          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elmer Dunbar and Linda                  :
Dunbar, his Wife,                       : No. 1907 C.D. 2015
                                        : Argued: June 6, 2016
                         Appellants     :
                                        :
                  v.                    :
                                        :
Zoning Hearing Board of the             :
City of Bethlehem and Grace             :
Kelleher, Martha Popichak, and          :
Andrew Popichak and William             :
Tomino and Joan Tomino                  :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY SENIOR JUDGE FRIEDMAN                        FILED: July 18, 2016


            Elmer Dunbar and Linda Dunbar, his wife (Dunbar), appeal from the
September 11, 2015, order of the Court of Common Pleas of Northampton County
(trial court) denying and dismissing Dunbar’s appeal from the decision of the Zoning
Hearing Board (ZHB) of the City of Bethlehem (City), which granted William and
Joan Tomino (Tomino) a special exception and a dimensional variance. We affirm.


            Tomino owns property on a 5,225-square-foot corner lot located at 1037
Main Street (Property) in the City.     The Property is zoned RT High Density
Residential District (RT) and is one block from Moravian College. Tomino operates
a deli on the Property, which is a nonconforming use. The Property has had various
nonconforming uses since 1926. The deli has been in operation since the ZHB
approved a change in the use of the Property from an insurance office to a deli in
April 1998.1 (ZHB Findings of Fact, No. 5.)


              In October 2013, Tomino filed an application with the ZHB for a special
exception to change the nonconforming deli use to a nonconforming restaurant use,
as defined in the City’s Zoning Ordinance (Ordinance). Tomino also requested a
dimensional variance to expand the nonconforming restaurant from 540 square feet to
1,080 square feet.


              On November 20, 2013, the ZHB held a hearing at which Tomino and
numerous objectors appeared.2             The ZHB found that “[i]n the present zoning
ordinance, ‘delicatessen’ is not a permitted use in and of itself; a delicatessen falls
under the ambit of ‘restaurant’ in the new zoning code.” (Id., No. 6.) Unlike
surrounding restaurants, the deli has limited hours of operation and delivery
restrictions. (Id., No. 7.) The deli is only 18 feet by 30 feet and has one refrigerated
case for meats, one refrigerated case for drinks, and one preparation area. 3 (Id., Nos.
9, 10.) The deli is take-out only, and there are no tables inside. (Id., No. 11.) The



       1
         The April 1998 decision limited the deli’s hours of operation to 10:30 a.m. to 6:00 p.m.
Monday through Friday and 11:00 a.m. to 6:00 p.m. Saturday. Tomino agreed to waive the right to
request any changes to the conditions in the 1998 decision unless there was a change in use.

       2
        Objectors included Al Bernotas, Joel Dellinger, Elmer Dunbar, Grace Kelleher, Andrew
Popichak, and Martha Popichak.

       3
        The ZHB noted that Tomino is unable to have a grill or fryer in the deli and can only make
sandwiches and food that can be warmed in a microwave or crockpot. (ZHB Op. at 8 n.5.)



                                                2
ZHB found that the space is “totally inadequate for preparation of food and storage of
goods.” (Id., No. 12.)


             The ZHB further found that Tomino needs to expand the floor area to
add tables and two handicap-accessible restrooms as required by Title III of the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§12101-12213. (Id., No.
13.) Tomino plans to add: three tables with four chairs at each table, a new door with
a handicap-accessible ramp, new curbing to support the off-street parking lot,
ventilation between Tomino’s buildings, and two handicap-accessible bathrooms.
Tomino also plans to renovate the exterior of the building and increase the hours of
operation to 10:00 a.m. to 11:00 p.m., seven days per week. (Id., Nos. 13-15, 18, 20-
21, 26.) The Property is within one block of Moravian College’s dining hall and a
24-hour laundromat. (Id., Nos. 24-25.) There are also several other restaurants in the
area. (Id., No. 28.) The deli has been operating at a financial loss since 2010, and
Tomino seeks expansion for the survival of the business, as it is necessary for the
reasonable use of the Property. (Id., Nos. 27, 30.)


