Judges Opinions Public Notices, — October 16, 2019 12:11 — 0 Comments

Public Notices, October 16, 2019

Volume 57, No. 11

 

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

TRUST NOTICES

NAME CHANGE

FICTITIOUS NAME

 

TABLE OF CONTENTS

Riley and Eisenhauer v. Zoning Hearing Board of the City of Lebanon

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF BRYAN E. RITTLE, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Pamela J. Rittle, Administratrix

 

Mark W. Allshouse, Esquire

CHRISTIAN LAWYER SOLUTIONS, LLC

4833 Spring Road

Shermans Dale, PA 17090

 

ESTATE OF BERNICE C. BRANDT, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard C. Clay

17 Katy Lane

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF MICHAEL EZELL, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Jack Ezell, Administrator

1908 Carlton Drive

Lebanon, PA 17042

 

Johnna J. Kopecky, Esquire

120 South Street

Harrisburg, PA 17101

 

ESTATE OF LUCILLE A. RUSSO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Joel A. Russo, Executor

 

Hazen Law Group

2000 Linglestown Road

Suite 202

Harrisburg, PA 17110

 

ESTATE OF ALETHEA B. SHURSKIS a/k/a ALETHEA SHURSKIS, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathrine E. Mihalko, Executrix

206 Philips Drive

Myerstown, PA 17067

 

Edward J. Coyle

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF PAUL W. HIBSHMAN, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jill H. Rogers, Executrix

401 Carlisle Avenue

Prospect Park, PA 19076

 

John D. Enck, Esquire

Spitler, Kilgore, & Enck, P.C.

522 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF E. PAUL WEAVER, III a/k/a ELMER PAUL WEAVER, III, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Miriam I. Weaver, Executrix

 

  1. Elvin Kraybill, Esquire

Gibbel, Kraybill & Hess, LLP

P.O. Box 5349

Lancaster, PA 17606

 

SECOND PUBLICATION

 

ESTATE OF ROBERT D. GIUNTA, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

James Cherry, Executor

107 South Eight Street

North Wales, PA 19545

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O Box 49

525 South Eight Street

Lebanon, PA 17042

 

ESTATE OF DAVID H. MILLER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cindy Royer, Executrix

506 Marion Street

Lititz, PA 17543

 

Edward J. Coyle, Esquire

Buzgon Davis Law Firm

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17072

 

ESTATE OF CAROL F. ARTZ, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daryl L. Artz, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ROY R. ROOT, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Edward P. Root, Jr., Executor

15 Circle Drive

Fredericksburg, PA 17026

 

Edward J. Coyle, Esquire

Buzgon Davis Law Firm

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17072

 

ESTATE OF HERMAN E. CARPENTER, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Administrators.

 

Fern Marley, Co-Administrator

 

Bonnie Swanger, Co-Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF CRAIG D. SCHULZE, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

Chad A. Schulze, Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF RUTH M. COLDSMITH, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Personal Representatives.

 

Melanie S. Bellissimo, Personal Representative

 

Laurie J. Schwing, Personal Representative

Alexandra M. Sipe, Esquire

Maxwell Sipe Law Offices, LLC

20 East Sixth Street, Suite 301

Waynesboro, PA 17268

 

ESTATE OF CONNIE M. BUCKS, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Lee A. Bucks, Executor

1005 Challenge Drive

Lebanon, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF WILLIAM E. CUPELLI, late of City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jordan E. Cupelli-Knight, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF DONALD PATRICK KERWICK, a/k/a DONALD P. KERWICK, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jan B. Yupcavage, Executrix

951 Carriage House Court

Hershey, PA 17033

 

Paul J. Datte, Esquire

Cerullo, Datte & Burke, P.C.

450 West Market Street

P.O. Box 450

Pottsville, PA 17901

 

THIRD PUBLICATION

 

ESTATE OF VIRGINIA A. WYRICK, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Yvonne S. Johnson, Executrix

918 Sycamore Lane

Lebanon, Pa 17046

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

PO Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF TERRENCE L. SMITH, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executor.

 

Scott M. Smith, Executor

 

Estate of Terrence L. Smith

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ESTHER E. YENSER, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Betty E. Walmer, Co-Executrix

8 Maple Avenue

Manheim, PA 17545

Eugene O. Yenser, Co-Executor

265 Greble Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF PATRICIA A. PAINTER, a/k/a PATRICIA ANN PAINTER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executrix.

