The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Appeal of 1406 Properties, LLC :
from the Decision, dated :
November 22, 2021, of the Zoning :
Hearing Board of Upper Providence :
Township :
: No. 1226 C.D. 2022
Appeal of: 1406 Properties, LLC : Argued: April 11, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 9, 2024
1406 Properties, LLC (Applicant) appeals from an order of the Court
of Common Pleas of Montgomery County (trial court). The trial court affirmed the
denial by the Zoning Hearing Board (ZHB) of Upper Providence Township
(Township) of Applicant’s requests for a special exception and multiple variances.
Upon review, we affirm the trial court’s order.
I. Background
Applicant owns a tract of real property (Property) in the Township.
Reproduced Record (R.R.) at 179a. Approximately 2.15 acres of the Property,
fronting on Ridge Pike, lies in the NC Neighborhood-Convenience Commercial
Zoning District (NC District). Id. The majority of the Property, approximately 10.4
acres, lies in the R-1 Residential-Agricultural Zoning District (R-1 District). Id.
The Property is currently used and occupied by a construction asphalt
paver, Kehoe Construction, Inc., and a second unidentified tenant. R.R. at 181a.
The Property is currently in use as
seven-numbered areas, including: (i) area 1 – landscape
supplies, including mulch, crushed stone, crushed
concrete, sand, topsoil, and other aggregates; (ii) area 2 –
stockpiles of dirt, mulch, crushed and uncrushed concrete;
(iii) area 3 – precast products such as concrete blocks and
jersey barriers; (iv) area 4 – topsoil screen, a crusher, a tub
grinder, a shredder, and other construction equipment
stored; (v) area 5 – recycled tree stumps and concrete; (vi)
area 6 – rented storage spaces . . . ; and (vii) area 7 –
concrete storage bins.
Id. at 180a. No part of the Property is currently used for offices. Id. at 181a. The
current uses of the Property do not constitute permitted uses in either the NC District
or the R-1 District. Id. However, the Township acknowledges that all current uses
constitute lawful preexisting nonconforming uses of the Property. Id. at 182a-83a.
In May 2021, Applicant submitted an application (Application) to the
Township’s Director of Planning and Zoning for a special exception and multiple
variances. R.R. at 172a. Applicant seeks to construct two 35-foot-tall buildings on
the Property, described as warehouses and divided into units to be leased. Id. at
183a. One building would be 35,000 square feet in size, located at the front of the
property near Ridge Pike, and situated in both the NC and R-1 Districts. Id. That
building would be divided into approximately 14 rental units with at least 500 square
feet of office space each. Id. The other building would be 65,100 square feet in size,
located in the rear half of the Property and entirely in the R-1 District. Id. That
building would be divided into approximately 26 rental units with at least 500 square
feet of office space each. Id. There would also be outside storage areas for each
building, including loading docks or ramps and parking for tenant vehicles and
2
equipment. Id. at 184a. Applicant’s proposed plan also includes landscape buffer
areas and stormwater management. Id. There are no leases in place for the planned
buildings; Applicant “foresees the tenants will be contractors in the need of
warehouse space with a little office space and some outdoor storage, including
contractors in the pool business, building, landscaping, property maintenance,
plumbers, electricians, maybe some automobile accessories, parts, printing, and
things of that [n]ature.” Id. (internal quotation marks omitted). Tenant uses might
also include light manufacturing, to occur only inside the buildings, as well as
storage of processed materials. Id. at 185a. No processing of stone would occur on
the Property, and existing crushers and screeners would be removed. Id.
Applicant’s proposed plan for development of the portion of the
Property located in the R-1 District does not comply with any of the uses permitted
in the R-1 District.1 R.R. at 185a. Applicant did not consider development of the
1
Regarding uses in the R-1 District, Section 182-40 of the Code of the Township of Upper
Providence, Pa. (1990) (Code) provides:
In an R-1 Residential-Agricultural District, a building may be erected, altered or
used and a lot or premises may be used or occupied for any of the following uses
and no other:
A. Agricultural uses, provided that a tract of not less than five acres is available and
further provided that any building used in the keeping or raising of livestock or
poultry shall be located not less than 100 feet from an ultimate right-of-way line
and not less than 50 feet from any other property line.
B. A single-family detached dwelling.
C. Any of the following uses when authorized as a special exception:
(1) A greenhouse.
(2) Noncommercial recreation uses, including golf, tennis and swimming
clubs.
