           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marvin Cohen,                                 :
                            Appellant         :
                                              :
                     v.                       :    No. 2284 C.D. 2014
                                              :    SUBMITTED: June 12, 2015
Township of Montgomery                        :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: August 14, 2015


              Marvin Cohen appeals pro se from an order of the Court of Common
Pleas of Montgomery County denying his appeal and affirming the decision of the
Zoning Hearing Board of the Township of Montgomery (ZHB) to deny his 2013
application for a variance on the ground that he was barred by res judicata from re-
litigating a previous zoning appeal.1         The ZHB erred in determining that res
judicata applied and, accordingly, we vacate and remand this matter for
consideration of the 2013 application for a variance on the merits.2


    1
     In May 2015, the ZHB filed a notice of non-participation.
    2
     Based on the determinative issue presented, our scope of review is limited to determining
whether the ZHB committed an error of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807, 811 n.1 (Pa. Cmwlth. 2005). We exercise plenary review of such legal issues.
              Situated in the residential development of Gwynmont Farms, zoned
R-2 residential, and measuring 8223 square feet, the subject property is located at
131 Gwynmont Drive, North Wales, Montgomery Township, Pennsylvania.
ZHB’s January 7, 2014 Decision, Findings of Fact Nos. (F.F.) Nos. 1 and 3.
Owned by Gwynmont Farms Utility Corporation, the lot “was approved [in 19923]
to be used to construct a package sewage treatment plant until such time as the
township took over treatment of sewage from the development.” Id., F.F. No. 5.
In December 2005, the Public Utility Commission ordered that the plant be
dismantled. ZHB’s August 11, 2009 Decision, F.F. No. 19.
              In February 2009, the Township issued a cease and desist order
regarding the residential use of the former control building by Cohen’s son.
According to Cohen, that building contains a small kitchen, living area, one
bathroom, and one small bedroom. In response, the corporation via Cohen as sole
shareholder4 filed a 2009 zoning application seeking a special exception and a
variance to use the undersized property for residential purposes.               Pursuant to
Chapter 230 of the Township of Montgomery Zoning Code, lots in an R-2
residential district must have an area of not less than 20,000 square feet in order to
be used as single-family residences.5 On the application, Cohen marked boxes
indicating that the application related to use, the existing building, occupancy, lot
area, and nonconforming use and dimensions. Further, he made the following key
averment: “The subject property was created pursuant to an approved plan of


    3
      ZHB’s August 11, 2009 Decision, F.F. No. 18; Certified Record (C.R.), ZHB’s Record,
Exhibit 29.
    4
      ZHB’s January 7, 2014 Decision at 5.
    5
      Article VI of the Code, R-2 Residential District, Section 230-31, use regulations, and
Section 230-33(A), area, width and yard regulations; C.R., ZHB’s Record, Exhibit 38 at 463-64.



                                              2
subdivision and is a legally existing nonconforming lot. Further, residential use is
permitted in the R-2 District.” 2009 Zoning Application, Certified Record (C.R.),
ZHB’s Record, Exhibit 26. Accordingly, he maintained that he was entitled to a
variance to use the nonconforming lot for residential purposes. The ZHB denied
the 2009 zoning application and Cohen did not appeal.
              Subsequently, the Township issued another cease and desist order,
once again involving Cohen’s son. In response, the corporation as owner, but this
time with Cohen as an equitable owner, filed a 2013 zoning application seeking a
variance to use the property for residential purposes. The ZHB found that the
corporation still owned the property, but purportedly had entered into an agreement
of sale with Cohen. ZHB’s January 7, 2014 Decision, F.F. No. 2. In contrast to
the 2009 application, Cohen marked a box indicating that the new application also
related to proposed building. 2013 Zoning Application Attachment at 1, C.R.,
ZHB’s Record, Exhibit 12; Reproduced Record (R.R.) at 6a. Specifically, he
proposed keeping the control building, but adding a larger two-story addition and a
garage. Further, he proposed using four of the twelve concrete holding tanks from
the former plant for a basement and filling the remaining ones with clean fill and
topsoil. In support of this subsequent application, he concluded:
              Having a [sic] occupied residence on the property similar
              to others[,] as shown on the plans and drawings[,] will
              increase property values in the neighborhood much more
              than having a vacant dismantled former waste water
              treatment plant with open concrete Tanks in the ground
              that could become dangerous, surrounded by a decaying
              rusting chain link barbwire fence, with no one around to
              take care of the property.
Id. at 3; R.R. at 8a.