 

Karen L. Painter, Executrix

 

Patrick M. Reb, Esquire

547 S. 10th Street

Lebanon, PA 17042

 

 

TRUST NOTICES

 

NOTICE IS HEREBY GIVEN THAT the Carlton E. McKinley Living Trust dated February 2, 1995, (the “Trust”), is being administered because of the death of Carlton E. McKinley, late of South Londonderry Township, Lebanon, Pennsylvania, who died on July 24, 2019. All persons having claims against the Decedent or Trust are requested to present them for settlement, and all persons indebted to the Decedent or Trust are requested to make immediate payment without delay to:

 

Ronald E. McKinley, Trustee

Edward P. Seeber, Esquire

JSDC Law Offices

Suite C-400

555 Gettysburg Pike

Mechanicsburg, PA 17055

 

NOTICE OF THE DEATH OF Arthur L. Herring, late of North Annville Township, Lebanon County, Pennsylvania, Settlor of The Arthur L. Herring Revocable Living Trust, dated 3/17/1999 and amended 7/9/2010, is hereby given. All persons indebted to said Trust are requested to make prompt payment and those having claims to present the same, without delay to:

 

Brenda Kay Herring, Trustee

 

David A. Peckman, Esquire

Peckman Chait LLP

29 Mainland Road

Harleysville, PA 19438

 

NAME CHANGE

 

NOTICE IS HEREBY GIVEN, that a Petition has been filed in the Court of Common Pleas of Lebanon County, Pennsylvania seeking to change the name of Thomas Consavo to Thomas Richard James. A hearing on the Petition will be held on November 8, 2019 at 9:30 a.m. at the Lebanon County Courthouse in courtroom No. 3, at which time any persons interested may attend and show cause, if any, why the Petition should not be granted.

 

Pamela Fleck, Esquire

213-A North Front Street

Harrisburg, PA 17101

(717) 2323-0581, Ext. 2105

 

 

FICTICIOUS NAME

 

NOTICE IS HEREBY GIVEN of the filing in the office of the Department of State of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, an application for the conduct of business in Pennsylvania under the assumed or fictitious name, style or designation of name: 1910 Leak Tree Associates with it’s principal place of business at: 440 Palm City Park, Annville, PA 17003. The name and address of all persons or entities owning or interested in said business are: Jeffrey A Davis, 440 Palm City Park, Annville, PA 17003. The application has been filed on 10/10/2019.

 

Edward T. Riley and Matthew J. Eisenhauer, v. Zoning Hearing Board of the City of Lebanon

 

Civil Action-Property Law-Zoning-Variance-Conversion Apartment-

 

Appellants are the owners of property located in an Office and Institutional zoned district. A buyer’s notification certificate issued when Appellants purchased the property in 1997 indicated that the first floor was designated a dental office and the second floor was designated a single family dwelling. When the dental practice moved out of that location because the office was too small to support the practice and Appellants were unable to locate a commercial tenant for the first floor space, they converted the first floor space into a residential apartment without altering the structure of the building itself. When Appellants were in the process of selling the property years later in 2018, a title search revealed that the first floor space was zoned for use as a dental office. Appellants have filed an appeal from the denial of an application seeking a variance to permit residential use of the first floor space by the Zoning Hearing Board of the City of Lebanon (“Zoning Hearing Board”).

 

  1. When the court does not conduct a hearing or receive evidence that was not before the zoning hearing board, the applicable standard of review is whether the board committed an error of law or an abuse of discretion.

 

  1. An abuse of discretion is found if the findings of the zoning hearing board are not supported by substantial evidence, which is evidence that a reasonable mind might accept as adequate to support a conclusion.

 

  1. Under the zoning ordinance in question, while two (2) family dwellings and multifamily apartment houses are permitted uses, conversion apartment dwellings are not a permitted use.

 

  1. The zoning ordinance permits a variance, which the ordinance defines as an authorized departure to a minor degree in direct regard to a hardship peculiar to an individual lot.

 

  1. One seeking a variance must establish that the zoning ordinance imposes an unnecessary hardship resulting from the unique physical conditions of the property, a variance is necessary to enable reasonable use of the property, the asserted hardship was not self inflicted, a grant of the variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties or be detrimental to the public welfare and the requested variance represents a minimal variance and the least possible modification of the regulation that will afford relief.

 

  1. The burden upon an applicant seeking an ordinance is a heavy one, and a variance should be granted sparingly and only under exceptional circumstances.

 

  1. A purchaser’s knowledge of zoning restrictions is insufficient to preclude the grant of a variance unless the purchase itself gives rise to the hardship.

 

  1. Since the purchase of the real property did not give rise to the hardship, the notification of the permitted use of the property pursuant to the buyer’s notification certificate does not preclude the grant of a variance such that the Zoning Hearing Board’s denial of the variance on that basis alone was an abuse of discretion.

 

  1. In light of the fact that a permit to change the first floor space into a conversion apartment would not have been issued because conversion apartments are not allowed per the zoned area where the property is located, it was an error of law for the Zoning Hearing Board to deny the request for variance on the basis that Appellants did not seek or obtain permits to convert the first floor space into an apartment.