3
R-1 portion of the Property in compliance with the permitted uses for the R-1 District
under the zoning provisions of the Code, such as for residential dwellings. Id. at
185a-86a, 192a-93a & 200a. Applicant’s engineer testified that residential
development would not fit Applicant’s needs, stating, “It’s a business model.
They’re not in the home business.” Id. at 186a.
The ZHB found that Applicant’s proposed plan for development of the
portion of the Property located in the NC District does not comply with any of the
uses permitted in the NC District.2 R.R. at 186a. The record does not indicate that
....
(4) A stand, for use more than six months in any calendar year, for the sale
of products of the farm on which it is located.
(5) Communications antennas, in accordance with the provisions of § 182-
21.1, mounted on an existing public utility transmission tower, existing
building or other existing structure, and communications equipment
buildings, only upon a showing, in addition to any other that may be
required under this chapter, that denial of such a special exception would
have the effect of prohibiting the provision of personal wireless service.
Communications towers are not permitted.
D. Accessory uses on the same lot with and customarily incidental to any permitted
use.
E. Home occupations, provided that all of the requirements of § 182-21.4 herein can
be met.
F. No-impact home based businesses in accordance with the standards set forth in
§ 182-21.3 herein.
Id. (editor’s notes, footnotes, and reserved subsections omitted).
2
Regarding uses in the NC District, Section 182-86 of the Code, which is far more detailed
and complex than Section 182-40, provides:
In an NC . . . District, a building or group of buildings may be erected, altered or
used and a lot may be used or occupied for any of the following uses and no other:
4
A. One of the following uses are permitted on parcels with a minimum lot area of
1/2 acre (21,780 square feet):
(1) Personal service shops such as barbers, hairdressers, dry
cleaners/laundries, and self-service/coin-operated laundry operations.
Machine laundry and dry-cleaning plants shall not be permitted within this
district; dry-cleaning/laundry establishments are limited to pickup stations
only.
(2) Doctor, dentist, orthodontist or other similar professional office, limited
to a sole practitioner, with ancillary staff.
(3) Business office, limited to a sole practitioner, with ancillary staff.
(4) Communication antennas.
(5) An accessory use on the same lot with and customarily incidental to any
of the above permitted uses.
(6) Conditional uses permitted on parcels with a minimum lot area of 1/2 an
acre (21,780 square feet) and subject to the standards outlined within § 182-
86G, herein:
(a) Any use of the same general character, but not specifically
named, as those uses set forth in Subsection A(1) through (5),
herein.
B. Uses permitted on parcels with a minimum lot area of one acre (43,560 square
feet):
(1) Any use or any combination of two of the uses listed within Subsection
A of this section. The combination of uses must be within a single building;
or
(2) Any one of the following uses:
(a) Retail sale of goods in an individual store, including variety and
general merchandise, including clothing, food, prescription drugs,
household supplies or furnishings, repair or sale of jewelry, watches
and clocks, optical goods, repair or sale of household electronics, or
the sale and repair of musical, professional or scientific instruments.
(b) A business or professional office, studio, bank or other financial
institution, or public utility office. As regulated by § 182-90.1, uses
5
within rehabilitated buildings will earn a bonus of 10% additional
building coverage and 5% additional impervious coverage.
(c) Doctor, dentist, orthodontist or other similar professional office
with four or fewer practitioners, with ancillary staff.
(d) Restaurant, cafe or similar establishment.
[1] Restaurant shall not contain drive-in facilities.
[2] Curbside pickup facilities are permitted, and any parking
spaces associated with or labeled as “curbside” shall not be
included as part of the required number of parking spaces
under Article XXII.
[3] Any parking spaces for curbside pickup facilities must be
installed a minimum of 65 feet from the main entry to the
restaurant and be contiguous to the building.
(3) An accessory use on the same lot with and customarily incidental to any
of the above permitted uses.
(4) Conditional uses permitted on parcels with a minimum lot area of one
acre (43,560 square feet) and subject to the standards outlined within § 182-
86G, herein:
(a) Any use of the same general character, but not specifically
named, as those uses set forth in Subsection B(1) through (3) herein.
(5) Conditional uses, per the requirements in § 182-86G, permitted on
parcels with a minimum lot area of one acre and with a minimum two-
hundred-foot frontage on a road classified as collector or higher by the
Upper Providence Township Rights-of-Way Map. . . . .
(a) Drive-in/fast-food restaurants.
[1] Drive-in/fast-food restaurant hours will be limited to
between 6:00 a.m. and 12:00 midnight on any day during the
week.
[2] The drive-in portion of any drive-in/fast-food restaurant
shall not be permitted within 100 feet of any lot that is
residentially used or zoned.
