          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monmalt Partners and                         :
Stroschein Pointe Partners,                  :
                         Appellants          :
                                             :
               v.                            :      No. 1992 C.D. 2016
                                             :      Submitted: April 6, 2017
Zoning Hearing Board of the                  :
Municipality of Monroeville                  :
                                             :
               v.                            :
                                             :
Municipality of Monroeville and              :
Key Development Partners, LLC                :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                             FILED: May 4, 2017

               In this zoning appeal, Monmalt Partners (Monmalt) and Stroschein
Pointe Partners (collectively, Objectors) ask whether the Court of Common Pleas
of Allegheny County1 (trial court) erred in affirming a decision of the Zoning
Hearing Board of the Municipality of Monroeville (ZHB) that granted Key
Development Partners’ (Applicant) applications for three dimensional variances to
permit a reduction in the number of required parking spaces and to allow
encroachments into the minimum front and side yard setbacks for the parking
spaces in connection with Applicant’s proposed restaurant and retail use.

      1
          The Honorable Joseph M. James presided.
Objectors assert the ZHB committed an error of law, abused its discretion or made
findings not supported by substantial evidence when it granted the requested
variances. Upon review, we affirm.


                                    I. Background
            The property at issue, which is a triangular-shaped lot, is located at
4020 William Penn Highway in Monroeville (subject property). The property is
currently owned by Tony Tyke, Inc (Tony Tyke). Applicant has an agreement
with Tony Tyke to purchase the subject property.


            The subject property lies in a C-2 business commercial zoning district.
It is currently improved with an automobile garage and repair shop that was
formerly a gas station. Applicant proposes to raze the existing automobile garage
and repair shop and construct a “[s]ingle story commercial building for future
tenant(s) – possibly retail sales, restaurant.” Reproduced Record (R.R.) at 48a
(Applicant’s variance application); see also Supplemental Reproduced Record at
34b (plan depicting one proposed building with a retail unit and a restaurant unit).
Applicant’s proposed restaurant and retail uses are permitted uses in the C-2
district. The C-2 district requires a minimum front yard of 10 feet and a minimum
side yard of 15 feet. There is no required minimum rear yard in the C-2 district.


            Of further note, as the trial court explained, Objector Monmalt
Partners, which owns the property adjacent to the subject property, entered into a
reciprocal easement agreement with Tony Tyke in 1996. The easement agreement
provides the parties with mutual rights of ingress and egress by way of a driveway
located between their properties.

                                         2
             In February 2016, Applicant filed applications with the ZHB seeking
three variances. First, Applicant requested a variance from Section 308 of the
Monroeville Zoning Ordinance (zoning ordinance) (relating to off-street parking).
Specifically, Applicant sought a variance to reduce the required number of parking
spaces (which is calculated based on the square footage of Applicant’s proposed
building) from 57 to 53.


             Next, Applicant sought a variance from Section 207.8 of the zoning
ordinance, which states:

             No required yard in any district shall be used for parking
             vehicles except on a driveway.            In single-family
             developments, not more than twenty-five percent of the
             front yard may be devoted to driveway access. In single-
             family attached developments, not more than fifty
             percent of the front yard may be devoted to driveway
             access. In multiple family developments, not more than
             fifty percent of the front yard may be devoted to
             driveway access. In non-residential districts, driveway
             access shall be as permitted by site plan approval.

Id. (emphasis added). As to the requested variance from this provision, Applicant
indicated that portions of 25 of its proposed parking spaces would be within the
required minimum 10-foot front yard of the subject property.


             In addition, Applicant sought another variance from Section 207.8 of
the zoning ordinance. Specifically, Applicant indicated that portions of nine of its
proposed parking spaces would be within the required minimum 15-foot side yard
of the subject property.




                                         3
             The ZHB held a hearing on Applicant’s three variance requests. At
the hearing, Applicant presented the testimony of Boyd Ernzer of Fahringer,
McCarty and Grey.       As to the hardship suffered by Applicant if its variance
requests were denied, Ernzer testified:

             It is the unique shape of the lot. It is a triangular lot
             instead of a typically square or rectangular lot. There are
             two front yard[s] as opposed to one. Most development
             sites have one front [yard], one rear yard and two side
             yards. In this case we have either front yards or side
             yards or one front yard or two front yards, one rear yard
             and one side yard.