 

  1. The Zoning Hearing Board abused its discretion by not issuing a variance where the property exhibits unique physical conditions in that it is located among apartment buildings, no professional practices exist in the area and the record indicates that the space is insufficient to accommodate a dental practice, the variance is necessary to enable reasonable use of the property, the asserted hardship is not self-inflicted and started when the dental practice moved to a larger space, the grant of the variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent property since the first floor property has been used as an apartment since the late 1990s and the requested variance represents the least possible modification that will afford relief, as Appellants did not change the structure of the property in converting it to a first floor apartment.

 

L.C.C.C.P. No. 2018-00818, Opinion by Charles T. Jones, Jr., Judge, February 6, 2019.

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

EDWARD T. RILEY and

MATTHEW J. EISENHAUER,                   :

Appellants,                                                 :

:

  1. :         Docket No.: 2018-00818

:

ZONING HEARING BOARD                     :         LAND USE APPEAL

OF THE CITY OF LEBANON,                   :

Appellee.                                                    :

 

ORDER OF COURT

 

AND NOW, to wit, this 6th day of February, 2019, after careful consideration of the record; Briefs by the parties; and the Oral Arguments of Counsel for the parties; the Court hereby GRANTS Appellants’ Land Use Appeal. The decision of the Zoning Hearing Board of the City of Lebanon dated April 10, 2018 which denied a variance request at Appellants’ real property located at 128 South Eighth Street, City of Lebanon, County of Lebanon, Pennsylvania was an abuse of discretion and not supported by substantial evidence. Thus, Appellants variance request to utilize the bottom floor of the real property as a conversion apartment is hereby GRANTED.

BY THE COURT:

 

____________________________, J.

CHARLES T. JONES, JR.

 

 

cc:     Andrew J. Race, Esquire

Keith L. Kilgore, Esquire

Cynthia V. Lose-Morgan, Esq. (Law Clerk)

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

EDWARD T. RILEY and

MATTHEW J. EISENHAUER,                   :

Appellants,                                                 :

:

  1. :         Docket No.: 2018-00818

:

ZONING HEARING BOARD                     :         LAND USE APPEAL

OF THE CITY OF LEBANON,                   :

Appellee.                                                    :

 

APPEARANCES:

 

Andrew J. Race, Esquire                                              For Appellants

 

Keith L. Kilgore, Esquire                                             For Appellee

 

 

OPINION BY JONES, JR., J.:

Before the Court is Appellants’ Land Use Appeal of the decision of the Zoning Hearing Board of the City of Lebanon dated April 10, 2018 as it relates to a variance request for their real property located at 128 South Eighth Street, City of Lebanon, County of Lebanon, Pennsylvania.

 

  1. FACTUAL AND PROCEDURAL HISTORY

Appellants Edward T. Riley and Matthew J. Eisenhauer are the owners of real estate situate at 128 S. Eighth Street, Lebanon, PA 17042 which is improved with a building currently being used as a first and second floor apartment located in the Office and Institutional (OI) Zoning District (herein “Real Property”). (Transcript of Proceedings on March 21, 2018 hereinafter “N.T.” 3 and 5). Per a Buyer’s Notification Certificate that was claimed to be issued to Appellants when they bought the Real Property in 1997, the first floor use was designated as a dental office and the 2nd floor was designated as a single-family dwelling. (N.T. 8-9 and Exhibit 6). Matthew J. Eisenhauer testified that he and Edward T. Riley bought the property from his Mother’s estate in 1997. (N.T. 6). Appellant Eisenhauer’s Father was a dentist and ran his practice out of the first floor of the Real Property, but sold his dental practice to Dr. Thomas Thompson, a fellow dentist, in 1985. (N.T. 6). Dr. Thompson informed Appellants around 1996/1997 that he was ending the rental contract for the 1st floor which was being used as, and designated as, a dental office. (N.T. 6). Appellant Eisenhauer testified that the dentist moved his practice to Cornwall Road because, “he wanted something that was more convenient to his patients, and then also the office on Eighth Street was too small to support his practice.” (N.T. 7).

Appellant Eisenhauer testified at the zoning hearing that after he and Appellant Riley bought the real property and Dr. Thompson ended his rental contract in 1997 both Appellants attempted to rent out the 1st floor to any professional, as opposed to only dentists. Appellant Eisenhauer stated,

We put advertisements on – right. We didn’t specifically target dentists. We were just, wanted to put an office in there because we realized that would make the same amount of money and have less wear and tear on the building, the property. So we weren’t successful. We did it for about three or four months.

(N.T. 8).