6
[3] Drive-in/fast-food restaurant uses do not include portable
food carts, temporary food stands, temporary barbeque
stands, outdoor sales of food or any other temporary food
vending operation, all of which are prohibited.
(b) Outdoor eating facilities (i.e., sidewalk cafes). Applicants for
this conditional use shall show that the outdoor eating space will not
impede pedestrian flow, parking or other traffic.
(c) Any combination of the uses contained within Subsection B
herein.
[1] The design and overall appearance of buildings must be
harmonious and fit within the context of the surrounding
neighborhood and comply with the requirements of the
design guidelines in § 154-36.3 of Chapter 154, Subdivision
and Land Development.
(d) Banks or other financial institutions, with drive-through
facilities.
(e) Office buildings or office campus complexes with no more than
two buildings.
(f) Gas stations or other automotive repair facilities, but not
including any use which includes vehicle painting and/or vehicular
body repair. Except for incidental emergency repair work, vehicle
repairs and service are to be conducted indoors.
(g) An accessory use on the same lot with and customarily incidental
to any of the above uses. . . .
C. Uses permitted on parcels with a minimum lot area of three acres (130,680
square feet):
(1) Any combination of the uses listed within Subsection A or B herein.
(a) The uses may be in separate buildings; however, the design and
overall appearance of buildings must be harmonious and fit within
the context of the surrounding neighborhood and comply with the
requirements of the design guidelines in § 154-36.3 of Chapter 154,
Subdivision and Land Development.
7
(b) If existing buildings are retained and rehabilitated for the uses
contained herein, the same coverage bonuses regulated by § 182-
90.1 shall apply; or
(2) Any of the following uses:
(a) Funeral parlor.
(b) Motel or motor court.
(c) An auction establishment, flea market or outdoor sale of a similar
nature.
(d) Post office.
(e) Day-care facility.
(3) An accessory use on the same lot with and customarily incidental to any
of the above permitted uses.
(4) Conditional uses permitted on parcels with a minimum lot area of three
acres (130,680 square feet) and subject to the standards outlined within §
182-86G herein:
(a) Any use of the same general character, but not specifically
named, as those uses set forth in Subsection C(1) through (4) herein.
(b) Vehicular sales facilities, which may include vehicle repair, but
not vehicular body work, and must meet the following conditions:
[1] The tract must have at least 200 feet of frontage on a
street designated as a collector.
[2] The tract must be within 1,500 feet of an arterial street.
[3] Vehicular sales facilities may not be located on any
parcel that abuts a tract with residential zoning or use.
[4] Vehicle delivery shall be conducted on site, or through
off-site contract arrangements, but not on public streets or
rights-of-way.
[5] Customer and employee parking areas are clearly
identified and not used for vehicle display purposes.
8
[6] Except for incidental emergency repair work, vehicle
repairs and service are to be conducted indoors.
[7] Display vehicles shall not be displayed on elevated
stands or located within five feet of any property line.
[8] Accessory uses such as repair facilities or other uses
incidental to the primary use of vehicular sales, may not
occupy more than 50% of the premises and must be
conducted in direct relationship to the principal use.
[9] Vehicle display space may be reduced to eight feet by 16
feet, and vehicles may be stacked three cars deep without
side aisleways. In the first row of a front yard display,
vehicles adjacent to the public right-of-way may not be
parked or displayed any tighter than achieved with ten-foot
wide parking spaces.
(c) Wholesale sales which may have an associated storage facility
or self-service storage facility.
[1] Deliveries and general servicing cannot typically require
tractor-trailer trucks of WB-40 classification or larger.
[2] The facility does not require a loading dock, forklift, or
similar mechanical device for loading/unloading.
[3] All nonvehicular storage shall be contained within a
building or collection of buildings with a similar design and
appearance.
[4] Any building face seen from abutting public streets shall
have a generally retail appearance.
[5] Any storage or sales facilities that have residential uses
or zoning immediately adjacent must include a Type 3
buffer[] on the shared property line. . . .
[6] Recreational vehicle and automobile storage is permitted
outside on no more than 5% of the net lot area; provided,
however, that all vehicles stored on site have a current
registration with the Commonwealth of Pennsylvania.
9
[7] The area set aside for outdoor storage of recreational
vehicles or automobiles shall be at least 100 feet from any
residentially zoned or used property and shall not be visible
from any roadway.
[8] Maximum building coverage may be increased by 5% if
there is no outside storage of recreational vehicles or
automobiles, and an additional 5% if maximum impervious
coverage is reduced to 65% or less.