ZHB Op., Finding of Fact (F.F.) No. 13 (quoting ZHB Hr’g, Notes of Testimony
(N.T.), 3/1/16, at 20). Ernzer further testified: “The [subject] property cannot be
reasonably developed or redeveloped in strict conformance to the [zoning]
ordinance without granting the variance[s].” F.F. No. 14 (quoting N.T. at 21).
Ernzer also testified regarding the effect that the granting of the variances would
have on the neighborhood and the public welfare, stating: “The variance[s] will not
alter the character of the neighborhood or be detrimental to the public welfare.”
F.F. No. 15 (quoting N.T. at 21).


             In addition, Ernzer testified regarding the size constraints of the
building on the subject property, stating:

             [A] restaurant of 3,000 square feet you can’t really get
             any smaller than that. We are doing an Arby’s right now.
             It is 2,800 or 2,900 feet. That is a fast food restaurant.
             Most sit-down restaurants, I mean, are in the five to six to
             7,000 square feet. So the restaurant really could not be
             reduced in any way shape or form.



                                             4
F.F. No. 16 (quoting N.T. at 22). Ernzer provided similar testimony concerning
the size of the retail component of the proposed building. N.T. at 23.


             In opposition to Applicant’s variance requests, Jack Finnegan,
Esquire, presented brief argument on behalf of Objectors, which own property
adjacent to and near the subject property. Finnegan’s main points of opposition
were the asserted lack of hardship and the existence of the easement agreement,
which he asserted made the granting of the variances improper.             Objectors
presented no witness testimony or documentary evidence other than the easement
agreement.


             Based on its factual findings, the ZHB made the following
conclusions of law.     Applicant’s proposed construction of a retail store and
restaurant is a permitted use in a C-2 district.     Section 201(c) of the zoning
ordinance. Because Applicant’s proposed use is a permitted use, dimensional
rather than use variance standards apply.      The difference between the two is
significant. See Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721
A.2d 43 (Pa. 1998).


             In particular, because Applicant is seeking dimensional variances for a
permitted use, it is only asking for a reasonable adjustment of zoning regulations in
order to use the property in a manner consistent with applicable regulations.
Further, because Applicant is seeking dimensional rather than use variances, it was
not required to prove the subject property could not be used absent the requested




                                         5
variances. The quantum of proof required to establish unnecessary hardship in the
context of a dimensional variance is lesser than when seeking a use variance.


              In addition, when considering the grant of a dimensional variance,
multiple factors such as the economic detriment to the applicant if the variance is
denied, the financial hardship created by any work necessary to bring the building
into strict compliance with the zoning requirements, and the characteristics of the
surrounding neighborhood shall be considered. Hertzberg.


              An applicant may obtain a variance where the following conditions
are met: (1) unique physical characteristics of the property, rather than the
operation of the zoning ordinance create an unnecessary hardship; (2) because of
the unique physical characteristics of the property, the property cannot be
developed in conformity with the provisions of the zoning ordinance and the
authorization of a variance is therefore necessary to enable reasonable use of the
property; (3) the applicant has not created the hardship; (4) the variance, if
authorized, will not alter the character of the neighborhood or adversely affect
possible future development of adjacent property; and, (5) the variance, if
approved, will represent the minimum variance that will afford relief and will
represent the least modification possible of the regulation at issue. Section 910.2
of the Pennsylvania Municipalities Planning Code2 (MPC).




       2
        Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10910.2. Section 910.2 was added
by the Act of December 21, 1988, P.L. 1329.



                                             6
             The ZHB credited Ernzer’s testimony that the triangular shape of the
subject property and the presence of two front yards represented a physical
hardship to development of the subject property. Concl. of Law No. 8 (citing N.T.
at 20-21). The ZHB also credited Ernzer’s testimony that the variance would not
alter the character of the neighborhood or be detrimental to the public welfare.
ZHB Op., Concl. of Law No. 10 (citing N.T. at 21).