             The ZHB determined that Tomino met the general requirements for a
special exception to change from the nonconforming deli use to a nonconforming
restaurant use.   (ZHB Op. at 11-12.)      The change is consistent with the spirit,
purpose, and intent of the Ordinance; encourages the most appropriate use of the
land; does not overcrowd the land; conserves the value of the land; benefits the
neighborhood; does not increase traffic congestion; provides adequate light and air;
and protects from fire, flood, and other dangers. (Id. at 12-14.) Further, the ZHB
determined that the restaurant use is consistent with the character of the district, as


                                           3
there are other restaurants and businesses in the area. (Id. at 14.) The ZHB found
that the restaurant use conforms with all applicable Ordinance requirements, except
for the expansion beyond 50 percent, will not increase traffic, and has adequate off-
street parking. (Id. at 14-15.) Thus, the ZHB determined that Tomino met all the
applicable criteria for a special exception.


              With regard to the dimensional variance to increase the restaurant’s size
beyond 50 percent, the ZHB determined that Tomino met all the applicable criteria
for a variance. (Id. at 16, 22.) The ZHB also found that an unnecessary hardship
would result if the dimensional variance were denied because, among other things,
the building, which is a nonconforming structure with a nonconforming use, is
“completely inadequate to operate a restaurant use.” (Id. at 20-21.)


              On January 3, 2014, the ZHB granted Tomino’s request for a special
exception and a variance. On January 30, 2014, Dunbar appealed to the trial court,
and Tomino intervened. The trial court determined that the ZHB’s conclusions are
supported by the facts of record and that the ZHB did not err in granting Tomino a
special exception and a variance. (Trial Ct. Op. at 5-7.) Dunbar now appeals to this
court.4




       4
          Where, as here, the trial court takes no additional evidence, our review is limited to
determining whether the ZHB abused its discretion or committed an error of law. Valley View Civic
Association v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa. 1983). An abuse of discretion
will be found only if the ZHB’s findings are not supported by substantial evidence, which is such
relevant evidence that a reasonable person would “accept as adequate to support a conclusion.” Id.
at 640.


                                                4
               Initially, Dunbar5 contends that the trial court erred in determining that
Tomino is entitled to a special exception to change the Property’s current
nonconforming deli use to a nonconforming restaurant use in the RT zoning district.
Dunbar contends that Tomino failed to meet the conditions in article 1323.07 of the
Ordinance. Dunbar states that the change in use will alter the character of the
neighborhood, is contrary to the public interest, and is unnecessary. We disagree.


               A nonconforming use is:

               a use, whether of land or of structure, which does not
               comply with the applicable use provisions in a zoning
               ordinance or amendment heretofore or hereafter enacted,
               where such use was lawfully in existence prior to the
               enactment of such ordinance or amendment, or prior to the
               application of such ordinance or amendment to its location
               by reason of annexation.

Section 107 of the Pennsylvania Municipalities Planning Code (MPC), Act of July
31, 1968, P.L. 744, as amended, 53 P.S. §10107. “A special exception is not an
exception to a zoning restriction, but a use that is expressly permitted.” Broussard v.
Zoning Board of Adjustment of the City of Pittsburgh, 831 A.2d 764, 769 (Pa.
Cmwlth. 2003), aff’d, 907 A.2d 494 (Pa. 2006). The requestor has the burden of
persuading the ZHB that the proposed use satisfies the objective requirements of the
ordinance. Bray v. Zoning Board of Adjustment, 410 A.2d 909, 910 (Pa. Cmwlth.
1980). Once a requestor proves compliance with an ordinance, the burden shifts to
the objector to prove that the special exception use would have an adverse effect on
the general public that is not normally associated with the proposed use. Ruddy v.