....
D. As a secondary use to those listed above, residential units are permitted only
above street level on a commercial establishment, with the following restrictions:
(1) Sufficient parking for all uses is provided in accordance with the
requirements of this district and with Article XXII, Off-Street Parking and
Loading.
(2) In parcels less than one acre (43,560 square feet), two residential units
are permitted.
(3) In parcels larger than one acre (43,560 square feet), no more than three
residential units are permitted.
(4) An accessory use on the same lot with and customarily incidental to any
of the above permitted uses is permitted as a conditional use.
E. Bed-and-breakfast establishments are permitted on any size lot, provided that:
(1) It is conducted out of an existing single-family building;
(2) All guest stays are limited to one week or less;
(3) All parking is provided on the side or in the rear of the building, with
none located further forward than the front of the building;
(4) Two parking spaces shall be provided for the resident innkeeper, one
additional space shall be provided for each guest room, and one additional
space for each employee during the highest staffing period.
(5) No more than one sign identifying the facility may be provided, which
shall conform to the requirements of § 182-145C if it is freestanding, or be
10
Applicant ever considered developing that portion of the Property in compliance
with the Code’s permitted uses for the NC District before seeking variances. Id. at
192a-93a & 200a.
Applicant initially suggested that its proposed development would be
merely a continuation of its existing lawful nonconforming use. R.R. at 186a. The
Township, however, took the position that the proposed development would not be
a continuation of the existing use and that relief from the Code’s requirements would
be necessary for the proposed development. Id. Accordingly, Applicant submitted
its application for a special exception and multiple variances, as follows:
a. A variance, if required, from Section 182-173.A.
of the [Code], to permit the proposed development and
a maximum of 20 square feet if attached to the building. Any sign may be
illuminated only through indirect lighting.
F. Outdoor storage. The use of outdoor areas for any type of storage is prohibited.
The use of semitrailers, metal storage or shipping containers or temporary storage
buildings for temporary storage or during a loading or unloading procedure is
permitted only in designated loading areas.
G. Standards for consideration of conditional uses. The Board of Supervisors shall
determine that the following standards are met prior to granting approval of a
conditional use application:
(1) The use will not generate a significantly greater amount of traffic
volume than those uses permitted within the NC . . . District herein in the
judgment of the Township Board of Supervisors, upon recommendation of
the Township Engineer and Traffic Consultant, based upon the submission
of a traffic impact study, as per the requirements of § 182-89B herein.
(2) The use shall not generate noise, noxious odors, air pollution or glare
nor result in pedestrian-vehicular conflict or other safety hazards.
(3) Any necessary loading and unloading operations shall be carried on
within or contiguous to the facade of any conditional use structure.
Code, § 182-86 (editor’s notes and footnotes omitted).
11
use, as a continuation of the nonconforming use of the . . .
Property, to be conducted indoors.
b. A special exception under, and if necessary, a
variance from, Section 182-173.C. of the [Code], to permit
the majority of the current nonconforming uses, which are
presently conducted outdoors, to be conducted indoors as
part of the proposed development and use.
c. In the alternative to the requested variance from
Section 182-173.A. and the requested special exception or
alternative variance under or from Section 182-173.C.:
(1) A variance from the permitted use
provisions of the R-1 District at Section 182-40 of
the [Code], to permit the proposed development and
use to the extent located and conducted on that
portion of the . . . Property in the R-1 District.
(2) A variance from the permitted use
provisions of the NC District at Section 182-86 of
the [Code], to permit the proposed development and
use to the extent located and conducted on that
portion of the . . . Property in the NC District.
d. A variance from the maximum 10% building
coverage requirement of Section 182-41.B. of the [Code],
to permit the building coverage of the proposed
development and use, to the extent located in the R-1
District, to be approximately 19.19% of that portion of the
. . . Property within the R-1 District.
Id. at 187a. 3 Variance requests c and d were submitted as alternatives to variance
and special exception requests a and b. Id. at 195a.
3
Applicant originally included the following additional variance request:
e. A variance from the six-month permit application time
period under Section 182-195.D. of the [Code], to allow Applicant
a period of one year from the date of the [ZHB] decision granting
Application No. 21-09, as amended, to apply for building or other
12
After a hearing held in August 2021, the ZHB issued an order denying
the Application. R.R. at 172a & 203a. In its accompanying decision, the ZHB
concluded that no variance from Section 182-173.A. of the Code was necessary for
the proposed development and use of the Property; that Applicant was not entitled
to a special exception or the alternative variance requested under Section 182-173.C.
of the Code because the proposed development and use of the Property does not
constitute a continuation or natural expansion of the existing lawful nonconforming
use; that Applicant did not satisfy its burden of proof for variances from the R-1
District and NC District use provisions at Section 182-40 and Section 182-86,
respectively, of the Code; and that Applicant is not entitled to a variance from the
maximum 10% building coverage limitation of Section 182-41.B. of the Code
because that variance request was rendered moot by the denial of the other requests
in the Application.4 R.R. at 202a-03a.