                                         3
              In January 2014, the ZHB denied the 2013 application, determining
that Cohen was barred by res judicata from re-litigating the previous zoning
appeal. Common pleas affirmed and Cohen’s appeal to this Court followed. The
determinative issue is whether the ZHB erred as a matter of law in determining that
res judicata applied.
              In zoning cases, res judicata generally will be applied 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). It will, however, be applied to bar re-litigation of a request for a
variance if four criteria are satisfied:
              (1) the identity of the thing sued for; (2) the identity of
              the cause of action; (3) the identity of the persons and
              parties to the action; and (4) the identity of the quality in
              the persons for or against whom the claim is made, and
              then, only if there are no substantial changes in
              circumstances relating to the land itself.
Callowhill, 2 A.3d at 809. We conclude that res judicata did not apply.
              While it is true that Cohen in the 2013 application once again sought a
variance to use the property as a residence, there was not an identity of the thing
sued for and cause of action. In the 2009 application, he sought a special exception
and a variance to use the existing structure as a residence. In the 2013 application,
he sought a variance and included a proposal to add a garage and a two-story
addition to the existing building. He also made proposals regarding the concrete
holding tanks. Accordingly, the first two criteria for res judicata were not met.
              In addition, notwithstanding Cohen’s position as sole shareholder of
the corporation, there was not an identity of the persons and parties to the action.
The agreement of sale lists the corporation as seller and Cohen and Claudia
Herman as buyers. August 2013 Agreement of Sale, C.R., ZHB’s Record, Exhibit

                                           4
13.    It appears to be an arms-length agreement and, in any event, the ZHB
permitted Cohen to proceed as one of the equitable owners. In pertinent part, it
indicates that the purchase price is $100,000, that the buyer will pay the seller
$50,000 forty-five days after a final zoning application is approved and that “[t]itle
shall be conveyed subject to existing restrictions of record provided they do not
interfere with Buyers[’] use of the property as a single[-]family home.” Id. at ¶
4.1.
                The next criterion for res judicata requires the identity of the quality
in the persons for or against whom the claim is made, and then, only if there are no
substantial changes in circumstances relating to the land itself. As noted above,
there has been an essential change in the quality of the “person” against whom the
claim is made. In addition, as suggested by the averments of the 2013 application,
at least some substantial changes in the circumstances relating to the land itself
have manifested in that the vestiges of the sewage plant, i.e., the structure, the
tanks and the fence, have continued to deteriorate over time.            We conclude,
therefore, that the 2013 zoning application was ripe for review and that res
judicata did not apply.
                In so concluding and in order to facilitate consideration on remand,
we are compelled to address several concerns. The first is the significance that the
Township affords the fact that there was nothing in its records or elsewhere to
indicate that the lot was ever approved for use as a residence or would
automatically revert to residential use after serving as a sewage plant. The fact that
the lot was never approved for use as a residence was the point of the two zoning
applications.     In addition, the absence of evidence indicating some sort of




                                            5
automatic reversion is not dispositive of the issue of whether a variance is
warranted.6
               Moreover, regarding the origin of the size of the lot, the township
zoning officer testified that there was a note on the January 1987 recorded plan for
phase 1 of the development indicating:               “Lot Number 50 to be dedicated to
Montgomery Township Municipal Authority and is reserved for location of
proposed sewage treatment plot [sic].” December 3, 2013 Hearing, Notes of
Testimony (N.T.) at 63. Further, he testified that the reason for the lot size, “based
off the record, is for the sizing of the sewage treatment plant.” Id. at 62. This is
consistent with Cohen’s testimony that the Township initially reserved an option to
accept dedication of the plant and to operate it. Id. at 11. He testified as follows:
                      During the subdivision process, at a meeting with
               the Township’s Sewer Authority, the chairman, Mr.
               Humphrey, stated that 20,000 square feet was larger than
               they would want if they’re going to maintain [and] . . .
               operate the plant. He drew a line across Lot 50 and
               instructed the developer to make Lot 50 smaller, as now
               indicated on the plan, and give the excess ground to the
               adjoining lot. The Board of [S]upervisors agreed. The
               engineer was instructed to do so, and on November 13th,
               1986, he revised the final plan . . . .