 

Appellants did not get any “bites” when advertising the 1st floor as a professional office. (N.T. 8). After three or four months of attempting to rent the 1st floor out as a professional office the Appellants considered that they were losing approximately $350 to $375 a month and decided to convert the approximate 800 sq. ft. 1st floor into an apartment. (N.T. 9). Appellants argue they did not change any of the structure, just added cabinets, a shower stall, and a vanity. (N.T. 9). Appellant Eisenhauer previously testified the 1st floor 800 square foot space already contained a powder room. (N.T. 7). Appellant Eisenhauer testified that he was unaware that when Appellants created the “conversion apartment,” it was not permitted under the city zoning ordinance. (N.T. 9-10).

Beginning around 2012, the City instituted a rental unit licensing program. Appellants took out two licensing permits for the Real Property every year since the program began. (N.T. 10). Appellant Eisenhauer testified that he was not trying to hide anything because he did not even know they were violating any zoning laws. (N.T. 9). The zoning violation concern did not arise until 2018 when Appellants were in the process of selling the Real Property and a title search revealed that the 1st floor was zoned for use as a dental office. (N.T. 10-11).

Appellants then filed a variance application and a hearing was held on said application on March 21, 2018. At the hearing Appellant Eisenhauer described the surrounding buildings which include the Lebanon area Post-Office, a six-unit apartment across the street, the pregnancy center next door on one side, a multi-apartment dwelling on the other side, Sharky’s Restaurant two buildings down, and another apartment building to the North of the Real Property. (N.T. 5-6). Further, uncontradicted testimony supported the assertion that the 1st floor at the Real Property was not large enough to accommodate the size of the previous tenant’s dental office, let alone a modern day dental office. (N.T. 11). Next, Appellant Eisenhauer testified that although there used to be other professional practices in the area, there are not any right now; “All the ones that had been there are gone.” (N.T. 11).

At the hearing, Solicitor Keith Kilgore proposed the following question to the audience: “Any member of the audience have anything they want to say to us about this particular application?” (N.T. 13). There was no response to this question. (N.T. 13). A brief executive session was held thereafter. (N.T. 14). After the executive session the Solicitor called on the board members to make a motion on the variance request. (N.T. 15). Board Member Mr. Edwin Salem stated, “I make a motion, and the motion is that we turn them down under the thing about the B and C [sic] (Buyer Notification Certificate) and the repairs or changes without permits.” (N.T. 15). The board then voted 4-1 to deny the variance. (N.T. 15).

Appellants filed their Appeal with the Court of Common Pleas on May 9, 2018. On June 5, 2018, Attorney Keith Kilgore, on behalf of the Lebanon City ZHB, filed a Praecipe for Disposition upon filing the record with the Prothonotary. The case was listed for August Argument Court. Upon Motion by the Lebanon City ZHB the case was continued to the September Argument Court. The case is now ripe for disposition.

 

  1. STANDARD OF REVIEW

When the Court of Common Pleas does not conduct a hearing or receive evidence not before the zoning hearing board, the applicable standard of review is whether the board committed an error of law or whether it committed an abuse of discretion. Hertzberg v. Zoning Bd. Of Adjustment of City of Pittsburgh, 721 A.2d 43, 46 (Pa. 1998). An abuse of discretion is found where the zoning board’s findings are not supported by substantial evidence. Id. Substantial evidence is such evidence that a reasonable mind might accept as adequate to support a conclusion. Id.

 

 

 

 

 

 

  • DISCUSSION

Jurisdiction and Venue

Any person or persons… aggrieved by any decision of the Zoning Hearing Board may, within thirty (30) days of the decision by the Zoning Hearing Board, seek review of such decision by a Court of Record, in the manner provided by the law of the Commonwealth and particularly by Article 10 of the Pennsylvania Municipalities Planning Code.

Lebanon City Zoning Code § 1303.19(c)(2).

 

The Court finds that Appellants filed their Notice of Appeal of the City of Lebanon’s Zoning Hearing Board’s April 10, 2018 decision to the Court of Common Pleas of Lebanon County, Pennsylvania on May 9, 2018. The Court finds it has jurisdiction and venue on appeal as the court of common pleas of the judicial district wherein the land is located and the appeal was filed within thirty days of the Zoning Hearing Board’s decision. 53 P.S.C.A. §11002-A.

 

Lebanon City Code of Ordinances Part Thirteen and Variance Requests, Generally

The purpose of The Zoning Ordinance of the City of Lebanon, Pennsylvania is the promotion of the public health, safety, morals, and/or general welfare by: (a) encouraging the most appropriate use of land; (b) preventing overcrowding of land; (c) conserving the value of land and buildings; (d) lessening the congestion of traffic on the roads; (e) avoiding undue congestion of population; (f) providing for adequate light and air; (g) securing safety from fire, flood, and other dangers; (h) facilitating the adequate provision for transportation, water supply, sewage disposal, drainage, schools, parks, and other public facilities; (i) giving reasonable consideration, among other things, to the character of districts and their peculiar suitability for particular uses; and (j) giving effect to the policies and proposals of the Comprehensive Plan as approved by the Planning Commission and adopted by Council.