Applicant appealed to the trial court, which affirmed the ZHB’s order
without taking additional evidence. R.R. at 821a & 831a. Applicant’s appeal to this
Court followed.
permits to which Applicant may be entitled as a result of such
decision.
R.R. at 187a. This last variance request was related to delays anticipated as a result of the COVID-
19 pandemic. Applicant has withdrawn this request, and it is not at issue in this appeal.
4
The ZHB also denied Applicant’s request for a variance from the six-month application
deadline, but as noted above, that issue is not before this Court on appeal.
13
II. Issues
Applicant raises three issues on appeal.5 First, Applicant asserts that
the ZHB committed an error of law or abuse of discretion by denying a special
exception pursuant to Section 182-173 of the Code for the alteration or expansion of
a legal nonconforming use. Second, Applicant contends that the ZHB committed an
error of law or abuse of discretion by denying variances from Sections 182-40 and
182-86 of the Code that would allow the proposed use of the Property in the R-1 and
NC Districts. Third, Applicant posits that the ZHB committed an error of law or
abuse of discretion by denying a variance from Section 182-41.B. of the Code to
allow 19.19% building coverage for the portion of the Property in the R-1 District,
where maximum coverage is 10.0%.
III. Discussion
A. Alteration or Expansion of Nonconforming Use
Applicant insists it presented substantial competent evidence that its
proposed development would merely constitute an alteration6 or expansion of the
5
Where the trial court takes no additional evidence in a conditional use matter, our review
is limited to considering whether the local governing body erred as a matter of law or abused its
discretion, which occurs when the body’s findings of fact are not supported by substantial
evidence. Williams Holding Grp., LLC v. Bd. of Supervisors of W. Hanover Twp., 101 A.3d 1202,
1212 n.8 (Pa. Cmwlth. 2014).
6
We observe that the Code does not allow for a special exception for an “alteration” of a
legal nonconforming use. Rather, Section 182-173.A. of the Code relates to alteration of a
nonconforming building, structure, or land; it provides:
No structural alterations or additions or enlargements of any
nonconforming building, structure or land will be permitted which
would violate the side, front or rear yard setback lines or building
coverage of the zone in which the building, structure or land is
located, provided that in residential zones where there is a
14
existing legal nonconforming use on the Property. Applicant reasons that the current
and proposed uses are similar in nature because both involve rental of space to
contractors, storage of their supplies, equipment and vehicles, and processing of raw
materials into other products. Applicant claims it “simply proposes to conduct these
activities in two [] future buildings rather than continue them outdoors.” Br. of
Appellant at 12. We disagree.
Section 182-173.C. provides that an existing nonconforming use may
be “expanded or extended when authorized by a special exception by the [ZHB] . . . .”
Code, § 182-173.C. This provision is consistent with the doctrine of natural
expansion, which we have described as follows:
The natural expansion doctrine provides that “a
nonconforming use cannot be limited by a zoning
ordinance to the precise magnitude thereof which existed
at the date of the ordinance; it may be increased in extent
by natural expansion and growth of trade, neither is it
essential that its exercise at the time the ordinance was
enacted should have utilized the entire tract upon which
the business was being conducted.” Nettleton v. Zoning
[Bd.] of Adjustment of the City of Pittsburgh, . . . 828 A.2d
1033, 1037 n.3 ([Pa.] 2003) (quoting Humphreys v. Stuart
Realty, . . . 73 A.2d 407, 409 ([Pa.] 1950)). The rationale
of the doctrine has its origins in the due process
nonconforming use as to side, front or rear yard setback line, a
permissible alteration or addition may be built on the line with the
existing side, front or rear nonconforming building line, respectively,
except that a violation of a setback line not previously violated shall
not be permitted.
Code, § 182-173.A. Moreover, expansion or extension of an existing nonconforming building or
structure is limited “to a total maximum of 50% of the area devoted to the use as of the effective
date of [Chapter 182 of the Code].” Code, § 182-173.C. Here, the area presently devoted to
nonconforming structures is zero, a 50% expansion of which is still zero. Therefore, Section 182-
173.A. is inapplicable; alteration of a nonconforming building or structure is not at issue here. (As
the entire Property is currently subject to the existing nonconforming use, there is no issue
concerning expansion of the land in that regard.)
