         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas J. Greco,                           :
                                           : No. 426 C.D. 2016
                         Appellant         : Submitted: September 16, 2016
                                           :
                   v.                      :
                                           :
Zoning Hearing Board of the City of        :
Wilkes-Barre and Renaud, LLC d/b/a         :
Vesuvio Pizzeria & Ristorante              :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                      FILED: February 7, 2017

            Thomas J. Greco (Objector) appeals from a final order of the Court of
Common Pleas of Luzerne County (trial court) affirming a decision of the Zoning
Hearing Board of the City of Wilkes-Barre (ZHB) that granted the variance of
Renaud, LLC d/b/a Vesuvio Pizzeria & Ristorante (Applicant) in connection with
its restaurant. Objector contends the ZHB erred in granting the variance where the
evidence failed to demonstrate the requisite factors necessary for variance under
the law. Discerning no error, we affirm.
            Applicant is the owner of property located at 109-111 North Main
Street, Wilkes-Barre, Luzerne County, Pennsylvania (Property). The Property,
which is improved with a building, sits on a 4471-square-foot lot and is located
within an S-1 (special purpose) zoning district under the Wilkes-Barre Zoning
Ordinance (Ordinance). Applicant operates a restaurant on the Property, which is a
permitted use in the S-1 district. In August 2012, Applicant filed a zoning permit
application to construct an L-shaped deck, which was denied. Applicant submitted
an application for hearing before the ZHB, in which he requested a setback
variance to reduce both side yard setbacks for the deck.
             ZHB conducted a public hearing. At the hearing, with the permission
of the ZHB, Applicant verbally amended his zoning application to seek only a
dimensional variance pertinent to the installation of a 6-foot by 8-foot walk-in
cooler. Applicant sought a reduction of both side yard setbacks from the required
15 feet to 13 feet and 1 foot respectively to accommodate the walk-in cooler.
             At the hearing, Applicant presented the testimony of Donald Sabatino,
a partial owner and operator of the restaurant. Objector, who is the neighboring
landowner, was represented by counsel and opposed the variance at the hearing.
Both sides presented exhibits.
             At the close of evidence, the ZHB unanimously voted to approve
Applicant’s amended request for a variance to waive both side yard setbacks for
the walk-in cooler. Thereafter, the ZHB issued a written decision containing
findings of fact and conclusions of law, which can be summarized as follows.
             Restaurants are permitted to have a 6-foot by 8-foot walk-in cooler as
a necessity to the operation of their business. The installation of a 6-foot by 8-foot
walk-in cooler will not result in an increase in seating at a restaurant.        The
installation of the proposed 6-foot by 8-foot walk-in cooler will be placed on an
existing deck thereby resulting in no increase in maximum lot coverage. The
proposed cooler will be placed next to an existing walk-in cooler, which measures
11 feet, 7 inches by 4 feet, 10 inches by 8 feet. There is an existing 8-foot chain
link lattice fence located 1 foot between the proposed walk-in cooler location and


                                          2
the adjacent property line. ZHB Opinion, 7/15/2016, Findings of Fact (F.F.) Nos.
3-7.
              The irregular shape, narrowness, shallowness and the limited size of
the 4471-square-foot lot of the Property was an unnecessary hardship due to such
conditions pertaining to the proposed location of the walk-in cooler being 1 foot
and 13 feet, respectively from the adjacent property line. Therefore, there was no
possibility that the walk-in cooler could be located in strict conformity with the S-1
zoning district setback provisions of the zoning ordinance. The side yard variances
that were granted for the walk-in cooler were the minimum variances, which afford
relief and will represent the least modification possible of the side yard setback
regulation at issue.     The proposed walk-in cooler will not alter the essential
character of the neighborhood and zoning district in which it is located and will
neither substantially or permanently impair the appropriate use or development of
adjacent property, nor be detrimental to the public welfare. Applicant presented
sufficient testimony to justify granting variances to waive both side yard setbacks
from the 15 feet down to 13 feet and 1 foot, respectively, in order to permit the
installation of a 6-foot by 8-foot walk-in cooler as an addition to its existing
restaurant. F.F. Nos. 8-11.
              From this decision, Objector timely filed a land use appeal with the
trial court. Applicant intervened. Without taking additional evidence, the trial
court affirmed. Objector appealed to this Court.1



       1
         Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Taliaferro v. Darby Twp. Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005).