Lebanon City Zoning Code § 1301.02.

 

While two-family dwellings (duplex) and multifamily apartment houses are permitted uses in the Office Institutional district, conversion apartment dwellings are not a permitted use. Lebanon City Zoning Code § 1321.07(a)(2), (5), and (6). A conversion apartment dwelling means an increase in the number of dwelling units in an existing single-family dwelling. Lebanon City Zoning Code § 1303.19(c)(2). There is no dispute of facts that the 1st floor of the Real Property was converted into an apartment sometime in 1997 or 1998 in violation of the Office Institutional Zoning District’s permitted uses. (N.T. 9). Lebanon City’s zoning ordinance however does permit variances, or an authorized departure to a minor degree in direct regard to a hardship peculiar to an individual lot, in accordance with the procedures set forth in the zoning code. Lebanon City Zoning Code § 1303.71; Lebanon City Zoning Code § 1307.08. The question becomes whether Appellants were entitled to a variance upon application in February of 2018 in accordance with Lebanon City’s zoning code, and the Lebanon City ZHB therefore abused its discretion or committed an error of law when it denied the same by decision on April 10, 2018.

“The Zoning Hearing Board shall authorize upon appeal in specific cases such variance from the terms of this Zoning Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Code would result in unnecessary hardship.” Lebanon City Zoning Code § 1307.08. One seeking a variance must establish that the zoning ordinance imposes unnecessary hardship resulting from 1) unique physical conditions of the property; 2) a variance is necessary to enable a reasonable use of the property; 3) the asserted hardship was not self-inflicted; 4) a grant of variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties, or be detrimental to the public welfare; and 5) the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief. 53 P.S.C.A. §10910.2(a); Lebanon City Zoning Code § 1307.08. The reasons for granting a variance must be substantial, serious, and compelling. Oxford Corp. v. Zoning Hearing Bd. Of Borough of Oxford, 34 A.3d 286, 296 (Pa. Cmwlth. 2011). (citations omitted). The applicant’s burden is a heavy one, and a variance should be granted sparingly and only under exceptional circumstances. Teazers, Inc. v. Zoning Bd. of Adjustment of Phila., 682 A.2d 857 (Pa. Cmwlth. 1996).

 

Motion and Decision to Deny Variance Request

First, the Court looks at the transcript from the Zoning Board Hearing on March 21, 2018. In that transcript, Solicitor Kilgore asks if any member of the Board is prepared to make a motion on the request. (N.T. 15). Board Member Edwin Salem then stated, “I make a motion, and the motion is that we turn them down under the thing about the [Buyer Notification Certificate] and the repairs or changes without permits.” (N.T. 15). The motion to deny the variance was seconded, and the motion carried by a vote of 4-1. (N.T. 15). The Court examines both statements that underpin the Board Member’s motion and subsequent decision.

Lebanon City’s Zoning Code requires a seller to deliver to a buyer, prior to the execution of the agreement of sale for such property, a Buyer Notification Certificate or “BNC.” The purpose of the BNC is “to prevent undue hardship and losses imposed on such purchase by owners who have failed to reveal the legal use…” Lebanon City Zoning Code § 1717.01. The Buyer Notification Certificate for the Real Property lists the current use of the property as “Dentist Office” and “Single-Family Dwelling” as of May 22, 1997. (N.T. Exhibit 6). Appellant Eisenhauer testified that he did not recall ever seeing the Buyer Notification Certificate when he purchased the Real Property. (N.T. 9). In support of his assertion that he was not aware of the zoning restrictions Appellant Eisenhauer pointed to the fact that since the inception of Lebanon City’s rental unit licensing program he has faithfully submitted an application and $80.00 fee ($40.00 per rental unit) in exchange for rental certificates for the 1st and 2nd floor rentals which comprise the Real Property. (N.T. 10 and Exhibit 8). A purchaser’s knowledge of zoning restrictions is insufficient to preclude the grant of a variance unless the purchase itself gives rise to the hardship. Neilson et al v. Zoning Hearing Bd. Of Municipality of Mt. Lebanon, 786 A.2d 1049 (Pa. Cmwlth. 2001)(Appellee landowner acquired property from his parents and neighbors and although he had knowledge of the zoning restrictions such was insufficient to preclude the grant of variance as it related to the third requirement that one seeking a variance not create the hardship where landowner sought to build single-family dwelling on unimproved parcel that did not front a public street). The Court finds that although Appellant Eisenhauer may have had record notice of the zoned, legal use of the property, such is insufficient to preclude the grant of a variance as the purchase of the real property did not give rise to the hardship.[1] The Court finds that to deny Appellants’ variance request on this basis alone (or in conjunction with the zoning permit discussion below) was an abuse of discretion.