             In addition, the ZHB determined Objectors’ complaints regarding the
private easement and its effect on the subject property were not proper matters for
the ZHB to decide.


             In sum, the ZHB concluded Applicant met its burden of establishing
its entitlement to the requested variances. Thus, the ZHB granted those requests.
Objectors appealed to the trial court.


             Without taking additional evidence, the trial court affirmed. The trial
court concluded the ZHB properly determined Applicant satisfied each of the
required criteria necessary to obtain the requested dimensional variances.
Objectors now appeal to this Court.




                                         7
                                     II. Discussion
                                      A. Variances
                                     1. Contentions
              On appeal,3 Objectors contend Applicant failed to offer sufficient
evidence to support its argument that the requested variances were necessary based
on: (1) the triangular shape of the subject property; (2) the alleged hardship created
by the easement agreement between Monmalt and Tony Tyke, and the size
constraints of the subject property; and, (3) the assertion that the subject property
cannot be economically developed without approval of the variances.


              Objectors argue the only record evidence that supports Applicant’s
arguments is the unsupported and self-serving statements of Ernzer and Steve
Panko, Applicant’s representative. Objectors assert Ernzer and Panko did not
present any evidence to support their statements. They contend “an applicant
cannot meet his burden of proof by simply offering his personal opinion that this
development concept would not be marketable in accordance with present zoning.”
Somerton Civic Ass’n v. Zoning Bd. of Adjustment of Phila., 471 A.2d 578, 581
(Pa. Cmwlth. 1984) (citing Appeal of Am. Med. Ctrs., Inc., 422 A.2d 1192 (Pa.
Cmwlth. 1980); U. Moreland Twp. Bd. of Comm’rs v. Zoning Bd., 361 A.2d 455
(Pa. Cmwlth. 1976)).


              Further, Objectors maintain Applicant did not introduce any evidence
that the shape, size and constraints of the subject property imposed a burden on all

       3
         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 Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).



                                             8
dimensionally compliant uses. In fact, Objectors argue, neither Ernzer nor Panko
mentioned whether the subject property could be developed for any other permitted
or conditional use in the C-2 district.4


               In addition, Objectors assert the economic hardship alleged was
equally unsupported by sufficient evidence. Objectors contend the testimony of
Ernzer and Panko proved nothing. They merely suggested that adherence to the
zoning ordinance would impose a financial burden on Applicant’s desire to use the
subject property as it wished, i.e., a development that would maximize profitability
of the subject property. However, Objectors argue, no evidence of profitability,
costs or limited use was produced or offered into evidence. Objectors maintain
Ernzer and Panko’s reliance on the variances the ZHB previously granted to
Monmalt for the prior development of the subject property is irrelevant and
insufficient to prove the need for a variance as a matter of law.


               To that end, Objectors assert Applicant cannot simply rely on the fact
that the variances requested are similar to those previously granted to Monmalt,
because “any subsequent variance application, even one seeking the same variance

       4
          More specifically, Objectors contend there is no mention of any burden on other
permitted uses of the subject property, which include: amusement uses, auditoriums, banks,
business colleges, business services, clubs, convention centers, department stores, food services,
funeral homes, medical clinics, nurseries, offices, personal services, shopping centers, studios,
theaters, vehicle salesrooms, veterinary clinics, and accessory uses. Additionally, Objectors
maintain, Applicant provided no evidence that the subject property could not reasonably be used
for any of the permissible conditional uses, including: billboards, churches, commercial
communication towers, commercial communication antennae, commercial commuter lots, drive-
in restaurants, drive-in theaters, gas stations (keeping in mind that the subject property was used
as a gas station for years), heliports, hotels, major excavation, major timbering or logging
operations, public uses, utility substations, vehicle sales areas and vehicle services.



                                                9
for the same parcel of land, is a new application and the applicant must prove all
elements necessary to the variance.” Omnivest v. Stewartstown Borough Zoning
Hearing Bd., 641 A.2d 648, 652 (Pa. Cmwlth. 1994) (holding “each request for a
variance must rest on its own facts, and evidence of granting other variances is not
only irrelevant, it is inadmissible.”); see also Mobil Oil Corp. v. Zoning Bd. of
Adjustment of Borough of Dauphin, 291 A.2d 541 (Pa. Cmwlth. 1972).


