University of Scranton v. City of Scranton Zoning Hearing Board

32 Pa. D. & C.5th 74, 2013 Pa. Dist. & Cnty. Dec. LEXIS 404
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedAugust 9, 2013
DocketNo. 13 CV 360
StatusPublished

This text of 32 Pa. D. & C.5th 74 (University of Scranton v. City of Scranton Zoning Hearing Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
University of Scranton v. City of Scranton Zoning Hearing Board, 32 Pa. D. & C.5th 74, 2013 Pa. Dist. & Cnty. Dec. LEXIS 404 (Pa. Super. Ct. 2013).

Opinion

NEALON, J.,

A local university filed an application with the Zoning Hearing Board of the City of Scranton (“ZHB”) seeking a dimensional variance for three sight distance triangle requirements in order to raze an existing nonconforming structure and replace it with a new building in the same dimensional footprint as the present, nonconforming structure. After the ZHB denied that dimensional variance request on the sole ground that the proposed new building will make use of the adjacent intersection “less safe” for motorists and pedestrians, the university filed this zoning appeal on the basis that the ZHB’s traffic safety finding was not supported by substantial evidence in the record.

Under Pennsylvania decisional precedent, a zoning board may deny a variance due to traffic congestion and safety concerns, provided that the finding of adverse traffic effects is supported by expert testimony, accident reports or traffic count studies. The only expert evidence presented during the zoning hearing in this case indicated that the [76]*76existing sight distance nonconformity will “slightly” improve with the new building, that the police accident reports reflect no accidents at the subject intersection within the past five years, and that vehicular and pedestrian traffic will continue to travel safely through the intersection after the construction of the new building. No person testified in opposition to the university’s variance request, nor was any competent evidence of adverse traffic effects introduced during the hearing.

A zoning board’s decision is subject to reversal if the board abuses its discretion, and a zoning board commits an abuse of discretion if its findings are not supported by substantial evidence. Since the ZHB did not base its traffic safety finding upon the minimum proof of adverse traffic effects as required by appellate case law, it committed an abuse of discretion in denying the university’s application for a dimensional variance. Furthermore, the zoning ordinance states that reconstruction or expansion of a preexisting, nonconforming structure “shall” be permitted if such action will not increase the existing nonconformity or violate any setback requirements, and it is undisputed that the proposed construction will not increase the present nonconformity or contravene any setback restrictions. Accordingly, the ZHB’s decision denying the university’s request for three sight distance triangle variances will be reversed.

I. FACTUAL BACKGROUND

On May 2, 1977, the University of Scranton (“the University”) purchased the former YWCA building which [77]*77is located at the intersection of Linden Street and Jefferson Avenue in Scranton. (Docket entry no. 3, exhibit A at p. 7). The four story building, which is currently known as Leahy Hall (“Leahy Hall”), was originally constructed in 1907. (Scranton City Zoning Hearing Transcript (“ZHT”) on 6/12/13 at pp. 4, 8; docket entry no. 3 at p.4). Leahy Hall is located in a “Downtown Commercial District” (“C-D Zone”) for which there are no setback requirements under the Scranton zoning ordinance.1 (ZHT 6/12/13 at pp. 25-26).

The University’s physical therapy, occupational therapy and exercise science departments are located in Leahy Hall which is situated adjacent to McGurrin Hall, 219 Jefferson Avenue, which houses the University’s Panuska College of Professional Studies. (Id. at pp. 7-8). “Expanded facilities” are “desperately needed” for the University’s “physical therapy, occupational therapy and exercise science departments which have a strong existing relationship with the nursing programs and the Leahy Free Clinic which are located in McGurrin” Hall. (Id. at p. 8). Among those growing programs are therapy and exercise services that are provided by the University on a “pro bono” basis for children “who are severely and physically handicapped,” have “autism” or “Down Syndrome,” or are “clients of the Northeast Intermediate Unit.” (Id. at pp. 11-13).

[78]*78The University explored the prospect of adding four additional floors to the existing Leahy Hall structure, but “after comprehensive studies by several architects over the past three to four years, it has been determined that the [Leahy Hall] building construction does not meet code” since “the floors do not align” and Leahy Hall’s “existing wood structure simply isn’t going to hold another four floors.” (Id. at pp. 8-9). Additionally, the University investigated the possibility of adding the additional floors to McGurrin Hall, but two separate architectural firms concluded that McGurrin Hall’s foundation and columns will not support an eight story structure. (Id. at p. 19). Consequently, the University developed plans to raze the current Leahy Hall facility and to construct a new eight story building in the same dimensional footprint as the existing structure. (Id. at pp. 8, 13-15). The projected construction of the new Rehabilitation Center Building will cost $47,500,000.00 and will generate up to $900,000.00 in permit fees for the City of Scranton. (Transcript of proceedings (“T.P.”) on 8/5/13 at p. 18).

Section 803 .C of the Scranton Zoning Ordinance prescribes sight distance requirements for buildings that are situated at intersections within the City of Scranton. As per Section 803.C.1 of the ordinance, the purpose of the sight distance restrictions is “[t]o ensure that traffic passing through an intersection or turning onto a street can safely see oncoming traffic.” (Scranton, Pa., Zoning Ordinance art. VIII, §803.C.l at p. 8-4 (1993)). Section 803.C.5 sets forth the minimum “sight distance triangle” requirements for intersections, and both the existing Leahy [79]*79Hall structure and the proposed Rehabilitation Center Building do not satisfy those requirements in the zoning ordinance. (ZHB 6/12/13 atp. 14).

However, Section 806.C of the zoning ordinance addresses “Nonconforming Structures” which were designed and constructed before the adoption of the 1993 zoning ordinance’s dimensional restrictions, including its sight distance triangle requirements. Section 806.C.l(a) states that “[t]he Zoning Officer shall permit a nonconforming structure to be reconstructed or expanded” so long as “such action will not increase the severity or amount of the nonconformity...or create any new nonconformity” and the proposed “expanded area will comply with the applicable setbacks in that District.” (Scranton, Pa., Zoning Ordinance art. VIII, §806.C.l(a) at pp. 8-7 to 8-8 (1993)). It is uncontested that the proffered construction of the University’s Rehabilitation Center Building will not increase the existing sight distance nonconformity of Leahy Hall and, in fact, will actually decrease the present nonconformity as a result of the proposed loading and unloading zone for special needs and pediatric patients, which is to be installed in a recessed area on the Jefferson Avenue side. (ZHT 6/12/13 at pp. 9-10, 13, 15). Moreover, since the building is located in a C-D District which does not have any setback requirements, (see n.l, supra), the intended construction “will comply with the applicable setbacks in that District.” Thus, the criteria for the grant of a permit for the expansion of a nonconforming structure (Leahy Hall) have been satisfied.

Although the language of Section 806.C.l(a) indicates [80]

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32 Pa. D. & C.5th 74, 2013 Pa. Dist. & Cnty. Dec. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-of-scranton-v-city-of-scranton-zoning-hearing-board-pactcompllackaw-2013.