    6
       Section 910.2(a) of the Pennsylvania Municipalities Code, Act of July 31, 1968, P.L. 805,
added by section 89 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §
10910.2(a), circumscribes the power of a zoning hearing board to grant a variance only to those
circumstances where the landowner proves, where relevant, that a zoning restriction imposes an
unnecessary hardship due to unique physical conditions on his property that are not self-created;
that the requested variance is necessary to enable reasonable use of the property; that the grant of
a variance will not alter the essential character of the neighborhood, nor substantially or
permanently impair appropriate use or development of adjacent property, nor be detrimental to
the public welfare; and that the requested variance represents the minimum variance that will
afford relief and the least possible modification of the requirement. Hunt v. Zoning Hearing Bd.
of Conewago Twp., 61 A.2d 380, 384 n.7 (Pa. Cmwlth.), appeal denied, 72 A.3d 605 (Pa. 2013).



                                                 6
Id. When coupled with the testimony of the zoning officer, Cohen’s above-quoted
testimony is inconsistent with the Township’s unsupported position in its appellate
brief that “testimony established that [Cohen] created the Subject Property and
specifically made the lot size smaller than the required 20,000 square feet in an R-2
zone [because he] wanted . . . more homes [to] be built on the land, to [his] profit.”
Township’s Brief at 12. It is not for this Court, however, to assess the credibility
of the witnesses or to weigh their testimony. In any event, regardless of how the
lot became 8223 square feet, it is undisputed that the Township approved an
undersized lot for a private sewage treatment plant, that the Public Utility
Commission subsequently withdrew the plant’s license to operate, and that the
vestiges of that abandoned plant remain on a nonconforming lot located in an R-2
residential zone.
               Finally, we are compelled to note that, contrary to the Township’s
position, Cohen raised and preserved allegations sounding in inverse
condemnation.7       In the 2013 zoning application, he alleged that, absent the
requested relief, there was no reasonable use for the property.                   2013 Zoning
Application Attachment at 4, C.R., ZHB’s Record, Exhibit 12; R.R. at 9a. Further,
he averred that, “[t]o deny residential use of the property is like government taking
the property without compensation to the owner.” Id. He also made the following
pertinent statements at the ZHB hearing:
               [W]hat we want to do is make it conform with the rest of
               the neighborhood, and the Township is saying, no, you
               can’t make it conform, you have to keep your sewer
               plant.

    7
       A landowner, however, need not prove an inverse condemnation in order to satisfy the
criteria necessary for a variance. The relevant criterion provides that, absent the variance, he is
denied reasonable use of his property.



                                                7
                    ....
                    We have the property. We have to do something
             with it. . . . We don’t have money just to do it. We have
             to be able to borrow the money from the bank. The bank
             won’t lend any money unless used for residential
             purposes.
December 3, 2013 Hearing, N.T. at 103-04. Further, in his appeal to common
pleas, he reiterated that, if a residence is not permitted on the property, then the
property cannot reasonably be used as zoned. January 2014 Appeal to Common
Pleas at 3; R.R. at 35a. In this Court, he preserved the issue in both his October
2014 statement of errors at page three and in his brief at page twenty-five.
             Accordingly, we vacate and remand this matter for consideration of
the 2013 application on its merits based on the record developed before the ZHB.
After review of that record, it appears that the applicant was able to present any
and all evidence that he wished to submit in support of the 2013 zoning application
before resting his case.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                          8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marvin Cohen,                              :
                         Appellant         :
                                           :
                   v.                      :     No. 2284 C.D. 2014
                                           :
Township of Montgomery                     :


                                     ORDER


            AND NOW, this 14th day of August, 2015, the order of the Court of
Common Pleas of Montgomery County is vacated and the matter is remanded for
proceedings consistent with the foregoing opinion.
            Jurisdiction relinquished.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Judge
