OWPH Devco, LLC v. ZHB of the Municipality of Monroeville & Municipality of Monroeville

• Court: Commonwealth Court of Pennsylvania
• Decided: December 8, 2025
• Docket: 117-121 C.D. 2025
• Status: Unpublished

Opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

OWPH Devco, LLC, : CASES CONSOLIDATED Appellant : : Nos. 117 - 121 C.D. 2025 v. : : Argued: November 6, 2025 Zoning Hearing Board of the : Municipality of Monroeville and : Municipality of Monroeville :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE DUMAS FILED: December 8, 2025

In these consolidated appeals, OWPH Devco, LLC (OWPH) appeals from the orders entered by the Court of Common Pleas of Allegheny County (trial court), which affirmed five related decisions of the Zoning Hearing Board (Board) of the Municipality of Monroeville, Pennsylvania. OWPH contends that the trial court erred by affirming the Board’s denial of its applications for dimensional variances under Monroeville’s zoning ordinance.1 We affirm. I. BACKGROUND2 OWPH applied for five dimensional variances to build a 672-square- 1 Monroeville Zoning Ordinance (Zoning Ordinance), adopted Dec. 11, 1984 (Ord. No. 1443). 2 “Generally, when we state the facts, we view the record in the light most favorable to the prevailing party, including the benefit of all logical and reasonable inferences, unless we determine that material findings of fact are unsupported by substantial evidence of record.” Four Seasons Logging, LLC v. Dep’t of Lab. & Indus., 308 A.3d 345, 347 n.2 (Pa. Cmwlth. 2024) (citation foot, two-sided billboard on a vacant parcel, which the parties refer to as the “East Property,” in between two routes (a modern interstate highway, Interstate 376, and its predecessor, known as Old William Penn Highway). The East Property is irregularly shaped, approximately 300 feet long and varies in width from 160 to 70 feet, steeply sloped, and divided by a stream. The Board held several hearings on August 2, 2023, September 6, 2023, and October 4, 2023. At those hearings, OWPH called several witnesses: Michael Tantala, Andrew Schwartz, and Patrick Wolfington. The Board called Paul Whealdon as a witness at the October hearing. Notes of Testimony (N.T.), 10/4/23, at 14. OWPH did not object to Whealdon’s testimony and cross-examined Whealdon. We detail their testimony below. At the end of the October 4th hearing, the Board unanimously closed the record. Id. at 29 (stating “testimony now in this matter is closed”). Because one of the Board members was absent, the Board scheduled its decision on OWPH’s application for the November meeting. Prior to the November meeting, OWPH requested that the Board defer its decision until the December meeting. N.T., 11/1/23, at 6. OWPH was not present at the November meeting when the Board agreed to OWPH’s continuance.3 Id. At the December meeting, the Board denied OWPH’s applications and mailed out five single-page decisions (one for each variance). OWPH timely appealed to the trial court, and the Board filed its

omitted); see Leon E. Wintermyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 486-87 (Pa. 2002) (Wintermyer). We cite to the record docketed at 117 C.D. 2025. 3 The solicitor noted the presence of residents who wished to testify regarding OWPH’s application but advised against permitting their testimony because the record was closed. See N.T., 11/1/23, at 7. The solicitor added, “I don’t think it is fair to [OWPH] if they are not here that people would get up and testify about the matter.” Id. at 8. The Board nevertheless proceeded without OWPH’s presence and permitted attendees to make unsworn statements. Id. at 9-15. We resolve this below.

2 findings of fact and conclusions of law. In relevant part, the Board was persuaded by the testimony of Whealdon and did not believe the testimony presented by OWPH. See Bd.’s Findings of Fact & Conclusions of Law, 1/18/24, at 4-5. The trial court took no new evidence and affirmed. Initially, the court rejected some of the Board’s findings of fact as unsupported by substantial evidence. Trial Ct. Op., 12/30/24, at 6-7. However, the court agreed with the Board’s rejection of OWPH’s evidence that the property could not be developed in strict conformity with the zoning ordinance. Id. at 7-8. In support, the court summarized the testimony of both parties’ witnesses. Id. The court concluded that OWPH failed to overcome the evidence that “a smaller billboard can be constructed on the property or face a different direction.” Id. at 10 (citation modified). OWPH timely appealed, and the trial court did not order a Pa.R.A.P. 1925(b) statement. II. ISSUES4 OWPH raises two issues. First, OWPH contends that the Board erred by denying its “requested variances in connection with a permitted billboard” on essentially two grounds: OWPH proved (1) the property cannot be developed in strict conformity with the ordinance; and (2) unnecessary hardship. OWPH’s Br. at i, 5. Second, OWPH asserts that the Board erred by holding that the requested variances would “alter the essential character of the neighborhood, substantially or permanently impair the use of adjacent property[,] or be detrimental to the public welfare[.]” Id. at 5.