The Court also considers the later reasoning contained in the Board Member’s Motion to deny the variance. The Board Member stated, “the repairs or changes without permits.” (N.T. 15).

Zoning permits shall hereafter be secured from the Zoning Officer prior to the use of any land, construction, erection, or alteration of any building or part of building, and prior to the construction or erection of any stationary sign or billboard. All requests for zoning permits shall be made in writing by the owner or by his authorized agent on forms supplied by the Zoning Officer, and when requested by the Zoning Officer, shall be accompanied by a certified plan drawn to scale, by the Zoning Officer, shall be accompanied by a certified plan drawn to scale, showing the proposed structure in its exact relation to lot and street lines. No zoning permit shall be issued for any conversion, addition or alteration or change in use of any existing structure unless that structure meets all requirements of applicable City codes and ordinances, including all ordinances relating to shade trees.

Lebanon City Zoning Code § 1305.02(a).

“Alteration of building” means any change in supporting members or in exit facilities of a building except such change as may be required for its safety; any enlargement to a building; any change in use from one zone classification to another; or removal of a building from one location to another.

Lebanon City Zoning Code § 1303.03.

Upon review of the changes made to the property to render it suitable for use as a conversion apartment, the Court finds that a zoning permit would be necessary if the changes made constitute “alteration of the building” pursuant to Lebanon City Zoning Code Section 1303.03 and such use permitted in the zoned district.[2] When considering Section 1303.03 of the zoning code the question then becomes did Appellants’ alterations to the Real Property “change the use from one zone classification to another.”[3]

Appellant Eisenhauer testified that Appellants added cabinets, a shower stall, and a vanity to the 1st floor of the Real Property. (N.T. 9). At Oral Argument the Court inquired with both Counsel whether such changes, if made in an attempt to keep an existing lease with a dentist who liked to bike to work and shower before seeing patients, and perhaps utilized cabinetry as means of maintaining patient files, would have constituted “alteration of the building?” Neither Counsel was able to give a definitive response to the hypothetical. The Court finds that if Dr. Thompson (the last dentist to lease the Real Property) would have requested the changes made, and the Appellants had complied in order to maintain the long-standing relationship (and lease) with Mr. Thompson, such changes would not have “changed the use from one zone classification to another.” The Court does note that such was not the case instantly, but rather, the changes were made in an attempt to rent the 1st floor out as an apartment after failing to find any professional tenants through advertisement over a four-month period. (N.T. 8-9). We consider whether the purpose of such alterations effects the outcome.

Assuming, arguendo, this Court agrees that the outcome is different and the changes made by Appellants “changed the use from one zone classification to another” the next step is to determine whether the Zoning Board abused its discretion for denying Appellants’ variance request because “the repairs or changes without permits.” (N.T. 15). As mentioned, conversion apartments are not a permitted use in the Office Institutional District. Lebanon City Zoning Code § 1321.07(a)(6). In fact, conversion apartments are not a permitted use in any of Lebanon City’s zoned districts. Id. Conversion apartments are a conditional use in the Auto-Oriented Commercial, Central Business, and Light Manufacturing[4] districts. Id. The conditional use as a conversion apartment may be permitted in specified zones if it can be demonstrated, to the satisfaction of the Zoning Officer, that the proposed use meets the standards set forth in Section 1321.09(b)(2). Lebanon City Zoning Code § 1321.09(a),(b)(2). “[N]o zoning permit shall be issued for the indicated use[], within the specified zones, unless these standards are met.” Lebanon City Zoning Code § 1321.09(b).

“Zoning permit” means a permit stating that the purpose for which a building or land is to be used is in conformity with the uses permitted and all other requirements of this Zoning Ordinance for the zone in which it is located or to be located.

Lebanon City Zoning Code § 1303.78.

In consideration of the above, a zoning permit could not have been issued because a conversion apartment (hypothetical proposed stated purpose for which the Real Property would be used) would not have been in conformity with the uses permitted for the zone (Office Institutional) in which the Real Property is located. Thus, it is clear that even had the Appellants applied for a zoning permit to convert the 1st floor of the Real Property from a dental office to an apartment because adding the shower stall, vanity, and cabinets constituted a building alteration (change in zoned use) such could not be issued by a Lebanon City Zoning Officer. It is the conclusion of this Court that to deny Appellants’ variance request because they did not seek/obtain a zoning permit was an error of law by Appellee.

