Owph Devco Llc V Zhb Of The Municipality Of Monroeville Municipality Of

Key Facts

Issues

• Whether the Zoning Hearing Board erred in concluding that the requested variances would alter the essential character of the neighborhood, impair adjacent property use, or be detrimental to public welfare.
• Whether the Zoning Hearing Board erred in denying OWPH's dimensional variance applications based on two grounds: (1) that the property could be developed in strict conformity with the ordinance, and (2) that unnecessary hardship was not established.

Holdings

Remedies

Legal Principles

• Zoning board decisions are reviewed under the substantial evidence standard. A zoning board may reject testimony it finds lacking in credibility, including expert testimony. Courts view the record in the light most favorable to the prevailing party unless material findings of fact are unsupported by substantial evidence. The Board's factual findings are binding if supported by substantial evidence.
• The applicant for a dimensional variance bears the burden to prove that the property cannot be developed in strict conformity with the zoning ordinance. The applicant must demonstrate that no conforming billboard can be built on the property, not merely that their preferred larger, interstate-facing location is economically unviable. Courts require applicants to prove the property cannot profitably be used for any purpose that conforms with the ordinance, not just the particular use the owner chooses.
• Dimensional variances require a lesser quantum of proof than use variances for the unnecessary hardship element. However, the applicant must still present evidence for each variance condition, including that the property cannot be developed in strict conformity with the ordinance. An applicant must prove the property cannot profitably be used for any purpose permitted by the zoning ordinance, not just their preferred use.

Precedent Name

• Johnson v. Zoning Hr'g Bd. of Richland Twp.
• O'Neill v. Zoning Bd. of Adjustment of Phila. Cnty.
• In re City Turf Club Op Co.
• Singer v. Phila. Zoning Bd. of Adjustment
• Four Seasons Logging, LLC v. Dep't of Lab. & Indus.
• Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh
• Leon E. Wintermyer, Inc. v. Workers' Comp. Appeal Bd. (Marlowe)
• Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hr'g Bd.

Cited Statute

• 2 Pa.C.S. § 754
• Act of December 21, 1988, P.L. 1329
• Monroeville Zoning Ordinance adopted December 11, 1984

Judge Name

• Lori A. Dumas
• Patricia A. McCullough
• Renée Cohn Jubelirer

Passage Text

• Zoning Ordinance § 359-48.E.1. There are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and the unnecessary hardship is due to the conditions and not the circumstances or conditions generally created by the provisions of this chapter in the neighborhood or district in which the property is located.2. Because of such physical circumstances or conditions there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.3. Such unnecessary hardship has not been created by the appellant.4. The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located nor substantially or permanently impair the appropriate use or development of adjacent property nor be detrimental to the public welfare.5. The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
• In sum, OWPH's evidence suffers from the same flaw identified in O'Neill and Johnson: it only demonstrated that a larger billboard facing the interstate would be economically viable. However, that alone does not establish that a smaller, conforming 150-square-foot billboard facing Old William Penn Highway would be economically unviable, nor did the evidence establish that the property cannot be used for some other permitted purposes. Because OWPH failed to prove one of the elements needed for a variance—that the property cannot be developed without the variance—we need not address its other arguments.
• For example, our Supreme Court reversed the grant of a dimensional variance, in which the applicant failed to prove that the property could not be used profitably for any permitted purpose under the ordinance. O'Neill, 254 A.2d at 15-16. The applicant owned a parking lot, and he applied for a variance to build a 26-story apartment building because the ordinance limited the maximum height to 12 stories. Id. at 14. The board granted the variance. Id. It was not disputed that the applicant could not profitably build and operate an apartment building of less than twenty-six floors on this site. Id. at 15 (citation modified).Nevertheless, O'Neill reversed on two grounds. Id. First, the applicant failed to prove that the property cannot continue to be utilized profitably in its present state as a parking lot. Id. Second, the applicant failed to prove the property could not profitably be used for some purpose which comports with the zoning requirements. Id. The applicant, per O'Neill, failed to present any evidence that the property could not profitably be used in some fashion which did not violate the ordinance. Id. at 16. The fact that one particular project may not be financially feasible under the ordinance was not determinative. Id. It was not determinative because the applicant failed to present evidence that the property cannot be profitably used within the present space requirements, i.e., the applicant had to prove the current use as a parking lot could not be profitable under the ordinance.