              Objectors further contend the lack of any evidence offered by
Applicant beyond the unsupported and self-serving statements of Ernzer and Panko
is clear from a review of the ZHB’s findings and conclusions, which cite and rely
solely on that testimony. Objectors argue the ZHB abused its discretion and
committed an error of law because the evidence presented by Applicant fails to
substantially, or even minimally, support the grant of the variances, and the ZHB
did not comply with and apply proper legal standards for variance requests.


              Objectors maintain the ZHB’s reliance on Hertzberg was an over-
generalization of Pennsylvania law on the issue of hardship. They assert this Court
regularly addresses the problems inherent in such a generalization, and in 2005
reiterated its prior holdings, stating:

              Ever since our Supreme Court decided Hertzberg, we
              have seen a pattern of cases arguing 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. Hertzberg stands for nothing of
              the kind.      Hertzberg articulated the principle that
              unreasonable economic burden may be considered in
              determining the presence of economic hardship. It may
              also have somewhat relaxed the degree of hardship that


                                          10
             will justify a dimensional variance. However, it did not
             alter the principle that a substantial burden must attend
             all dimensionally compliant uses of the property, not just
             the particular use the owner chooses. This well-
             established principle, unchanged by Hertzberg, bears
             emphasizing in the present case. A variance, whether
             labeled dimensional or use, is appropriate ‘only where
             the property, not the person, is subject to hardship.’
             Szmigiel v. Kranker, 6 Pa. Cmwlth. 632, 298 A.2d 629,
             631 (1972).

One Meridian Partners, LLP v. Zoning Bd. of Adjustment of City of Phila., 867
A.2d 706, 710 (Pa. Cmwlth. 2005) (quoting Yeager v. Zoning Hearing Bd. of City
of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)); see also Soc’y Created to
Reduce Urban Blight v. Zoning Bd. of Adjustment, 771 A.2d 874 (Pa. Cmwlth.
2001).


             Objectors maintain that in 2014, this Court summarized the law on
this issue, stating: “Although Hertzberg eased the requirements, it did not remove
them. An applicant must still present evidence as to each of the conditions listed in
the zoning ordinance, including unnecessary hardship.” Tri-County Landfill Inc.
v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth. 2014) (citing
Doris Terry Revocable Trust v. Zoning Bd. of Adjustment of City of Pittsburgh,
873 A.2d 57 (Pa. Cmwlth. 2005)). And, this Court recently held: “[W]here no
hardship is shown, or where the asserted hardship amounts to a landowner’s mere
desire to increase profitability, the unnecessary hardship criterion required to
obtain a variance is not satisfied even under the relaxed standard set forth by the
Supreme Court in Hertzberg.” Dunn v. Middletown Twp. Zoning Hearing Bd.,
143 A.3d 494 (Pa. Cmwlth. 2016) (collecting cases). Objectors argue this case is
similar to the line of cases cited in Dunn.


                                          11
             Here, Objectors argue the testimony of Ernzer and Panko proved
nothing. Rather, they tried to suggest, without evidence, that adherence to the
zoning ordinance would impose a financial burden on Applicant’s preferred use of
the subject property.    Objectors maintain that, in concluding their testimony,
Ernzer and Panko alleged the restaurant could not be any smaller than 3,000 square
feet as that was the minimum size required for the proposed development to be
successful. Not only is this statement wholly unsupported by expert evidence or
testimony, Objectors assert, it is also insufficient to establish unnecessary hardship.
Del Greco v. Zoning Hearing Bd. of Borough of Whitehall (Pa. Cmwlth., No. 367
C.D. 2011, filed June 15, 2012), 2012 WL 8666769 (unreported) (citing Larsen v.
Zoning Hearing Bd. of City of Pittsburgh, 672 A.2d 286 (Pa. 1996) (mere desire to
provide more room does not satisfy unnecessary hardship required for variance)).