                                             3
             In this appeal, Objector argues the ZHB’s findings are not supported
by substantial evidence. Objector claims the evidence fails to satisfy the elements
necessary for relief, namely undue hardship. Specifically, Objector asserts the
denial of an additional cooler would not cause Applicant undue hardship or render
its property useless. Applicant is merely seeking a variance in order to increase its
business, investment and profitability. Applicant purchased this Property fully
cognizant of the physical parameters.
             To begin, the ZHB abuses its discretion when its findings are not
supported by substantial evidence. Hawk v. City of Pittsburgh Zoning Board of
Adjustment, 38 A.3d 1061, 1064 n.5 (Pa. Cmwlth. 2012). Substantial evidence is
such relevant evidence that a reasonable mind might accept as adequate to support
a conclusion. Id. In determining whether substantial evidence exists, the Court is
mindful that the credibility of witnesses and the weight to be accorded to their
testimony is within the sole province of the ZHB in its capacity as fact-finder. Id.
at 1065. The ZHB is free to accept or reject the testimony of any witnesses, in
whole or in part. Id.
             This Court may not substitute its interpretation of the evidence for that
of the ZHB. Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807,
811 (Pa. Cmwlth.), appeal denied, 887 A.2d 1243 (Pa. 2005). Assuming the
record contains substantial evidence, we are bound by the ZHB’s findings that
result from resolutions of credibility and conflicting testimony. Id.
             A dimensional variance involves a request to adjust zoning
regulations to use the property in a manner consistent with regulations, as opposed
to a use variance, which involves a request to use property in a manner that is
wholly outside zoning regulations. Hertzberg v. Zoning Board of Adjustment of


                                          4
the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). The standards for granting a
variance are well established and apply to use and dimensional variances. Id. at
46-47. Specifically, an applicant seeking a variance must demonstrate:

            (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
            zoning ordinance 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
            developed in strict conformity with the provisions of the
            zoning ordinance and that the authorization of a variance
            is therefore necessary to enable the reasonable use of the
            property.

            (c) That such unnecessary hardship has not been created
            by the appellant.

            (d) 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.

            (e) That the variance, if authorized, will represent the
            minimum variance that will afford relief and will
            represent the least modification possible of the regulation
            at issue.




                                         5
Section 1409.2 of the Ordinance; accord Section 910.2(a) of the Pennsylvania
Municipalities Planning Code (MPC)2; Hertzberg, 721 A.2d at 46-47.
             “The overriding standard for a variance is unnecessary hardship.”
Doris Terry Revocable Living Trust v. Zoning Board of Adjustment of City of
Pittsburgh, 873 A.2d 57, 63 (Pa. Cmwlth. 2005).              For an applicant to show
unnecessary hardship in the context of a use variance, he must prove that either:
“(1) the physical features of the property are such that it cannot be used for a
permitted purpose; or (2) the property can be conformed for a permitted use only at
a prohibitive expense; or (3) the property is valueless for any purpose permitted by
the zoning ordinance.” Taliaferro, 873 A.2d at 812. “The applicant must show the
hardship is unique or peculiar to the property as distinguished from a hardship
arising from the impact of zoning regulations on the entire district.” Id. “Mere
evidence that the zoned use is less financially rewarding than the proposed use is
insufficient to justify a variance.” Id. “Where a condition renders a property
almost valueless without the grant of a variance, unnecessary hardship is
established.” Id. “Further, where zoning regulations prohibit any reasonable use
of the property absent variance relief, the requisite hardship is proven.” Id.
             However, in Hertzberg, the Pennsylvania Supreme Court set forth a
more relaxed standard for establishing unnecessary hardship for a dimensional
variance. Hertzberg, 721 A.2d at 49. The Supreme Court explained:

             When seeking a dimensional variance within a permitted
             use, the owner is asking only for a reasonable adjustment
             of the zoning regulations in order to utilize the property
             in a manner consistent with the applicable regulations.

      2
       Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, 53 P.S. §10910.2(a).


                                            6
            Thus, the grant of a dimensional variance is of lesser
            moment than the grant of a use variance, since the latter
            involves a proposal to use the property in a manner that is
            wholly outside the zoning regulation.