      5
          Dunbar had standing as an adjacent property owner.


                                                5
Lower Southampton Township Zoning Hearing Board, 669 A.2d 1051, 1057 (Pa.
Cmwlth. 1995).


               Article 1323.07 of the Ordinance provides:

               A non[]conforming use may be changed to another
               non[]conforming use only under the following conditions:

               (a) Such change shall be permitted only by special
               exception, under the provisions of Article 1325.07, before
               the [ZHB].[6]


       6
          The general requirements and standards applicable to all special exceptions are set forth in
article 1325.07(b) of the Ordinance, as follows:

               The [ZHB] shall grant a special exception only if it finds adequate
               evidence that any proposed use submitted for a special exception will
               meet all of the following general requirements, as well as any specific
               requirements and standards listed for the proposed use. The [ZHB]
               shall, among other things, require that any proposed use and location
               be:

                       (1)     In accordance with the City of Bethlehem
               Comprehensive Plan and consistent with the spirit, purposes, and
               intent of this Ordinance.

                      (2)      In the best interest of Bethlehem, the convenience of
               the community, the public welfare, and be a substantial improvement
               to property in the immediate vicinity.

                      (3)     Suitable for the property in question, and designed,
               constructed, operated and maintained so as to be in harmony with and
               appropriate in appearance with the existing or intended character of
               the general vicinity.

                     (4)      In conformance with all applicable requirements of this
               Ordinance.

(Footnote continued on next page…)
                                                  6
              (b) The applicant shall show that a non[]conforming use
              cannot reasonably be changed to a permitted use.

              (c) The applicant shall show that the proposed change
              will be less objectionable in external effects than the
              existing non[]conforming use with respect to:

                     (1) Traffic generation and congestion including
              truck, passenger car and pedestrian traffic.

                    (2) Noise, smoke, dust, fumes, vapors, gases, heat,
              odor, glare, and vibration.

                     (3)     Storage and waste disposal.

                     (4)     Appearance.




(continued…)

                     (5)     Suitable in terms of permitting the logical, efficient
              and economical extension of public services and facilities such as
              public water, sewers, police and fire protection and public schools.

                     (6)      Suitable in terms of effect on street, traffic and safety
              with adequate sidewalks and vehicular access arrangements to protect
              major streets from undue congestion and hazard.

                     (7)    The proposed use shall not create a significant hazard
              to the public health and safety, such as fire, toxic or explosive
              hazards.

                     (8)     The proposed use shall be suitable for the site,
              considering the disturbance of steep slopes, mature woodland,
              wetlands, floodplains, springs and other important natural features.

Further, under article 1325.07(c) of the Ordinance, the ZHB may impose conditions as necessary to
ensure that the general purpose of the Ordinance is complied with and that the adjacent properties
are safeguarded.



                                                 7
             Here, the ZHB found that the Property “could not reasonably be
converted to a conforming use.” (ZHB Op. at 15.) Further, Tomino presented the
testimony of Pat Curullo, a licensed architect, who testified that the proposed plan
does not overcrowd the land, meets the City’s parking requirements, meets the City’s
requirements under the Ordinance, and results in a more aesthetic and attractive
facility that operates more efficiently.


             Tomino testified that the proposed plan conserves the value of the land
and buildings because without the change, the deli business will ultimately close. A
more attractive building will also benefit the neighborhood. Further, the proposed
plan does not increase the traffic congestion or the population. Tomino testified that
the majority of his business is from Moravian College students, faculty and
employees and people who live near the Property. Tomino also testified that there is
more than adequate parking.


             Tomino’s proposed plan provides for adequate light and air and secures
safety from fire, flood, and other dangers.          The proposed plan requires land
development approval from the City, which includes meeting all existing building
and fire codes.     Further, the proposed plan requires Tomino to construct two
handicap-accessible restrooms and an entranceway. Thus, the Property will be safer
than it is now.


             The Property is in a medium- to high- density residential zoning district
that has three restaurants and a cafeteria within close proximity. Thus, the ZHB
found that the character of the district is suitable for another restaurant use.