4 OWPH’s brief identifies two issues in its statement of questions but divides its argument into four parts. OWPH’s Br. at i; see generally Pa.R.A.P. 2119 (requiring the argument section of the brief to be “divided into as many parts as there are questions to be argued”).

3 III. DISCUSSION5 1. Arguments In support of its first issue, specifically the “strict conformity” grounds, OWPH argues that the property can only be used for a billboard facing the interstate highway. OWPH’s Br. at 28-30. In its view, a smaller billboard would not be financially viable. Id. at 30-33. Moreover, according to OWPH, the trial court “wrongly affirmed” the Board’s decision based on Whealdon’s testimony. Id. at 33- 35. OWPH emphasizes their witnesses’ testimony that no billboard could be built that strictly conformed with the ordinance. Id. at 34 (“There is no substantial evidence to support the assertion that a billboard . . . can be developed on the . . . property in strict conformity with the zoning ordinance . . . .”). OWPH assails contradictory testimony presented by the Board’s witness as “flawed” and “refuted” by OWPH’s own evidence. Id. at 35. Per OWPH, it could not build a conforming billboard without variances. Id. at 36-38. OWPH also assails the Board’s credibility findings as “untenable.” Id. at 45. In support, OWPH begins with the Board’s conclusion that OWPH failed to present evidence that a billboard that conformed to the ordinance could not be built. 5 “Where a court of common pleas takes no additional evidence in reviewing a land use appeal determination by a zoning hearing board, this Court’s . . . review is limited to determining whether the local governing body that issued the challenged decision abused its discretion or committed an error of law.” In re City Turf Club Op Co., 308 A.3d 351, 357 (Pa. Cmwlth. 2024) (Turf). “Local governing bodies abuse their discretion by making factual findings that are not supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation modified); see also 2 Pa.C.S. § 754. “Assuming the record contains substantial evidence, we are bound by the [Board’s] findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence. A zoning board may reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.” In re AZ Broad St. LLC (Pa. Cmwlth., No. 1354 C.D. 2021, filed Jan. 22, 2024), 2024 WL 222516, *2 n.9 (citation modified) (AZ); see generally Wintermyer, 812 A.2d at 484. We may conditionally cite unreported decisions of this Court. Pa.R.A.P. 126(b).

4 Id. OWPH disagrees, citing to testimony that OWPH construes as establishing that building a billboard aimed at the Old William Penn Highway was economically impractical, would require greater variance relief, and was unsafe. Id. at 45-46 (arguing that its witnesses “testified that a billboard constructed along the East Property’s Old William Penn Highway frontage, especially one built in conformity with the Zoning Ordinance, would be essentially useless as it would be virtually invisible” (citations omitted)).6 The Board counters that OWPH did not challenge testimony from Whealdon that OWPH could erect billboards in strict conformity with the ordinance. Bd.’s Br. at 18 (citing N.T., 10/4/23, at 15-20, for the proposition that a visible billboard could be built facing Old William Penn Highway). 2. Legal Standards To obtain a variance, an applicant must satisfy five criteria under Monroeville’s zoning ordinance.7 Zoning Ordinance § 359-48.E; accord Section

6 OWPH additionally argues that “an applicant for dimensional variances is not required to show that a property cannot be used for any other permitted purpose in order to prove unnecessary hardship.” OWPH’s Br. at 36 (emphasis added) (discussing Marshall v. City of Phila., 97 A.3d 323 (Pa. 2014)). We address this argument and detail the testimony of the witnesses below. 7 Because Monroeville subsequently amended its ordinance during this appeal, we reproduce the ordinance at issue: 1. 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 the unnecessary hardship is due to the conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located. 2. Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. 3. Such unnecessary hardship has not been created by the appellant. 4. The variance, if authorized, will not alter the essential character of the