             For these reasons, Objectors ask that this Court reverse the decisions
of the trial court and the ZHB that granted Applicant’s variance requests.


                                     2. Analysis
             Initially, we note, this Court may not substitute its interpretation of the
evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807 (Pa. Cmwlth. 2005). It is the ZHB’s function to weigh the evidence
before it. Id. The ZHB is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Id. Further, we must view the evidence in a light
most favorable to the prevailing party, who must be given the benefit of all
reasonable inferences arising from the evidence. In re McGlynn, 974 A.2d 525
(Pa. Cmwlth. 2009).



                                          12
            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.

Tri-County Landfill, 83 A.3d 488 at 520.


            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. The same criteria apply to use and dimensional
variances. Id. However, in Hertzberg, our Supreme Court set forth a more relaxed
standard for establishing unnecessary hardship for dimensional variances, as
opposed to use variances.


            Under Hertzberg, courts may consider multiple factors in determining
whether an applicant established unnecessary hardship for a dimensional variance.
These factors include: “the economic detriment to the applicant if the variance was
denied, the financial hardship created by any work necessary to bring the building
into strict compliance with the zoning requirements and the characteristics of the
surrounding neighborhood.” Id. at 50.




                                        13
             Although Hertzberg eased the requirements, it did not remove them.
Tri-County. Thus, an applicant must still present evidence as to each of the
conditions listed in the zoning ordinance, including unnecessary hardship. Id.
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. Id.


             Nevertheless, as this Court explains: “Hertzberg articulated the
principle that unreasonable economic burden may be considered in determining the
presence of unnecessary hardship.” Soc’y Hill Civic Ass’n v. Phila. Zoning Bd. of
Adjustment, 42 A.3d 1178, 1188 (Pa. Cmwlth. 2012) (quoting Yeager v. Zoning
Hearing Bd. of City of Allentown, 779 A.2d at 598). Further, in Marshall v. City
of Philadelphia, 97 A.3d 323 (Pa. 2014), the Pennsylvania Supreme Court stated:
“This 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.” Id. at
330 (emphasis in original).


             In Marshall, which also involved a zoning board’s grant of a variance,
our Supreme Court stated: “It is the function of the [ZHB] to determine whether
the evidence satisfies the criteria for granting a variance.”      Id. at 331.    The
Supreme Court also reminded this Court: “An appellate court errs when it
substitutes its judgment on the merits for that of a zoning board.” Id. (citation
omitted). Thus, in reversing this Court’s decision that overturned decisions of a



                                         14
court of common pleas and a local zoning board that granted an applicant’s request
for a use variance, the Supreme Court explained:

             While an appellate court might disagree with the [zoning
             board’s] decision, the decision was within the bounds of
             reason and therefore represented a sound exercise of
             discretion.    The Commonwealth Court’s decision
             indicates no evidence to the contrary. There was no
             abuse of discretion here. It was error, therefore, for the
             Commonwealth Court to substitute [its] judgment on the
             merits for that of the [zoning board]. Doing so was
             beyond the scope of [the court’s] power to review.

Id. at 334 (citations and quotations omitted). The Supreme Court in Marshall
explained a zoning board’s findings are owed deference, particularly its
determination that a variance applicant satisfied the unnecessary hardship criterion.
This is particularly so in light of a zoning board’s “expertise in and knowledge of
local conditions.” Id. at 333.


             Here, Applicant sought three dimensional variances in order to: (1)
reduce the required number of parking spaces from 57 to 53; (2) permit portions of
25 of the parking spaces to encroach between 3 to 10 feet into the required
minimum 10-foot front yard; and, (3) permit portions of 9 of the parking spaces to
encroach 15 feet into the required minimum 15-foot side yard.


             Before the ZHB, Objectors’ counsel raised two objections to the grant
of the requested variances.      First, he asserted the private easement impacted
Applicant’s proposed development of the subject property.          Additionally, he
argued Applicant did not prove unnecessary hardship would result if the ZHB




                                         15
denied the variances. Objectors presented no witness testimony or documentary
evidence with the exception of the easement agreement.