                                             8
               We agree with the ZHB that the change from a deli use to a restaurant
use is consistent with the spirit, purpose, and intent of the Ordinance 7 and is
consistent with the most appropriate use of the land, in that the deli existed as a
nonconforming use and will continue in a similar capacity as a restaurant use. A
property owner has a constitutional right to continue a nonconforming use. Richland
Township v. Prodex, Inc., 634 A.2d 756, 767 (Pa. Cmwlth. 1993). The lawful,
nonconforming use establishes in the property owner a vested right that “cannot be
abrogated or destroyed unless it is a nuisance, or it is abandoned by the owner, or it is
extinguished by eminent domain.”              Pennridge Development Enterprises, Inc. v.
Volovnik, 624 A.2d 674, 675 (Pa. Cmwlth. 1993). Tomino’s property rights have not
been abrogated, destroyed, extinguished by eminent domain, or abandoned. Thus,
Tomino has a constitutional right to continue the nonconforming use.


               We agree with the ZHB that the proposed plan conforms with all
applicable requirements of the Ordinance, except for the expansion beyond 50
percent, which is the subject of the dimensional variance request. No other zoning
relief is requested or required. Thus, the ZHB correctly found that Tomino met the
requirements in article 1325.07 of the Ordinance for a special exception.



       7
         The Ordinance’s stated purposes include: promoting the public health, safety, morals, and
general welfare by encouraging the most appropriate use of the land; preventing overcrowding of
the land; conserving the value of the land and buildings; lessening the congestion of traffic on the
roadways; providing adequate light and air; facilitating the adequate provision of transportation,
water, sewage, schools, parks, and other public facilities; giving reasonable consideration to the
character of the district and its suitability for particular purposes; and guiding and regulating the
orderly growth, development and redevelopment of the City in accordance with the City’s
comprehensive plan. (Ordinance, Art. 1301.03.)



                                                 9
             Because Tomino proved that the proposed use met the objective
requirements of article 1323.07 of the Ordinance, the burden then shifted to Dunbar
to demonstrate that the use will be detrimental to the public health, safety, and
general welfare. See Broussard, 831 A.2d at 772. Dunbar must demonstrate more
than unsubstantiated concerns or vague generalities, and “[m]ere speculation as to
possible harm is insufficient.” See id. Further, mere lay testimony of concerns
regarding increased traffic or fire safety is insufficient to support the denial of a
special exception. See Bray, 410 A.2d at 914 (stating that “to warrant a denial, there
must be ‘not only a likelihood, but a high degree of probability’ that the traffic
increase would pose a substantial threat to the health and safety of the community”)
(citation omitted).


             The objectors, including Dunbar, testified before the ZHB regarding
their concerns that: Tomino will not follow through with his promise to upgrade the
Property; there may be excessive exhaust smoke; traffic may increase; and parking
may be a problem. The objectors did not present any expert testimony. Because the
evidence presented is only speculative, Dunbar failed to prove that the use will be
detrimental to the public health, safety, and general welfare. Thus, the ZHB did not
err in granting Tomino a special exception.


             Next, Dunbar contends that the ZHB erred and abused its discretion in
granting Tomino’s request for a variance to increase the size of the proposed
restaurant by 100 percent in violation of article 1323.04 of the Ordinance.8 Dunbar
      8
        Article 1323.04 of the Ordinance provides that a nonconforming use shall only be
expanded as follows:

(Footnote continued on next page…)
                                          10
specifically contends that Tomino did not prove any hardship warranting a variance
because the Property can continue to be used as a deli, the surrounding neighborhood
will be greatly impacted by the expansion, the restaurant use is not a permitted use,
and the expansion of the premises by 100 percent is unnecessary.


             To establish a right to a variance, the landowner must prove an
unnecessary hardship by showing that: (1) there are unique physical circumstances or
conditions of the property; (2) the property cannot be developed in strict conformity
with 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 or be detrimental to the public
welfare; and (5) the variance sought is the minimum variance that will afford relief.
Section 910.2 of the MPC, added by Section 89 of the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10910.2.


             In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh,
721 A.2d 43, 48 (Pa. 1998), the Pennsylvania Supreme Court stated that “the
quantum of proof required to establish unnecessary hardship is indeed lesser when a
dimensional variance, as opposed to a use variance, is sought.”


