Simon Bohr vs. City of Lebanon Zoning Hearing Board No. 2016-00997

Civil Action-Administrative Law-Zoning-Property Use–Variance-Commercial Neighborhood District-Auto Restoration Business-Conditional Approval

Simon Bohr filed an appeal from the decision of the City of Lebanon Zoning Hearing Board that conditionally granted Bohr’s Petitions for Variance that in part sought to change the use of his property located in a Commercial Neighborhood district from a warehouse to an auto restoration business. Bohr asserted on appeal that the Board erred and abused its discretion by adding conditions to the approval of the requested variances that effectively preclude his tenant from operating an auto restoration building, including prohibiting any automotive repair on the property aside from the restoration of antique vehicles, requiring all vehicles in the parking area to be completely intact and prohibiting any storage of equipment and parts in trailers or containers.

1. The scope of review in a zoning appeal where the trial court takes no additional evidence is limited to whether the zoning hearing board committed an error of law or an abuse of discretion. A zoning hearing board commits an abuse of discretion if its findings are not supported by substantial evidence. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion.

2. Generally, a party seeking a variance has the heavy burden of establishing: (1) unnecessary hardship will result if the variance is denied; (2) the hardship is unique or particular to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district; and (3) the proposed use will not be contrary to the public interest.

3. Even if the requirements for a variance have not been met, a de minimis variance may be granted where only a minor deviation from the zoning ordinance is sought and rigid compliance is not absolutely necessary to protect the public policy concerns inherent in the ordinance.

4. The purpose of the Municipalities Planning Code is to protect and to promote safety, health and morals, to accomplish coordinated development and to provide for the general welfare by guiding and protecting amenity, convenience, future governmental, economic, practical, social and cultural facilities, development and growth, as well as improvement of governmental processes and functions. 53 P.S. § 10105.

5. The Municipalities Planning Code indicates that in granting any variance, a zoning hearing board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the Code and the zoning ordinance. 53 P.S. § 10910.2(b).

6. Since the testimony and evidence presented by the citizens in the community concerned that the allowance of the variance would change the residential character of the community and would pose a safety hazard to children who frequently play in the neighborhood, the Zoning Hearing Board was within its discretion to impose conditions that would address such concerns and would not inhibit private use of the property.

L.C.C.C.P. No. 2016-00997, Opinion by Samuel A. Kline, Judge, November 7, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,

PENNSYLVANIA

CIVIL DIVISION No: 2016-00997

SIMON BOHR, Appellant

v.

CITY OF LEBANON ZONING HEARING BOARD, Appellee

ORDER

And now, to wit, this 7^th day of November, 2016, upon consideration of the Appellant’s Zoning Hearing Board Appeal, the parties’ briefs in support of their positions, oral argument, and the record of the case, it is hereby ordered that the decision of the Zoning Hearing Board is AFFIRMED. Appellant is notified he has thirty (30) days from the date of this Order to appeal this decision.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

George Christianson, Esq. for the Appellant

Keith L. Kilgore, Esq. for the Appellee

OPINION, KLINE, J., November 7, 2016

Before the Court is the Appellant’s (hereinafter “Bohr”) appeal of the decision of the City of Lebanon Zoning Hearing Board (hereinafter “Board”). For the reasons set forth herein, we affirm the decision of the Board, as specified below.

FACTS AND PROCEDURAL HISTORY

Bohr filed a Petition for Variance before the Board on March 21, 2016, in which he sought two variances for the property located at 631 Amelia St., Lebanon, PA 17046. The two variances are: to change the use of the property from a warehouse to an auto restoration business and to change the fence height in the front yard. The property is located in the Commercial Neighborhood zoning district.

The first hearing on the two variances was held on April 20, 2016. Testimony was given by many neighbors who are impacted by the use of the property and would be impacted by the variances. Additionally, testimony was given by Bohr and his tenant on the property, Stephen Harclerode who conducts the auto restoration. At the end of the hearing, the Board decided to continue the matter until the next hearing date, May 18, 2016, to allow Bohr to clean up the property. (April 20, 2016 N.T. 36-37).

At the second hearing, on May 18, 2016, the Board heard additional testimony from Bohr and the neighbors relating to the cleanup efforts of the property. Additionally, the Board heard testimony from Bohr and Harclerode about the antique auto-restoration business that is planned for the property, which in fact had already begun to operate. (May 18, 2016 N.T. 68-73). In the end, the Board granted both variances but attached conditions to the variances. The Board’s written decision was issued on June 7, 2016.

Thereafter, on June 29, 2016, Bohr filed an Appeal from the City of Lebanon Zoning Hearing Board decision, alleging that the Board’s decision to add conditions to the variance approval as “arbitrary and capricious and an abuse of discretion and against the weight of the evidence.” (Appeal filed June 29, 2016). The matter was listed for the August 2016 Term of Argument Court. Bohr filed a brief in support of his position on August 1, 2016. The Board filed a brief in support of its position on August 12, 2016. Oral argument was heard on August 26, 2016. The case is thus before us and ripe for disposition.

DISCUSSION

The scope of review in a zoning appeal where the trial court takes no additional evidence is limited to a determination of whether the zoning hearing board committed an abuse of discretion or an error of law. Phillips v. Zoning Hearing Board of Montour Township, 776 A.2d 341 (Pa. Cmwlth. 2001). A zoning hearing board commits an abuse of discretion if its findings are not supported by substantial evidence. Ruf v. Buckingham Township, 765 A.2d 1166 (Pa. Cmwlth. 2001).

Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103 (Pa. Cmwlth. 2001). If the board’s decision is “legally sound and supported by substantial evidence,” it must be upheld. Curtis Investment Company v. Zoning Hearing Board of the Borough of West Mifflin, 592 A.2d 813, 814 (Pa. Cmwlth. 1991).

Additionally, the Commonwealth Court has stated the following regarding variances:

Generally, a party seeking a variance has the heavy burden of establishing that (1) unnecessary hardship will result if the variance is denied, (2) the hardship is shown to be unique or particular to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district, and (3) the proposed use will not be contrary to the public interest…However, even where the requirements for a variance have not been met, the Board may grant a de minimis variance where only a minor deviation from the zoning ordinance is sought and rigid compliance is not absolutely necessary to protect the public policy concerns inherent in the ordinance.

Township of Middletown v. Zoning Hearing Bd. of Middletown Tp., 682 A.2d 900, 901 (Pa. Cmwlth. 1996).

In granting the requested variances, the Board found that the variance for the fence was de minimis and the use variance would be appropriate with conditions. The variances were granted upon the following conditions:

The use authorized is limited to the restoration of antique vehicles and all other automotive repair and/or maintenance is prohibited.

No parking of vehicles be on a pervious grass area.

Within six months, a City approved parking area shall be submitted for the parking of vehicles and an access drive.

The number of vehicles on the approved parking area will be limited to a maximum of five (5) which vehicles shall be completely intact, including tires.

All storage of equipment, parts, inventory and the like must be within a completely enclosed structure built for such purpose.

No outside storage be permitted in a trailer, POD container or any like storage.

No other vehicles are permitted on the premises other than those scheduled for rehabilitation, or vehicles used by the owner or employees for personal daily use.

The fenced in area shall include a deciduous vegetative screening on the outside of the fence to be maintained by the owner and replaced as needed.

The proposed fence be a residential open fencing of vinyl or wood.

(Board decision June 7, 2016).

Here, Bohr argues that the Board’s decision in imposing the abovementioned conditions was “arbitrary and capricious and an abuse of discretion and against the weight of the evidence.” In arguing this point, Bohr states that the Board received testimony from himself and his tenant indicating that for the business to run, Harclerode cannot meet all of the imposed conditions. For example, Harclerode indicated that he needs to be able to perform side jobs on vehicles that are not considered antique because that is his flow of cash.

Furthermore, Harclerode had testified that not all of the antique cars sitting outside of the warehouse can be completely intact as the conditions now impose. In addition, Harclerode argues that he needs outside storage for parts because he does not have the space indoors for the storage and that the Board’s condition that forbids storage in containers is an abuse of discretion. In essence, Bohr argues that the imposed conditions are in direct contravention to the variance he requested and eviscerates his ability to conduct his business on the property.

On the other hand, the Board argues that its decision to conditionally grant the requested variances is supported by substantial evidence and that it did not commit an abuse of discretion. The Board argues that the imposed conditions, attached to its granting of the variance are all responsible conditions and safeguards that were deemed necessary to implement the purpose of the Pennsylvania Municipalities Planning Code and the City of Lebanon Zoning Code. (Board’s Brief at 9).

The purpose of the Pennsylvania Municipalities Planning Code (MPC) states the following in relevant part:

It is the intent, purpose and scope of this act to protect and promote safety, health and morals; to accomplish coordinated development; to provide for the general welfare by guiding and protecting amenity, convenience, future governmental, economic, practical, and social and cultural facilities, development and growth, as well as the improvement of governmental processes and functions.

53 P.S. § 10105. In addition, the City of Lebanon Zoning Code’s purpose states the following:

The purpose of this Zoning Ordinance is the promotion of the public health, safety, morals and/or general welfare by…giving reasonable consideration, among other things, to the character of districts and their peculiar suitability for particular uses.

(The Zoning Ordinance of the City of Lebanon, Pennsylvania Art. 1301.02(i).

The MPC also states the following in regards to the functions of a Zoning Hearing Board when a variance is requested:

In granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the zoning ordinance.

53 P.S. 10910.2(b).

We agree with the Board. The conditions imposed by the Board in granting the requested variances were not an abuse of discretion and they were supported by substantial evidence. In this Commercial Neighborhood zoning district, surrounded by residences and a playground, the Board permitted a non-conforming use with conditions in order to safeguard the community within which it is located.

It is clear that the Board’s decision to conditionally approve the requested variances is supported by substantial evidence. There was ample testimony from citizens in the community, concerned that the requested variance will change their residential community and would be a safety hazard to the children who frequently play in the area. In seeking to address the concerns of those citizens directly impacted by the use of the property, yet not inhibit the private use of property, the Board imposed the abovementioned conditions. The conditions directly relate to the requested variance and aim to protect the integrity of the community in which the non-permitted use is being conducted.

Accordingly, the Court affirms the decision of the Board as it was supported by substantial evidence and therefore the Board did not abuse its discretion. We will enter an Order consistent with the foregoing.

 

1) In arguing against the conditions imposed by the Board, Bohr does not cite any authority to support his position that the Board’s decision was an abuse of discretion, arbitrary and capricious, and against the weight of the evidence. Bohr’s argument relies solely on his belief that the Board should have unconditionally granted the variance because that is what he needed; he did not need conditions attached and is a hindrance to conducting his business on the property.