               In rejecting Objectors’ assertions and granting Applicant’s three
dimensional variance requests, the ZHB made the following pertinent findings and
conclusions:

               13. … [T]estimony was given by [Ernzer] … who stated
               in regard to the hardships suffered by [Applicant],
               ‘[E]ssentially, the hardship is the same hardships as we
               asked for the first time through. It is the unique shape of
               the lot. It is a triangular lot instead of a typically square
               or rectangular lot. There are two front yard[s] as opposed
               to one. Most development sites have one front [yard],
               one rear yard and two side yards. In this case we have
               either front yards or side yards or one front yard or two
               front yards, one rear yard and one side yard.’ [N.T. at]
               20.

               14. [Ernzer] further testified, ‘The property cannot be
               reasonably developed or redeveloped in strict
               conformance to the [zoning] ordinance without granting
               the variance[s].’ [N.T. at] 21.

               15. [Ernzer] also gave testimony in regard to the [e]ffect
               the variance[s] would have on the neighborhood and
               public welfare by stating, ‘The variance[s] will not alter
               the character of the neighborhood or be detrimental to the
               public welfare.’ [N.T. at 21].

               16. [Ernzer] also gave testimony in regard to the size
               constraints of the building by stating, ‘a restaurant of
               3,000 square feet you can’t really get any smaller than
               that. We are doing an Arby’s right now. It is 2,800 or
               2,900 feet. That is a fast food restaurant. Most sit-down
               restaurants, I mean, are in the five to six to 7,000 square
               feet. So the restaurant really could not be reduced in any
               way shape or form.’ [N.T. at] 22.


                                            16
             8. [Ernzer] credibly testified that the triangular shape of
             the lot and the presence of two front yard[s] represented a
             physical hardship to the development of the at issue lot.
             [N.T. at 20-21].

             9. As Applicant’s proposed use of the [subject property]
             is a permitted use, the character of the use is not
             detrimental to the character of the neighborhood.

             10. Further, [Ernzer] credibly testified that the variance
             will not alter the character of the neighborhood or be
             detrimental to the public welfare. [N.T. at 21].

             11. Objectors[’] complaints in regard to a private
             easement and its effect on the subject property are not a
             proper matter for the [ZHB] to decide on.

             12. Applicant has met [its] burden to establish [its]
             request for [the dimensional variances]. As such,
             Applicant is entitled to [the dimensional variances].

F.F. Nos. 13-16, Concls. of Law Nos. 8-12 (emphasis added). As evidenced by the
record citations accompanying its findings, the ZHB’s necessary findings are
adequately supported. See N.T. at 20-23.


             In turn, these findings support the ZHB’s determinations that
Applicant satisfied the necessary criteria to obtain the requested variances. In
particular: (1) Applicant proved unnecessary hardship would result if the variances
were denied because of the subject property’s triangular shape and the fact that it
has no rear yard, which could otherwise be used for parking with no minimum
required setback, see Table 201(C) of the zoning ordinance (minimum rear yard
setback in C-2 district is “0 feet”); (2) because of its triangular shape, the subject
property could not be developed in strict conformity with the zoning ordinance and
a variance is necessary to enable reasonable use of the subject property (Ernzer


                                         17
credibly testified the subject property could not be reasonably developed or
redeveloped without the requested variances, N.T. at 21); (3) the hardship is not
self-inflicted (this is undisputed here); (4) granting the variances would not alter
the essential character of the neighborhood or be detrimental to the public welfare
(Ernzer credibly testified the grant of the variances would not alter the character of
the neighborhood and would not be detrimental to the public welfare, N.T. at 21);
and, (5) the variances sought are the minimum variances that would afford relief
and represent the least modification possible of the applicable zoning ordinance
provisions (based on Ernzer’s credible testimony, the ZHB could properly infer
that Applicant’s proposed restaurant and retail use was the minimum necessary to
be viable, N.T. at 22-23; Ernzer also credibly testified the subject property could
not be reasonably developed or redeveloped in strict conformance with the zoning
ordinance absent the grant of the variances, N.T. at 21; and, Applicant
unsuccessfully attempted to create “more than one” alternative site plan for the
subject property, N.T. at 23).