(continued…)

             (a)     The total building floor area or total land area occupied by the
             nonconforming use or structure, whichever is more restrictive, shall
             not be increased by greater than 50 percent beyond the area that
             existed at the time the use or structure first became nonconforming.




                                               11
             To justify the grant of a dimensional variance, courts may
             consider multiple factors, including 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. Hertzberg adopted a more relaxed standard for a dimensional variance
because “the owner [was] asking only for a reasonable adjustment of the zoning
regulations in order to utilize the property in a manner consistent with the applicable
[zoning] regulations.” Id. at 47.


             Under the doctrine of natural expansion, a nonconforming use may be
expanded in scope as the business increases in magnitude over the ground occupied
by the business owner at the time the zoning ordinance was enacted. Pappas v.
Zoning Board of Adjustment of the City of Philadelphia, 589 A.2d 675, 677 (Pa.
1991). This court must consider whether the variance is necessary for the property
owner’s business to remain financially viable and whether it is “the minimum
necessary to support the business.” Domeisen v. Zoning Hearing Board of O’Hara
Township, 814 A.2d 851, 857-58 (Pa. Cmwlth. 2003). This court must also consider
whether the proposed expansion will be detrimental to the public welfare. Id. at 858.


             Here, we agree with the ZHB that Tomino’s expansion of the
nonconforming restaurant is necessary for the reasonable use of the Property.
Tomino demonstrated the difficulties the current establishment presents to the
operation of the deli and the inadequacies of the building space, having only enough
room for one refrigerated meat case, one refrigerated soda case, and one preparation


                                          12
area. Tomino also testified that he is unable to compete with other local businesses
that have unlimited hours and menu items.


            Curullo testified that the building’s square-footage is totally inadequate
to conduct Tomino’s business. Curullo stated that Tomino needs an additional 540
square feet to install additional equipment, tables and chairs, and ADA-compliant
restrooms and a handicap ramp. Curullo determined that the additional 540 square
feet was “barely the minimum necessary.” (N.T., 11/20/13, at 26.)


            We further agree with the ZHB that the proposed expansion will not
adversely impact the neighborhood but will result in a more aesthetically-pleasing
appearance that is ADA-compliant and in which customers can sit down for a meal.
There is no evidence that the proposed expansion will be detrimental to the health,
safety, or welfare of the surrounding community.


            Lastly, Dunbar contends that the proposed use is not a continuation of an
existing nonconforming use but is a change in use. We disagree.


            In Limley v. Zoning Hearing Board, 625 A.2d 54, 56 (Pa. 1993), the
Pennsylvania Supreme Court held that a proposed public restaurant and bar was a
natural expansion of the existing, nonconforming use as a private social club. The
Court determined that the chief activity of the social club was the sale of food and
beverages and that the activity would remain the same with the proposed restaurant




                                         13
and bar. Id. Because this use was similar to the existing use, it continued as a
preexisting, nonconforming use and did not create a new and different use.9 Id. at 57.


              Here, the proposed restaurant use is a natural expansion of the deli use.
The expansion from 540 square feet to 1,080 square feet is not unreasonable and is
the minimum amount necessary for the restaurant use. Further, the expansion is not
detrimental to the health, safety, or welfare of the community. Thus, the ZHB did not
err in granting Tomino a dimensional variance.


              Accordingly, we affirm.



                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge




       9
          Likewise, in Pappas, the Pennsylvania Supreme Court determined that a nonconforming,
eat-in restaurant was the natural expansion of a nonconforming, primarily take-out sandwich shop
and did not constitute a new and different use. 589 A.2d at 678.


                                              14
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Elmer Dunbar and Linda                 :
Dunbar, his Wife,                      : No. 1907 C.D. 2015
                                       :
                         Appellants    :
                                       :
                  v.                   :
                                       :
Zoning Hearing Board of the            :
City of Bethlehem and Grace            :
Kelleher, Martha Popichak, and         :
Andrew Popichak and William            :
Tomino and Joan Tomino                 :



                                      ORDER


            AND NOW, this 18th day of July, 2016, we hereby affirm the September
11, 2015, order of the Court of Common Pleas of Northampton County.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge
