity with the ordinance, the hardship was not self-created, and the variance
will not alter the essential character of the neighborhood.                   As our Court has
consistently recognized, these criteria serve to restrict the ZHB’s inherent power to
exercise discretion in granting variances. The Court is not holding that the minimum
variance necessary is not relevant, or does not apply; rather, that although a minimum
variance is difficult to assess in use variance cases compared to dimensional variance
cases, Veterans Place has satisfied that requirement herein.




       5
          Here, the ZHB determined, and this Court agrees, that Veterans Place met the unnecessary
hardship criteria for a use variance.
        6
           Disapproved on other grounds by Scott v. City of Philadelphia Zoning Board of
Adjustment, 126 A.3d 938 (Pa. 2015).
        7
          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.


                                                 7
Here, Ferguson expressly declared:

Q. The fifth and final factor [is], if authorized, will this use
variance represent the minimum variance that will afford
relief to represent the least modification possible under the
[Ordinance]?
A. Yes.
Q. Are you asking for anything that’s significantly different
from what is already available under the [O]rdinance?
A. No.
....
Q. I’m going to hand you [. . .] this is [S]ection five of
[Ordinance]. If you flip to page 47 almost to the back. At
the top, for an R-1 zoning district, there are a number of
conditional uses that are listed. Is it true that these
conditional uses contemplate community involvement?
A. Yes.
Q. Could you give me some examples directly from the
[O]rdinance?
A. Permission to use as church or rectory, cemetery,
mausoleum, community facilities (non-profit), public or
private recreational facilities, forestry, funeral homes,
telecommunication towers, facility buildings, schools,
offices, nurseries, public utilities and public services, senior
center, senior citizen housing, planned unit residential
developments.
Q. So the project - so these projects that are authorized by
the [O]rdinance, contemplate community involvement.
Correct?
A. Yes.
Q. Is the project that you proposed here, do you anticipate
that it will be less of an impact than some of these
conditional uses that are already in the [O]rdinance?
A. Yes.
                               8
               Q. Could you provide an example?
               A. Like for instance, churches.
               With churches you have a large parking lot, a lot of activity.
               We won’t have those types of activities at our resource
               center.

S.R.R. at 138b-141b. Because a use variance marks a qualitative rather than a
quantitative departure from an existing ordinance, the above-quoted testimony is
sufficient to support the ZHB’s conclusion that the variance granted herein was the
minimum necessary to afford relief.8 See Redeemed Christian Church; Oakbrook.
               The Redeemed Christian Church Court acknowledged the South of South
Street Court’s holding that “the question of whether [the a]ppellant has asked for the
minimum variance necessary to provide relief is difficult to assess compared to
dimensional variance cases, but [] conclude[d] that to the extent such a requirement is
present, [the a]ppellant ha[d] satisfied it.” Redeemed Christian Church, slip op. at 18
n.7. Specifically, the Redeemed Christian Church Court concluded:

               The proposed educational, training and religious uses would
               require modifications only to approximately half of the
               interior of the [b]uilding and only to that portion of the
               [b]uilding that [the a]ppellant was unable to use as office
               space and that represented the hardship. The proposed
               uses, particularly the training and educational functions
               of the [b]uilding, are also substantially similar to
               permitted commercial uses and therefore have a
               minimal impact on the use of neighboring property
               owners and the health of the [Business Park] District as
               a whole.

       8
          The Concurrence/Dissent states: “In my opinion, [] Ferguson’s bald, unsupported
comments fall woefully short of constituting substantial evidence.” Paganico v. Zoning Hearing
Bd. of Municipality of Penn Hills, ___ A.3d ___, ___ (Ceisler J., concurring/dissenting), slip op. at
2. However, “[s]ubstantial evidence is such relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.” DiMattio, 147 A.3d at 974 (quoting Eichlin v. Zoning
Hearing Bd. of New Hope Borough, 671 A.2d 1173, 1175 (Pa. Cmwlth. 1996)). Clearly, the above-
quoted testimony fits within that definition.


                                                 9
Slip op. at 17-18 (emphasis added). Likewise here, the proposed use, particularly the
group care facility, is substantially similar to the permitted uses of, inter alia, a
church or non-profit community facility and “therefore ha[s] a minimal impact on the
use of neighboring property.” Id.
             Similarly, in Oakbrook, this Court found that, under the MPC, the
minimization requirement is not relevant in use variance cases.          However, the
Oakbrook Court opined that, if it was relevant and applicable, the fact that “the
property and structure cannot be used for permitted residential purposes or for
modern firefighting purposes; and the proposed use will be less intense than the
neighboring [a]ssociation social quarters because fewer patrons can be served at
the proposed brew pub and there is on-site parking[,]” “support the conclusion that
the minimization requirement . . . is satisfied.” Slip op. at 11 n.8 (emphasis added).
             Here, the ZHB stated:

             Residential uses were not possible . . . , the same problem
             applies to other residential uses. Conditional uses are not
             possible consistent with the [Ordinance]. . . . The same
             problems apply to special exceptions such as funeral
             home[s] or Planned Residential Developments. Senior
             Citizen housing is not economically feasible. . . .
             A traffic study was presented by [] Heath that established
             that the development will have a negligible effect on the
             area. This conclusion was well supported by the traffic
             study.
             The proposed use of [the P]roperty is essentially residential.
             The only non-residential aspect of this use is the group care
             building, but this use is generally consistent with the
             residential character of the neighborhood.

ZHB Dec. at 3. Accordingly, the ZHB’s conclusion that the granted variance was the
minimum variance necessary to afford relief is supported by substantial evidence.



                                           10
For all of the above reasons, the trial court’s order is affirmed.



                           ___________________________
                           ANNE E. COVEY, Judge




                              11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Paganico and Trona Paganico,     :
                  Appellants            :
                                        :
           v.                           :
                                        :
Zoning Hearing Board of the             :   No. 9 C.D. 2019
Municipality of Penn Hills              :


                                  ORDER

           AND NOW, this 24th day of February, 2020, the Allegheny County
Common Pleas Court’s December 4, 2018 order is affirmed.


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


Robert Paganico and Trona Paganico, :
                  Appellants        :
                                    :
     v.                             : No. 9 C.D. 2019
                                    : SUBMITTED: August 30, 2019
Zoning Hearing Board of the         :
Municipality of Penn Hills          :


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION
BY JUDGE CEISLER                                      FILED: February 24, 2020

      I concur with the majority that substantial evidence supports the Zoning
Hearing Board of the Municipality of Penn Hills’ (Board) finding that Veterans
Place of Washington Boulevard’s (Veterans Place) property could not be used in a
manner which complies with Penn Hills’ Zoning Ordinance. However, I cannot join
with the majority in full, as I respectfully submit that substantial evidence does not
support the Board’s finding that Veterans Place’s desired use variance is the
minimum variance necessary to afford relief.
      The Penn Hills Zoning Ordinance clearly tasks the Board with making a
specific determination as to whether, and why, a desired use variance provides the
minimum relief necessary to enable development. See PENN HILLS, PA., ZONING
ORDINANCE § 15.11.C (2004). Though the Board did make such a determination
here, this conclusion is simply not supported by substantial record evidence. While
Marlon Ferguson, Veterans Place’s executive director, did briefly address the
minimum variance issue, his testimony on this point is vague and conclusory. Mr.
Ferguson was asked whether his organization was seeking the minimum variance
necessary to afford relief. Without explanation, Mr. Ferguson, simply replied, “Yes.”
Board Hrg. Tr., 4/25/18, at 25. Shortly thereafter, Mr. Ferguson was asked whether
the proposed use, i.e., the group facility and micro homes, would be less intense than
the multitude of conditional uses permitted in the Zoning Ordinance, to which he
again merely replied, “Yes.” Id. at 27. When prodded to give an example of how this
proposed use would be comparatively less intense than an authorized conditional
use, Mr. Ferguson stated that a church would host certain, unspecified “activities”
that would not occur at the proposed group facility and micro homes. Id. at 27-28.
In my opinion, Mr. Ferguson’s bald, unsupported comments fall woefully short of
constituting substantial evidence.
      There is no doubt that Veterans Place’s mission is noble and that our veterans
absolutely deserve assistance with reintegration into civilian life. However, I find
the majority’s holding sets the evidentiary bar far too low, which has the practical
effect of nearly obliterating the Penn Hills Zoning Ordinance’s minimum relief
requirement in the context of use variances. I therefore respectfully dissent in part,
out of concern that the majority’s holding in this situation will be cited to similar
effect in future cases, thereby improperly relaxing the heavy burden placed upon use
variance applicants in other analogous matters.




                                              ELLEN CEISLER, Judge




                                       EC - 2