Id. at 47. The Court held “the quantum of proof required to establish unnecessary
hardship is indeed lesser when a dimensional variance, as opposed to a use
variance, is sought.” Id. at 48. Under Hertzberg, the courts may consider multiple
factors in determining whether the applicant established unnecessary hardship for a
dimensional variance.   Id. at 50. These factors include the cost of the strict
compliance with the zoning ordinance, the economic hardship that will result from
denial of a variance, and the characteristics and conditions of the surrounding
neighborhood. Id.
            Although Hertzberg eased the requirements, it did not remove them.
Doris Terry, 873 A.2d at 62. An applicant must still present evidence as to each of
the conditions listed in the zoning ordinance, including unnecessary hardship. Id.
at 61-63. Where no hardship is shown, or where the asserted hardship amounts to
a landowner’s desire to increase profitability or maximize development potential,
the unnecessary hardship criterion required to obtain a variance is not satisfied
even under the relaxed standard set forth in Hertzberg. See Singer v. Philadelphia
Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011); see, e.g.,
Lamar Advantage GP Co. v. Zoning Hearing Board of Adjustment of City of
Pittsburgh, 997 A.2d 423, 445 (Pa. Cmwlth. 2010) (rejecting applicant’s request
for dimensional variance for proposed sign where only asserted hardship involved
alleged benefit to community and increase in income).
            Here, the ZHB’s decision to grant Applicant’s request for dimensional
variance from the setback requirements was supported by substantial evidence.


                                        7
Sabatino testified the property was irregularly shaped and that it was not possible
to use the proposed location for the walk-in cooler for any other use.          ZHB
Hearing, 5/22/13, Notes of Testimony (N.T.) at 16-17; see also N.T. at 8.
             Sabatino testified it would be a hardship if Applicant cannot install a
walk-in cooler in the space. N.T. at 17. He explained:

             Right now, we have the walk-in cooler now. And it’s
             there. And it’s already too small for the business itself.
             And the other one is – it’s just an extension to put kegs
             in.

N.T. at 17 (emphasis added). Applicant intends to use the cooler for beer lines as a
draw for its tap system. N.T. at 14. Kegs for draft beer would be kept in the cooler
and the lines would run from the taps inside the bar to the cooler. N.T. at 14, 15.
This cooler would be attached to a cooler already located on the Property. N.T. at
12, 20.
             In addition, he testified the variance requested represents the
minimum variance practical. N.T. 17. The side yard setbacks are 15 feet. Section
509 of the Ordinance. To accommodate the walk-in cooler, Applicant requested a
variance to reduce: (1) the 15-foot setback to 13 feet on one side, and (2) a pre-
existing 1.5-foot setback to 1 foot on the side that adjoins Objector’s property.
N.T. at 8-9. Sabatino testified the walk-in cooler would remain within the Property
line, 1 foot within a pre-existing fence located on the Property. N.T. at 12, 13, 14;
see also N.T. at 10.
             According    to   Sabatino, the variance will not            change the
neighborhood. N.T. at 17. In fact, Sabatino testified it would help reduce noise
emanating from the restaurant. N.T. at 17. Sabatino explained the walk-in cooler
will close the back part of the restaurant where there is currently a glass door. N.T.

                                          8
at 17. The walk-in cooler will be insulated. N.T. at 18, 24. The addition of the
walk-in cooler will help confine noise to the bar area by reducing noise escaping
from the bar through the glass door. N.T. at 18, 24.
             Upon review, the ZHB’s findings are supported by the evidence and
support the grant of a dimensional variance. As for Objector’s claim that the
variance is not necessary but merely an attempt by Applicant to increase its
business, investment and profitability, the record is devoid of evidence to support
this claim. Applicant established it was a business necessity. N.T. at 17. The
walk-in cooler will not increase seating at the restaurant or increase maximum lot
coverage as the cooler will sit on an existing deck within the existing fence line.
Thus, we conclude the ZHB did not err or abuse its discretion in granting the
dimensional variance from the setback requirements.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




Judge Cosgrove did not participate in the decision of this case.




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas J. Greco,                        :
                                        : No. 426 C.D. 2016
                        Appellant       :
                                        :
                   v.                   :
                                        :
Zoning Hearing Board of the City of     :
Wilkes-Barre and Renaud, LLC d/b/a      :
Vesuvio Pizzeria & Ristorante           :


                                    ORDER


           AND NOW, this 7th day of February, 2017, the order of the Court of
Common Pleas of Luzerne County, dated December 29, 2015, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