15
requirements protecting private property; if a person owns
property which constitutes an existing, legal, non-
conforming use, it is “inequitable to prevent him from
expanding the property as the dictates of business or
modernization require.” Silver v. Zoning [Bd.] of
Adjustment, . . . 255 A.2d 506, 507 ([Pa.]1969). A
municipality cannot, per se, prohibit the natural expansion
of a non-conforming use. Id. . . . at 508.
To determine whether a use qualifies as a continuation or
expansion of a non-conforming use, our Supreme Court
has held that the proposed use need not be identical to the
current use. Domeisen v. Zoning Hearing [Bd.] of O’Hara
[Twp.], 814 A.2d 851, 856 (Pa. Cmwlth. 2003). Rather,
the proposed use must be sufficiently similar to the non-
conforming use as to not constitute a new or a different
use. Id. Our Supreme Court has also held that a change
in instrumentality will not defeat the purpose or existence
of a non-conforming use. [Twp.] of Chartiers v. William
H. Martin, Inc., . . . 542 A.2d 985, 988 ([Pa.]1998). The
Court, in Chartiers, warned that an “overly technical
assessment” of an established nonconforming use cannot
be utilized to “stunt” its natural development and growth.
Id. . . . at 988. Thus, the owner of a nonconforming use
may utilize modern technology into the business without
fear of losing that business. Id. . . . at 989.
However, the right to expand a nonconforming use is not
unlimited, and a municipality has every right to impose
reasonable restrictions. Silver, . . . 255 A.2d at 507. For
instance, the right to expand does not include the right to
add a second non-conforming use. Daley v. Zoning
Hearing [Bd.] of Haverford [Twp.], . . . 461 A.2d 347 (Pa.
Cmwlth. 1983) . . . .
Arter v. Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1230-31 (Pa. Cmwlth.
2007) (footnote omitted). Applicant concedes that “[t]o qualify as a continuation of
an existing nonconforming use, a proposed use must be sufficiently similar to the
nonconforming use as not to constitute a new or different use.” Br. of Appellant at
18 (first citing Limley v. Zoning Hearing Bd. of Port Vue Borough, 625 A.2d 54, 54
16
(Pa. 1993); then citing Itama Dev. Assocs., LP v. Zoning Hearing Bd. of Twp. of
Rostraver, 132 A.3d 1040, 1051 (Pa. Cmwlth. 2016);7 and then citing Foreman v.
Union Twp. Zoning Hearing Bd., 787 A.2d 1099, 1103 (Pa. Cmwlth. 2001)).
Here, the ZHB did not err in denying a special exception. Applicant
insists it will merely be continuing the existing outdoor uses indoors, but that is
manifestly not the case. As set forth above, the Property is currently in use for
storing materials such as mulch, crushed stone, crushed concrete, sand, topsoil, dirt,
topsoil screen, crushed and uncrushed concrete, concrete blocks and jersey barriers,
a crusher, a tub grinder, a shredder, recycled tree stumps, rented storage spaces, and
concrete storage bins. R.R. at 180a. No part of the Property is currently used for
offices. Id. at 181a. Although there are no leases in place for the planned buildings,
Applicant “foresees” future use of the proposed buildings as “warehouse space with
a little office space, storage of processed materials, light manufacturing, and some
outdoor storage, by contractors in the pool business, building, landscaping, property
maintenance, plumbers, electricians, automobile accessories, parts, printing, and
things of that [n]ature.” Id. at 184a-85a.
We conclude that the ZHB did not err in finding that Applicant’s
proposed possible uses of the Property were not sufficiently similar to the existing
nonconforming use to constitute a continuation or expansion rather than a new use.
Further, to the extent that Applicant contends that its proposed uses are permitted
under the Code, Applicant has failed to explain how its proposed uses fit within the
permitted uses in the Code, as set forth in note 2, supra. Moreover, we observe that
7
Although Applicant’s brief does not use quotation marks, the quoted language actually
constitutes a direct quote of the language contained in Limley v. Zoning Hearing Board of Port
Vue Borough, 625 A.2d 54, 54 (Pa. 1993), and Itama Development Associates, LP v. Zoning
Hearing Board of Township of Rostraver, 132 A.3d 1040, 1051 (Pa. Cmwlth. 2016), not merely a
citation. We have likewise omitted the additional quotation marks in quoting the brief.
