Schadt v. City of Bethlehem Zoning Hearing Board

119 A.3d 439, 2015 Pa. Commw. LEXIS 278
CourtCommonwealth Court of Pennsylvania
DecidedJune 26, 2015
StatusPublished
Cited by1 cases

This text of 119 A.3d 439 (Schadt v. City of Bethlehem Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schadt v. City of Bethlehem Zoning Hearing Board, 119 A.3d 439, 2015 Pa. Commw. LEXIS 278 (Pa. Ct. App. 2015).

Opinions

OPINION BY

Judge MARY HANNAH LEAVITT.1

Mary E. Schadt (Applicant) appeals an order of the Court of Common Pleas of Northampton County (trial court) denying her request for zoning relief. The trial court affirmed the decision of the City of Bethlehem Zoning Hearing Board (Zoning Board) holding, inter alia, that Applicant failed to demonstrate the requisite hardship for a use variance to convert her [441]*441home into a suite of professional offices. We affirm.

Applicant’s property is located on the corner of West Market and New Streets in the City of Bethlehem’s RT High Density Residential District2 and North Side Historic District. There are three detached buildings on the property. The property’s centerpiece is a 164-year old three-story single-family dwelling that fronts on West Market Street. Behind the home is a detached garage with a vacant apartment above. At a right angle to the house, two small, one-story, book shops are located in a single building along New Street. An apartment has been constructed above one shop, but it is vacant. The book shops, constructed of wood, are connected to each other but not to the house. Shops are not allowed in the RT High Density Residential District, but those on the subject property predate the zoning ordinance and are lawfully non-conforming. The house is a high-value property where Applicant’s' family has lived for 40 years.

Applicant3 applied for a variance under Section 1825.06 of the City’s Zoning Ordinance to convert the existing single-family dwelling into a financial services office, which is a commercial use not permitted in the RT High Density Residential District.4 At a hearing before the Zoning Board, Applicant testified that the financial services office would have eight employees, all of whom would park off site. No retail services would be conducted on the premises, and only two to three clients would visit the office per week. Office hours would be from 8:30 a.m. to 4:30 p.m., Monday through Friday. Applicant testified that no changes would be made to the exterior of the building, any renovations would comply with applicable Historic District guidelines, and signage would be limited to a single address plate.

The surrounding neighborhood contains a mix of residential and commercial uses. On the same block as the property are two single-family dwellings, a four-unit apartment building, a two-unit apartment building, a law office, and a financial planner’s office. The building directly across New Street from the property contains three businesses. Also nearby are two Moravian Academy sites, a cemetery, commercial space, single and multiple-family dwellings, and law offices.

Applicant’s real estate agent testified that the property is atypical because it contains both commercial and residential uses. The combined square footage of the three buildings is 10,000 square feet. The house has a small back yard, no setbacks, and is on a busy corner. Applicant listed the property for sale in May 2013 and had 19 showings, but the presence of the apartments and retail shops presented a challenge; buyers who were interested in the residence were not interested in the commercial and apartment uses and vice versa. [442]*442Potential buyers also could not obtain residential financing to acquire the property. One potential buyer required owner financing, which was not feasible for Applicant. In August 2013, after four months on the market, Applicant reached an agreement of sale with Morning Star.

The Zoning Board concluded that Applicant failed to demonstrate that a physical condition of the property prevents its use in conformance with the Zoning Ordinance and that the variance she requested was the minimum relief necessary. Accordingly, the Zoning Board held that Applicant failed to establish the requisite hardship for a use variance and denied her request for such relief. Applicant appealed to the trial court, which affirmed. The present appeal followed.

On appeal,5 Applicant argues that the Zoning Board erred in determining that she was not entitled to a use variance. Specifically, ■ Applicant contends that the presence of non-conforming commercial uses on the property is itself a unique physical condition which, in combination with the zoning regulations, creates an unnecessary hardship. We disagree.

An applicant for a variance must establish all of the following elements:

(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.

Taliaferro v. Darby Township Zoning Hearing Board, 873 A2d 807, 811-12 (Pa.Cmwlth.2005).6

This Court may not substitute its judgment on the merits for that of a zoning board whose decision “was within the bounds of reason and therefore represented a sound exercise of discretion.” Marshall v. City of Philadelphia, 626 Pa. 385, 97 A.3d 323, 334 (2014). An applicant is not required to show that the property is valueless without the variance, but she must show more than “mere economic hardship.” Id. at 330. This is particularly true where “a variance is sought in order to make a change from an existing use consistent with the zoning code to an inconsistent use.” Id. In assessing the evidence, “[i]t is the function of the zoning board to determine whether the evidence satisfies the criteria for granting a variance. The zoning board, as fact-finder, is the sole judge of credibility.” Id. at 331 (internal citations omitted).

We agree with the Zoning Board that Applicant’s evidence did not establish an unnecessary hardship. Applicant and her family have used the historic single-family home as their residence for 40 years. The home has been used by other families for this purpose for over a century. This history belies the claim that the property cannot be used without a variance. Fur[443]*443ther, an inability to sell the property in less than four months does not represent a hardship that would justify a variance. At most it is a “mere economic hardship.” Id. at 332. In fact, Applicant did receive an offer that would continue the residential use but required owner financing. Although owner financing may not have been feasible for Applicant, the offer demonstrates a bona fide interest in the property as is. The next offer may be more attractive.

We disagree "with Applicant’s contention that the presence of the nonconforming book shops on the property constitutes a unique physical condition that, by definition-, prevents the use of the property in conformance with the Zoning Ordinance. The cases cited by Applicant for that principle concerned the natural expansion of a lawful nonconforming use, which is a constitutionally protected vested property right that is simply not present here.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fowler v. City of Bethlehem Zoning Hearing Bd.
187 A.3d 287 (Commonwealth Court of Pennsylvania, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
119 A.3d 439, 2015 Pa. Commw. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schadt-v-city-of-bethlehem-zoning-hearing-board-pacommwct-2015.