5 910.2 of the Municipalities Planning Code (MPC),8 added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a)(1)-(5). Courts often restate the five criteria as four elements: the applicant must prove (1) an unnecessary hardship caused by the property and not created by the applicant; (2) the variance is needed for reasonable use of the property, i.e., the property cannot be developed without the variance; (3) the variance would not alter the character of the neighborhood or harm the public welfare; and (4) the variance is the minimum required. See, e.g., Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 289 (Pa. 1996). There are two types of variances: use and dimensional. A use variance “involves a proposal to use the property in a manner that is wholly outside the zoning regulation.” Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). A dimensional variance is “a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations.” Id. (discussing O’Neill v. Zoning Bd. of Adjustment of Phila. Cnty., 254 A.2d 12 (Pa. 1969)). Because a dimensional variance is considered “of lesser moment” than a use variance, Hertzberg held that a lesser “quantum of proof” is needed to prove the unnecessary hardship element. Id. at 47-48 (declaring “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”). The applicant may prove unnecessary hardship with evidence that “(1) the physical features of the property

neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare. 5. The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. Zoning Ordinance § 359-48.E. 8 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

6 are such that it cannot be used for a permitted purpose; or (2) that the property can be conformed to a permitted use only at a prohibitive expense; or (3) that the property has no value for any purpose permitted by the zoning ordinance.” Metal Green v. City of Phila., 266 A.3d 495, 509 (Pa. 2021) (plurality) (summarizing Hertzberg). Hertzberg’s “sole focus was on the unnecessary hardship requirement” and not on other factors, such as whether the requested “variance was the minimum variance that would afford relief and was the least modification of the ordinance.” Id. Nevertheless, “an applicant must still present evidence as to each of the conditions listed in the zoning ordinance, including unnecessary hardship.” Tri- Cnty. Landfill, Inc. v. Pine Twp. Zoning Hr’g Bd., 83 A.3d 488, 520 (Pa. Cmwlth. 2014) (Landfill) (citation modified). When an applicant has not shown hardship, “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. (citation omitted); accord Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011) (same).9 In addition to unnecessary hardship, the ordinance lists other conditions for a variance, including whether the property cannot “be developed in strict conformity” with the ordinance and whether the proposed variance would “be detrimental to the public welfare,” e.g., be unsafe. See Zoning Ordinance § 359- 9 Since “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 unnecessary hardship. It may also have somewhat relaxed the degree of hardship that 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.” Singer, 29 A.3d at 149 (emphases in original) (citation omitted).

7 48.E(2), (4). Courts have consistently required applicants to prove all variance elements. For example, our Supreme Court reversed the grant of a dimensional variance, in which the applicant failed to prove that the property could not be used profitably for any permitted purpose under the ordinance. O’Neill, 254 A.2d at 15- 16. The applicant owned a parking lot, and he applied for a variance to build a 26- story apartment building because the ordinance limited the maximum height to 12 stories.10 Id. at 14. The board granted the variance. Id. It was “not disputed” that the applicant could not “profitably build and operate an apartment building of less than twenty-six floors on this site.” Id. at 15 (citation modified). Nevertheless, O’Neill reversed on two grounds. Id. First, the applicant “failed to prove that the property cannot continue to be utilized profitably in its present state as a” parking lot. Id. Second, the applicant failed to prove “the property could not profitably be used for some purpose which comports with the zoning requirements.” Id. The applicant, per O’Neill, failed to present any evidence “that the property” could not be “profitably used in some fashion which” did not violate the ordinance. Id. at 16. “The fact that one particular project may not be financially feasible under the ordinance [was] not determinative.” Id. It was not determinative because the applicant failed to present “evidence that the property cannot be profitably used within the present space requirements,” i.e., the applicant had to prove the current use as a parking lot could not be profitable under the ordinance.11 Id. 10 The ordinance limited building size to a maximum of 84,646 square feet, which was roughly “ten to twelve floors.” O’Neill, 254 A.2d at 14. 11 Additionally, the O’Neill Court observed that a variance permitting a 26-story apartment building was “more than a mere technical and superficial deviation from the” ordinance’s dimensional requirements. O’Neill, 254 A.2d at 16 (suggesting that the applicant should request “a rezoning and not a variance”).