 

Court’s Review of Appellants’ Variance Request

“An applicant seeking a variance must prove that unnecessary hardship will result if the variance is denied and that the proposed use is not contrary to the public interest.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983). To be entitled to a variance, the applicant must establish that the zoning ordinance imposes unnecessary hardship resulting from 1) unique physical conditions of the property; 2) a variance is necessary to enable a reasonable use of the property; 3) the asserted hardship was not self-inflicted; 4) a grant of variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties, or be detrimental to the public welfare; and 5) the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief. 53 P.S.C.A. §10910.2(a); Lebanon City Zoning Code § 1307.08. “In assessing the evidence, it is the function of the zoning board to determine whether the evidence satisfies the criteria for granting a variance. Schadt v. City of Bethlehem Zoning Hrg. Bd., 119 A.3d 439, 442 (Pa. Cmmw. 2015). Instantly, Appellee never discussed or recorded in its decision why it believed that there were no unique physical conditions of the Real Property, why the variance was not necessary to enable a reasonable use of the Real Property, or why the hardship was self-inflicted. Petition of Edward T. Riley and Matthew J. Eisenhauer, Decision, Page 6. Upon review of the record the Court finds that Appellants do meet the requirements of a variance request, and to deny them their request because of the Buyer Notification Certificate was an abuse of discretion and not supported by substantial evidence.

First, the Real Property does exhibit unique physical conditions. The Real Property is on the opposite side of the street from the Commercial Business District, which allows conversion apartments as a conditional use. This has created a neighborhood full of multi-dwelling apartment buildings from other apartment conversions void of professional offices. This neighborhood includes the Real Property which unlike parts of the neighborhood is located in the Office Institutional Zoned District. The neighborhood was described as containing: the Post-Office, a six-unit apartment across the street, the pregnancy center next door on one side, a multi-apartment dwelling on the other side, Sharky’s Restaurant two buildings down, and another apartment building to the North of the Real Property. (N.T. 5-6). Next, Appellant Eisenhauer testified that although there used to be other professional practices in the area, there are not any right now, “All the ones that had been there are gone.” (N.T. 11).

Further, uncontradicted testimony supported the assertion that, as of 1997, the approximate eight-hundred square foot (800 sq ft) 1st floor at the Real Property was not large enough to accommodate the size of the previous tenant’s dental office, let alone a modern day office. (N.T. 9, 11). A Zoning Hearing Board is free to reject even uncontradicted testimony it finds lacking in credibility. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). Here, Lebanon City’s Zoning Hearing Board did not indicate that the testimony presented lacked credibility. Thus, the Court finds credible the testimony that the previous dentist left because the 1st floor of the Real Property was not large enough to accommodate a dental practice. This notion is supported by Appellants unsuccessful attempts to rent the 1st floor out for multiple months, to any professional, without success, and without even a single inquiry. (N.T. 8).

As required to establish unnecessary hardship for a use variance the Court finds that Appellants demonstrated that the property cannot be used for a permitted purpose as described on the Buyer Notification Certificate as the 1st floor does not contain enough square footage to house a modern dental practice, and professional offices are no longer found in the neighborhood. Singer v. Phila Zoning bd. of Adjustment, 29 A.3d 144, 151 (Pa. Cmwlth. 2011).

Second, a variance is necessary to enable a reasonable use of the property. For the reasons more fully described above in the discussion regarding Appellants failure to seek a zoning permit the Court finds that a variance is necessary to enable a reasonable use of the property. The Appellants are unable to acquire a zoning permit to have the 1st floor of the Real Property be recognized as a conversion apartment as such is not a permitted, special exception, nor specific condition use. The 1st floor of the Real Property has not had an office tenant since 1997 when after unsuccessfully advertising the 1st floor as a professional office (not limiting the same to a dental office) for multiple months Appellants added cabinetry, a shower stall, and vanity then began successfully renting the property as an apartment.

Allowing the 1st floor to remain an apartment would be a reasonable use as multi-family apartment dwellings are permissible in the Office Institutional District, and requiring the 1st floor to be utilized as a dental practice would make that portion of the property practically valueless as the property cannot accommodate a modern office because of its size. See Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 543 Pa. 415, Sup.1996, reargument denied. (In order to show that zoning variance is necessary for reasonable use of land, property owners would have to show that denial of requested variance would make property practically useless). The Court looks at the intent of the Office Institutional Zoning District.

The regulations of an Office Institutional District are designed primarily to facilitate office and institutional uses and to provide a transition zone between the central business district, the manufacturing districts, and the residential districts. In essence, this is a zone for a wide variety of uses, normally indigenous to urban areas, which are compatible among themselves, but do not necessarily fit into any other zoning districts.

Lebanon City Zoning Code § 1321.04(g).

