Smith v. Zoning Hearing Board

619 A.2d 399, 152 Pa. Commw. 427, 1992 Pa. Commw. LEXIS 772
CourtCommonwealth Court of Pennsylvania
DecidedDecember 30, 1992
Docket428 and 429 C.D. 1992
StatusPublished
Cited by6 cases

This text of 619 A.2d 399 (Smith v. 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
Smith v. Zoning Hearing Board, 619 A.2d 399, 152 Pa. Commw. 427, 1992 Pa. Commw. LEXIS 772 (Pa. Ct. App. 1992).

Opinions

SILVESTRI, Senior Judge.

Suburban General Hospital (SGH) appeals two orders of the Court of Common Pleas of Allegheny County reversing a decision of the Zoning Hearing Board (ZHB) of the Borough of Bellevue which granted SGH permission to construct parking lots. We affirm.

When it was constructed, SGH was a permitted use in a district defined as Residential-Second by the zoning ordinance of the Borough of Bellevue (the Borough). The Borough amended its zoning ordinance in 1984 and deleted “institutions” (which includes hospitals) from the permitted uses in the district. SGH thereafter was a valid non-conforming use. At the time of the 1984 amendment, SGH owned four lots contiguous to the hospital. After those amendments, SGH purchased two more lots.1 These six contiguous lots, which are approximately the size of a football field, are the subject of this litigation.

Section 1121.04(a)(ll) of the zoning ordinance provides for “accessory uses on the same lot customarily incident to the [permitted] uses”. Parking is not specifically listed as a separate permitted use. In 1988, SGH asked the Borough’s Town Council to rezone the tract to allow parking as a permitted use but that request was denied. SGH then sought a building permit to construct the parking lot. The Borough’s solicitor notified SGH that the permission was denied because the lots were separate from the lot upon which SGH was built. SGH appealed that denial to the ZHB.

[430]*430Hearings were held before the ZHB on four dates over a three month period. The Borough was represented by its solicitor and appeared in opposition to the request; Karen and Robert Smith, adjoining landowners, also appeared in opposition. At these hearings, SGH presented evidence concerning its severe shortage of parking space. It also presented its plans for landscaping and lighting of the parking lot to make it as unobtrusive as possible. Following the hearings, the ZHB made findings of fact and concluded that SGH should be permitted to construct the parking lots. The ZHB held that such use was permitted as a reasonable expansion of a nonconforming use; the Board also stated that “[t]he permitted expansion is necessary in order to accommodate the requirements of natural growth of the operation of the hospital and is the hardship necessary for granting a variance in this case”. (Decision of the ZHB, Conclusion of Law 6,1/29/91.) Both the Borough and the Smiths appealed the ZHB’s decision to common pleas court.

Without taking additional evidence, the common pleas court reversed the ZHB’s order, concluding that the ZHB had committed two errors of law. The court first concluded that the doctrine of reasonable expansion of a non-conforming use did not apply to property acquired after the use became nonconforming. The court also held that there was no evidence to show that SGH was entitled to a variance. Based upon this reasoning, the court reversed the ZHB’s order insofar as it granted a variance. The court vacated the order granting permission to construct the parking lot as an expansion of a non-conforming use and remanded the matter to the ZHB to make findings of fact on the question of whether a parking lot consisting solely of the properties held by SGH at the time it became a non-conforming use would be detrimental to public health, safety and welfare.

Because of the remand ordered by the common pleas court, SGH petitioned that court to amend the interlocutory portion of the orders to permit an interlocutory appeal by permission because of the existence of a controlling question of law as to which there was substantial ground for a difference of opin[431]*431ion.2 The court treated this petition as one seeking reconsideration and modification. It, thereafter, vacated the original order and entered a new order which simply reversed the entire order of the ZHB, deleting any reference to a remand, stating instead that “[t]he ruling of this court is without prejudice to the right of [SGH] to file an amended application with the [ZHB].... ” (Order of the Court of Common Pleas of Allegheny County, 2/18/92.) SGH then' appealed those final orders to this Court.

On a zoning appeal where the common pleas court did not take any additional evidence, our scope of review is limited to determining if the ZHB committed an error of law or manifestly abused its discretion. Pa. Northwestern Distributors, Inc. v. Zoning Hearing Board, 526 Pa. 186, 584 A.2d 1372 (1991); Curtis Investment Co. v. Zoning Hearing Board of the Borough of West Mifflin, 140 Pa.Commonwealth Ct. 302, 592 A.2d 813 (1991). SGH argues that the ZHB did not commit any legal errors3 and thus should have been affirmed by the common pleas court. We do not agree.

The Supreme Court could not have been more clear when it stated, “While a non-conforming use may be extended in scope as the business increases in magnitude it may not be so extended over ground not occupied at the time of the passage of the zoning ordinance.” Humphreys v. Stuart Realty Corp., 364 Pa. 616, 620, 73 A.2d 407, 409 (1950) (emphasis added). This principle, first expressed over forty years ago, is still the law. We have held that where such expansion is sought a variance is necessary. Schaffer v. Zoning Hearing Board of Upper Darby Toumship, 32 Pa.Commonwealth Ct. 261, 378 A.2d 1054 (1977). As we said, “[The landowner] needed a variance to use the lots acquired after the enactment of the zoning ordinance for parking because her nonconforming use ... did not entitle her to extend that use over land not occupied when the ordinance became effective.” Id. at 265, 378 A.2d at 1056. It is thus [432]*432required that SGH prove its entitlement to a variance to use the after acquired lots for parking.

Section 910.2 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2 (Supp.1992-93), provides in pertinent part:

The board may grant a variance, provided that all of the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions ... peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable a reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.

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Smith v. Zoning Hearing Board
619 A.2d 399 (Commonwealth Court of Pennsylvania, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
619 A.2d 399, 152 Pa. Commw. 427, 1992 Pa. Commw. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-zoning-hearing-board-pacommwct-1992.