8 This Court applied the same principle in resolving the applicant’s dimensional variance to build a six-story motel—a permitted use—in which the ordinance limited the height to two stories. Johnson v. Zoning Hr’g Bd. of Richland Twp., 503 A.2d 1117, 1118 (Pa. Cmwlth. 1986). The board granted the variance, reasoning that the property’s “unique topography” made “the construction of an economically feasible two-story permitted structure virtually impossible, although theoretically physically possible.”12 Id. The board thus granted the variance, the trial court affirmed, and this Court reversed. Id. at 1119. Johnson reversed because the applicant did not present any evidence as to “why the property cannot be used for other purposes permitted by the ordinance.” Id. 3. Discussion As stated herein, OWPH suggests that its witnesses “testified that a billboard constructed along the East Property’s Old William Penn Highway frontage, especially one built in conformity with the Zoning Ordinance, would be essentially useless as it would be virtually invisible,” i.e., economically unviable. See OWPH’s Br. at 45-46 (citing N.T., 8/2/23, at 60-62, 83-84; N.T., 9/6/23, at 48, 55, 74-75). The cited testimony, however, does not support OWPH’s characterization of its witnesses’ testimonies. For example, Tantala testified that a billboard facing the interstate could not be 150 square feet for safety reasons. N.T., 8/2/23, at 60-62.13 Tantala also 12 Specifically: the “storm water drainage problems and the severe slope of the tract make the construction of an economically feasible two-story permitted structure virtually impossible, although theoretically physically possible, and therefore greatly distresses the value of the subject tract.” Johnson, 503 A.2d at 1118. 13 OWPH’s brief states that “Tantala expressly stated he would have safety concerns with a 150 square-foot billboard being constructed anywhere on the Property.” OWPH’s Br. at 46 (citing N.T., 8/2/23, at 60-62). At the cited pages, Tantala was responding to a question about whether safety concerns existed about building a 150-square-foot billboard “at that location.” N.T., 8/2/23, at 61. Tantala responded, in part: “The drivers are traveling well above the posted speed limit in

9 testified that the variances were needed in order for the billboard to be seen from the interstate. N.T., 9/6/23, at 74-75. Schwartz testified that a conforming billboard built on the West—not East—Property would not be visible. N.T., 8/2/23, at 83-84.14 Wolfington testified generally that billboards need to be visible to be economically viable. N.T., 9/6/23, at 48, 55 (referring to the need to have the billboard visible from the interstate).15 Additionally, and most significantly, the record reflects OWPH’s own testimony that a conforming billboard could be physically constructed in a 58- square-foot area adjacent to and facing Old William Penn Highway, although OWPH did not recommend this option. See N.T., 9/6/23, at 69, 95 (reflecting Schwartz’s testimony that “I could build a [conforming] billboard” in that 58-square-foot parcel in the East Property). Notwithstanding such testimony, OWPH maintained that the only viable spot was a different location that was closer to the interstate. E.g., id. at 71-73, 83-84. Balanced against this testimony, Whealdon countered that the parcels

this location it [sic] would raise safety concerns which is why PennDOT itself permits up to 1200 square feet for a sign for speeds and number of lanes along these interstates. Interstates have higher speeds, more traffic, more lanes. It translates into allowing and permitting larger signs that are appropriate for the approach distances, time, and all those things.” Id. at 61-62. We reasonably construe Tantala’s testimony as referring to a billboard facing the interstate—not Old William Penn Highway. See id. 14 OWPH may have cited this testimony in error. 15 OWPH also referenced testimony that a 150-square-foot billboard was not economically viable in contrast to the proposed 672-square-foot billboard. OWPH’s Br. at 31-32 (citing N.T., 9/6/23, at 30-32, 35-36, 48, 56, 61, and 10/4/23, at 11-12). In context, the cited testimony addressed the economic viability of a 672-square-foot billboard on the “area to build,” which faced a “limited access highway[]” i.e., the interstate, where the average speed was 70 mph and PennDOT regulations applied for billboards. Plainly, the testimony addressed the variances needed for an interstate-facing billboard. See id. While OWPH presented extensive testimony about an economically viable billboard at the proposed interstate-facing location, it presented little explicit testimony about whether a conforming billboard facing Old William Penn Highway would be economically viable.