             In short, as the respected trial court explained:

                   [Applicant] claims that the requested variances are
             necessary due to the triangular shape of the lot.
             [Applicant] stated that the [subject] [p]roperty is different
             from other lots because it only has three yards and no
             backyard. [Ernzer] testified that the [subject] [p]roperty
             cannot be developed due to the triangular shape of the
             lot. He explained that the [subject property] only has
             three yards but no rear yard. [Applicant] presented
             evidence that due to the physical circumstances, there is
             no possibility the [subject] [p]roperty can be developed
             in strict conformity with the [zoning] [o]rdinance.
             [Panko] … asserted that [Applicant] worked through
             several site plans and could not come up with one that


                                          18
             met the [zoning ordinance]. The unnecessary hardship
             was not created by [Applicant] in this case. [It] did not
             create the shape of the lot or the location of the
             roadways. Furthermore, [Applicant] presented sufficient
             evidence to show that the variance[s], if authorized, will
             not alter the essential character of the neighborhood and
             [they are] not detrimental to the public welfare. The
             character of the neighborhood is commercial and
             developing the [subject property] as a restaurant will not
             alter that. Finally, [Applicant] presented evidence that
             the variance[s], if authorized, will represent the minimum
             variance[s] that will afford relief and will represent the
             least modification possible of the regulation in issue.
             Regarding encroachment of parking into the front yard,
             parking already exists in that location. Additionally, the
             [subject] [p]roperty can fit 53 parking spaces but not the
             required 57. [Applicant] presented evidence that [it]
             attempted to come up with a site plan [that] met the
             [zoning ordinance].

Tr. Ct., Slip Op., 11/10/16, at 3-4.


             In addition, the ZHB’s supported findings and determinations
distinguish this case from the line of cases discussed by this Court in Dunn, relied
on by Objectors. In those cases, no hardship was proven or the asserted hardship
amounted to the landowner’s mere desire to increase profitability. Based on the
ZHB’s supported findings and determinations here, Applicant proved the requisite
unnecessary hardship.


             Nor is this a case like our unreported decision in Del Greco, also
relied on by Objectors, where the asserted hardship arose from the impact of
zoning regulations on the entire district rather than the unique physical
characteristics of the property. Further, in Del Greco, the applicants admitted they
could use the property in conformance with the ordinance without the need for


                                        19
variance relief.   Such is not the case here.       Thus, Del Greco is factually
distinguishable.


             Moreover, contrary to Objectors’ assertions, in light of our Supreme
Court’s pronouncements in Marshall, Applicant was not required to prove that the
constraints on development of the subject property imposed a burden on all
dimensionally compliant uses or that the subject property could only be developed
for another use at prohibitive expense. This is particularly true, where, as here,
Applicant seeks only dimensional variance relief and the unnecessary hardship
criterion is relaxed. Also, contrary to Objectors’ contentions, Applicant did not
base its argument regarding unnecessary hardship solely on economic
considerations or the personal opinion of its witnesses that the proposed
development would not be marketable in accordance with present zoning; rather,
Applicant asserted (and the ZHB found) the subject property’s unique physical
characteristics or conditions, its triangular shape (and lack of a rear yard, which
would require no minimum setback), created the hardship. Additionally, through
Ernzer’s testimony, Applicant proved that the subject property could not be
reasonably developed in strict conformance with the zoning ordinance absent the
grant of the requested variances.


             Further, while Objectors are correct that, during his testimony, Ernzer
referenced the numerous variances the ZHB previously granted in connection with
the prior development of the subject property, as is evident from the ZHB’s
findings and conclusions, the ZHB did not base its decision on the grant of those
prior variances. Rather, it relied on the testimony of Applicant’s witnesses as to



                                        20
each of the necessary variance criteria.              Thus, the ZHB’s decision is not
inconsistent with this Court’s holdings in Omnivest and Mobil Oil, to the extent
that these cases indicate that each variance request must rest on its own facts and
proof of the elements necessary to obtain the variance rather than on evidence of
the grant of prior variances.5         Additionally, while Objectors take issue with
Ernzer’s mention of the variances granted in connection with the prior
development of the subject property, Objectors did not object to Ernzer’s
testimony on this point when he provided it to the ZHB.