17
Applicant failed to state with sufficient specificity exactly what uses it intends to
make of the buildings it proposes to construct on the Property. As the future tenants
are unknown, Applicant’s anticipation of what types of businesses might lease space
in the buildings is merely speculative.
Applicant insists it offered “credible evidence” that it will not be
altering the existing uses, but merely enclosing them in buildings to that effect. Br.
of Appellant at 15. Credibility determinations, however, are for the ZHB. Omatick
v. Cecil Twp. Zoning Hearing Bd., 286 A.3d 413, 429 n.19 (Pa. Cmwlth. 2022),
appeal denied, 301 A.3d 420 (Pa. 2023). Moreover, in analyzing whether substantial
evidence supports an agency’s findings, courts must view the evidence in the light
most favorable to the party that prevailed before the fact-finder. Liberties Lofts LLC
v. Zoning Bd. of Adjustment, 182 A.3d 513 (Pa. Cmwlth. 2018). The relevant
question on appeal is not whether, as Applicant contends, it presented evidence in
support of its position that would have justified the ZHB in making different
findings, but rather, whether there was substantial evidence to support the findings
the ZHB actually made. Id. Here, as discussed above, Applicant’s own evidence
established the differences between the current uses of the Property and those
proposed to take place in the buildings Applicant seeks to construct. Thus, the
ZHB’s findings were supported by substantial evidence.
Applicant also observes that its proposed development would “clean up
and modernize” the Property, reduce noise, and provide a landscaping buffer, all of
which would make the Property more attractive. Br. of Appellant at 20-21 & 24.
However, whether a proposed use will improve the appearance of a property is not
18
part of the standard for obtaining a special exception.8 Nothing in that standard
suggests that either a motive to improve a property’s appearance or an expected
8
That standard is:
§ 182-199 Permits for variances and special exceptions.
A. All applications for variances and special exceptions shall be made in writing on
forms furnished by the Township Secretary.
B. Special exceptions shall not be granted by the Zoning Hearing Board unless the
applicant therefor shall establish:
(1) That the granting of the special exception will not adversely affect the
public interest.
(2) That the proposed structure or development complies with the letter and
intent of this chapter.
(3) That the public health, safety and welfare have been protected in the
following respects, where applicable:
(a) Ingress and egress to and from property and proposed structures
thereon, with particular reference to automotive and pedestrian
safety and convenience, traffic flow and control and access in case
of fire or catastrophe.
(b) Off-street parking and loading areas, where required, with
particular attention to the items in Subsection B(1) above with the
noise, glare or odor effects of the special exception on adjoining
properties and properties generally in the district.
(c) Refuse and service areas, with particular reference to the items
in Subsection B(1) and (2) above.
(d) Utilities, with reference to locations, availability and
compatibility.
(e) Screening and buffering, with reference to type, dimensions and
character.
(f) Signs, if any, and proposed exterior lighting with reference to
glare, traffic safety and compatibility and harmony with properties
in the district.
19
improvement of a property will support a variance or a special exception. See also
Center City Residents’ Ass’n v. Zoning Bd. of Adjustment of Phila. (Pa. Cmwlth.,
No. 1217 C.D. 2008, filed July 29, 2009),9 slip op. at 7 (concluding that an
applicant’s evidence of the improvements it would make to the appearance of the
property and the steps it would take to leave the daily life of the neighborhood
unchanged did not support a variance). Further, at least as to the landscaping buffer,
Applicant has not pointed to any requirement for a special exception to allow the
installation of such a buffer.
For all of these reasons, the ZHB did not err or abuse its discretion in
denying the special exception.
B. Variances from the R-1 and NC District Restrictions
As an alternative to its special exception request, Applicant next asserts
that the ZHB erred and abused its discretion in denying variances from the R-1 and
(g) Required yards and other open spaces.
(h) The general compatibility with adjacent properties and other
property in the district.
C. To the extent permitted by law, all burdens of proof, persuasion and going
forward with evidence shall be upon the landowner in connection with any variance
or special exception. In allowing a variance or special exception, the Zoning
Hearing Board may attach such reasonable conditions and safeguards in addition to
those expressed in the chapter, as it may deem necessary to implement the purposes
of the Pennsylvania Municipalities Planning Code [Act of July 31, 1968, P.L. 805,
as amended, 53 P.S. §§ 10101-11202] and this chapter . . . .
Code, § 182-199 (editor’s note omitted).