10 at issue “have frontage on Old William Penn and they could construct a visible, conforming billboard or billboards that face Old William and not the” interstate. N.T., 10/4/23, at 15-16. OWPH cross-examined Whealdon. Id. at 24. OWPH’s testimony thus establishes, at best, the following: although conceding that a conforming billboard facing Old William Penn Highway could be built, only one interstate-facing location would support an economically viable billboard and that a 150-square-foot billboard at that location was not economically viable. But O’Neill and Johnson require the applicant to prove that the property cannot profitably be used for any purpose that conforms with the ordinance. O’Neill, 254 A.2d at 15-16; Johnson, 503 A.2d at 1119. Like the O’Neill applicant who wanted to build a 26-story apartment building when the ordinance permitted only 10 to 12 stories, OWPH sought to build a 672-square-foot billboard facing the interstate when the ordinance permitted only a 150-square-foot billboard. See O’Neill, 254 A.2d at 14. Similar to the Johnson applicant who wanted to build a six-story building because a conforming building was not economically viable, OWPH also failed to present evidence as to “why the property cannot be used for other purposes permitted by the ordinance,” e.g., a billboard facing Old William Penn Highway. See Johnson, 503 A.2d at 1118-19. So there is no misunderstanding, OWPH presented affirmative testimony that the only economically viable billboard location was the disputed interstate-facing site. OWPH characterizes this affirmative testimony as necessarily implying a negative conclusion: a conforming billboard facing Old William Penn Highway was not economically viable. OWPH, however, presented little explicit testimony addressing the economic viability of a conforming billboard specifically

11 facing Old William Penn Highway.16 Nevertheless, OWPH and Monroeville presented testimony that a conforming billboard facing Old William Penn Highway could be built. See N.T., 9/6/23, at 95 (reflecting OWPH’s testimony that a conforming billboard could be built in a 58-square-foot area facing Old William Penn Highway); N.T., 10/4/23, at 15-16 (agreeing with counsel’s questions that a “conforming billboard” “visible from Old William Penn” could be built). To the extent OWPH challenged Monroeville’s testimony, the Board evidently credited Whealdon’s testimony. See AZ, 2024 WL 222516, at *2 n.9. Because OWPH failed to prove one of the elements needed for a variance—that the property cannot be developed without the variance—we need not address its other arguments. See Turf, 308 A.3d at 357; Landfill, 83 A.3d at 520. For example, OWPH argues that the trial court misconstrued Marshall, which addressed unnecessary hardship. See OWPH’s Br. at 36-37; Marshall, 97 A.3d at 332 (rejecting this Court’s “articulation of a ‘functionally obsolete’ standard for unnecessary hardship [as] unsupported” by precedent, and noting that the applicant “grounded its unnecessary hardship argument on its assertion that the property could be conformed for a permitted use only at a prohibitive expense” (emphases added)). Marshall does not relieve OWPH of its burden to prove that no conforming structure can be built on the property. Because we affirm the Board based on its determination of a different factor, i.e., whether the property can be developed in strict conformity with the ordinance, we need not address any error in applying the unnecessary hardship factor.17 See Landfill, 83 A.3d at 520. 16 Again, so there is no confusion, OWPH presented extensive testimony and evidence, including speed and crash studies in support of its variance applications for an interstate-facing billboard. OWPH’s position was that an economically viable billboard must face the interstate. 17 The trial court also noted that the Board concluded that the billboard would negatively

12 In sum, OWPH’s evidence suffers from the same flaw identified in O’Neill and Johnson: it only demonstrated that a larger billboard facing the interstate would be economically viable. However, that alone does not establish that a smaller, conforming 150-square-foot billboard facing Old William Penn Highway would be economically unviable, nor did the evidence establish that the property cannot be used for some other permitted purposes. IV. CONCLUSION For these reasons, we affirm the trial court’s orders affirming the Board’s determinations.

______________________________ LORI A. DUMAS, Judge

affect the character of the neighborhood. Trial Ct. Op. at 9 (citing, inter alia, comments by purported residents at the November 1, 2023 meeting). However, because OWPH was not present (because the Board closed the record at the October meeting), the Board erred in relying on those comments. On this record, the Board’s error was not reversible error because OWPH failed to establish error with respect to proving the property could not be used in strict conformity with the ordinance.

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

OWPH Devco, LLC, : CASES CONSOLIDATED Appellant : : Nos. 117 - 121 C.D. 2025 v. : : Zoning Hearing Board of the : Municipality of Monroeville and : Municipality of Monroeville :

ORDER

AND NOW, this 8th day of December, 2025, we AFFIRM the orders entered on December 30, 2024, by the Court of Common Pleas of Allegheny County, which affirmed the five decisions of the Zoning Hearing Board of the Municipality of Monroeville, Pennsylvania.

_____________________________ LORI A. DUMAS, Judge