                                  B. Easement/Site Plan
                                      1. Contentions
              In addition, Objectors contend the ZHB erred in neglecting to
consider the easement agreement and the requested variances via a site plan. To
that end, Objectors assert the ZHB erred when it ignored the express requirements
of the zoning applications and the requirements related to plan submission set forth
in its own zoning ordinance. Objectors argue the plain language of paragraph 7 of
the zoning applications expressly requires an applicant to submit a plot plan along

       5
          In any event, Omnivest v. Stewartstown Borough Zoning Hearing Board, 641 A.2d 648,
652 (Pa. Cmwlth. 1994) and Mobil Oil Corp. v. Zoning Board of Adjustment of Borough of
Dauphin, 291 A.2d 541 (Pa. Cmwlth. 1972), relied on by Objectors, are distinguishable. In
Omnivest, this Court held that a variance applicant could not rely on the grant of an expired
variance in order to meet its burden on a new application because each variance application and
case is typically “dealt with anew and apart.” Id. at 651. We stated, “any subsequent variance
application, even one seeking the same variance for the same parcel of land, is a new application
and the applicant must prove all elements necessary to the variance. To hold otherwise would
negate the ordinance provisions limiting the duration of the variance authorization and would
create confusion in zoning matters involving expired variances.” Id. Further, in Mobil Oil, we
rejected a use variance applicant’s reliance on the mere fact that in the past the zoning board
granted a variance permitting the same type of use as the use proposed by the applicant in the
zoning district at issue. Thus, neither Omnivest nor Mobil Oil compels the result Objectors seek
here.



                                               21
with a zoning application. Further, Sections 306.2(b) and 359-26(C) of the zoning
ordinance require that such plans show “all existing streets, rights-of-way, and
easements related to the development.” Objectors maintain the ZHB completely
ignored these requirements. As such, it erred by not requiring Applicant to submit
a plot plan depicting the easement described in the easement agreement as required
by its zoning applications and the terms of the zoning ordinance.


                                    2. Analysis
             With regard to Objectors’ argument that Applicant’s variance
applications were deficient because they did not include a plot plan that depicted
the easement, our review of the transcript before the ZHB reveals Objectors did not
raise this issue. Thus, it is waived. Mack v. Zoning Hearing Bd. of Plainfield
Twp., 558 A.2d 616 (Pa. Cmwlth. 1988) (objectors waived issue by failing to raise
it before zoning board).


             In any event, as to Objectors’ contentions regarding the existence of
the private easement, “the protection of a private easement is a title concern, not a
zoning concern.” McClay v. Zoning Hearing Bd. of U. Chichester (Pa. Cmwlth.,
No. 1280 C.D. 2007, filed February 25, 2010), Slip Op. at 6, 2010 WL 9512170 at
*3 (unreported) (emphasis added). Indeed, as we recently explained at length in
BR Associates v. Board of Commissioners of Township of Upper St. Clair, 136
A.3d 548 (Pa. Cmwlth. 2016), issues concerning property rights in instruments of
title must be resolved in the courts. Therefore, we discern no error in the ZHB’s
determination that Objectors’ complaints regarding the private easement and its
effect on the subject property were not proper considerations upon which the ZHB
could base its decision. Concl. of Law No. 11.

                                         22
                     III. Conclusion
For all the foregoing reasons, we affirm.




                          ROBERT SIMPSON, Judge




                            23
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Monmalt Partners and                   :
Stroschein Pointe Partners,            :
                         Appellants    :
                                       :
            v.                         :   No. 1992 C.D. 2016
                                       :
Zoning Hearing Board of the            :
Municipality of Monroeville            :
                                       :
            v.                         :
                                       :
Municipality of Monroeville and        :
Key Development Partners, LLC          :


                                  ORDER

            AND NOW, this 4th day of May, 2017, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED.




                                      ROBERT SIMPSON, Judge