The Office Institutional District is “a zone for a wide variety of uses,” and it is “to provide a transition zone between …. districts.” Id. The Real Property is the first property on the block of the Office Institutional zone adjacent to the last property on the adjoining block zoned as the Central Business District, separated only by Federal street. No more than fifteen feet (15’) and a zoning ordinance separate the Real Property from a specific conditional use as a conversion apartment, as opposed to being required to seek a variance. Since uncontradicted testimony indicated that small professional offices are no longer located within the neighborhood, and the intent of the Office Institutional zone is to accommodate the transition between districts and a wide variety of uses, the Court finds that the variance is necessary (and supported by the intent of the zoned district) to enable a reasonable use of the Real Property.

Third, the asserted hardship was not self-inflicted. The hardship began when due to changing necessity for office space led the last office tenant (Mr. Thompson the dentist) to terminate his lease and move his dental practice to a larger space. (N.T. 6-7). The hardship then continued when the Appellants were unsuccessful for several months in renting the 1st floor out as a professional office. (N.T. 8). The cessation of demand for small professional office space over the years has created a unique hardship for Appellants’ small 1st floor space in the Real Property. The aforementioned hardship has not been self-inflicted, but rather improperly remedied (at the time), by Appellants (creating conversion apartment without variance).

Fourth, a grant of variance will not alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties, or be detrimental to the public welfare. In fact, the variance requested by Appellants (use as a conversion apartment) has been in existence since 1997/1998, roughly twenty-one/twenty-two years. It is proper to view the use of adjacent and surrounding land. Nowicki v. Zoning Hearing Bd. Of Borough of Monaca, 91 A.3d 287, 292 (Pa. Cmwlth. 2014). The neighborhood contains several other multi-family apartment dwellings. (N.T. 5-6). Multi-family apartment dwellings are even permitted in the zoned district. Lebanon City Zoning Code § 1321.07(a)(5). (Dwellings converted into such use, or conversion apartments, are not permitted). Appellee acknowledged at the hearing in 2018 that although Appellants had been receiving rental licenses for the 1st floor since 2012, it was not even aware the property had been converted into an apartment until Appellants tried to sell the property in 2018. There is nothing to indicate that granting the variance would alter the essential character of the neighborhood, substantially impair appropriate use or development of adjacent properties, or be a detriment to the public welfare when such as not been shown to have occurred over the past twenty-one/twenty-two years with the Real Property being used in a manner consistent with the variance request.

Fifth, the requested variance represents a minimum variance and a least possible modification of the regulation that will afford relief. Appellants merely added a shower stall, vanity, and cabinetry to allow the 1st floor to be used as an apartment which represents what would change if the variance were to be granted. The 2nd floor of the Real Property would and remains unchanged, an apartment. The Real Property will be one of many other multi-family apartment dwellings in the Office Institutional district.

Finally, the Court also considers that “The Zoning Hearing Board shall authorize upon appeal in specific cases such variance from the terms of this Zoning Code as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Code would result in unnecessary hardship.” Lebanon City Zoning Code § 1307.08. Thus, the Court upon review of the record finds that Appellants established unnecessary hardship, met the requirements for a variance, and it was an abuse of discretion by Appellee to deny the variance “under the thing about the [Buyer’s Notification Certificate] and the repairs or changes without permits.”

 

  1. CONCLUSION

For the foregoing reasons the Court will grant Appellants’ Land Use Appeal. The decision of the Zoning Hearing Board of the City of Lebanon dated April 10, 2018 which denied a variance request at Appellants’ real property located at 128 South Eighth Street, City of Lebanon, County of Lebanon, Pennsylvania was an abuse of discretion and not supported by substantial evidence. Thus, Appellants variance request to utilize the bottom floor of the real property as a conversion apartment will be granted. A concomitant Order will be entered consistent with the foregoing.

 

 

 

 

[1] The Court notes that Exhibit 6, the Buyer Notification Certificate, under the section titled, “MAIL CERTIFICATE TO:” states, “Will pick up 5/22/97.” There is nothing supporting the assertion this document was “picked up on May 22, 1997” or alternatively mailed to the contact person at Henry & Beaver (the firm handling settlement) or to the seller/buyer. At the hearing Appellant Eisenhauer testified that he did not remember ever receiving or seeing the Buyer Notification Certificate when he purchased the Real Property. (N.T. 8-9).

[2] Other portions of Section 1305.02(a) are not applicable based on the factual scenario presented, and thus not considered.

[3] Other portions of Section 1303.03 are not applicable based on the factual scenario presented, and thus not considered.

[4] Though conversion apartments are a conditional use in the light manufacturing district such use is not permitted in the Partridge Street Redevelopment Area. Lebanon City Zoning Code § 1321.07(a)(6), Footnote 1.

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