9
We cite this unreported opinion as persuasive authority pursuant to Section 414(a) of this
Court’s Internal Operating Procedures. 210 Pa. Code § 69.414(a).
20
NC District use provisions of Code Sections 182-40 (R-1 District) and 182-86 (NC
District). We disagree.
The ZHB found that Applicant failed to meet its burden of proving the
requisites for variance relief. R.R. at 201a-02a. Applicant asserts that, in so finding,
the ZHB ignored some supporting evidence. Br. of Appellant at 27. However,
Applicant’s arguments regarding use variances misconstrue these requisites and do
not offer viable legal justifications for the variances requested here.
Under Section 910.2(a) of the Pennsylvania Municipalities Planning
Code (MPC),10 a use variance may be granted,
provided that all of the following findings are made where
relevant in a given case:
(1) That 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 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 the reasonable use of the
property.
(3) That such unnecessary hardship has not been created
by the appellant.
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in which
10
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. § 10910.2(a).
21
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) That 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.
53 P.S. § 10910.2.
Regarding the first criterion for variance relief, Applicant presented
evidence tending to show that the Property has unique physical circumstances or
conditions, specifically narrowness, sloping topography, and the presence of a man-
made pond affecting access to part of the Property. R.R. at 13a, 53a, 55a, 107a-08a
&124a-25a. Critically, however, Applicant did not meet the second and third criteria
for variance relief. Applicant utterly failed to demonstrate that, because of those
physical conditions of the Property, it cannot be developed in strict conformity with
the provisions of the Code, and a variance is necessary to enable the reasonable use
of the Property.
Applicant also fails to recognize that although it did not create the
Property’s physical conditions, it nonetheless created any resulting hardship itself.
Applicant posits that “[t]he current use of the Property is not reasonable. It is an
unsightly mess.” Br. of Appellant at 28. However, Applicant’s own evidence
indicated that it had not explored whether it could feasibly use the Property for a
permitted use; it simply sought a variance because the proposed buildings and new
commercial or industrial uses were part of its “business model.” R.R. at 186a. In
its brief, Applicant argues that “[t]he purpose of this proposal is to take the activities
currently being done outdoors on the Property, and put them within and immediately
adjacent to two [] buildings. These variances are the only relief that will afford
[Applicant] the ability to accomplish this.” Br. of Appellant at 30. Thus, Applicant
22
is again asserting that it needs variances simply to accomplish its self-created
business goals, not to make a reasonable use of the Property. Applicant fails to point
to any evidence that residential construction is not feasible on the R-1 portion of the
Property or that none of the commercial uses permitted in the NC District would be
reasonable.
This Court has previously held that an applicant does not establish an
undue hardship justifying variance relief merely by asserting an economic hardship
that arose based on the applicant’s own business plan. Borough of Pitcairn v. Zoning
Hearing Bd. (Pa. Cmwlth., No. 1253 C.D. 2021, filed Jan. 22, 2024), slip op. at 12-
13 (citing Lawrenceville Stakeholders v. City of Pittsburgh Zoning Bd. of
Adjustment, 247 A.3d 465, 475 (Pa. Cmwlth. 2021) (explaining that “[w]here
variances are sought solely to enhance profitability, the asserted hardship arises not
from the nature and circumstances of the property itself but is self-inflicted by way
of the variance applicant’s preferred or proposed use of the property”)) (additional
citation omitted).
Applicant has similarly failed to meet the fifth variance criterion.
Applicant offers a bare averment that its requested variances represent the minimum
relief necessary. Br. of Appellant at 30. All that Applicant really asserts, however,
is that the relief requested is the minimum that will allow Applicant to accomplish
its business goal. Id. As discussed above, Applicant has failed to point to any record
evidence that another reasonable use of the Property cannot be made in conformity
with the Code’s limitations.
For these reasons, we conclude that the ZHB did not err or abuse its
discretion in denying Applicant’s request for variances from the use limitations in
the Code relating to the R-1 and NC Districts.
23
C. Variance from Maximum Lot Coverage Limitation
Because the ZHB denied Applicant’s requests for a special exception
and use variances, it concluded that Applicant’s request for a variance from the lot
coverage limitation was “rendered moot, and, therefore, that it is not necessary for
the [ZHB] to decide the merits of the requested variance.” R.R. at 201a. Applicant
maintains that this was error. The focus of Applicant’s argument, however, is not
the ZHB’s failure to reach the merits of that issue, but rather, its failure to grant the
lot coverage variance.11 See Br. of Appellant at 31-34. Once again, we disagree
with Applicant’s position.
Applicant acknowledges that the same criteria apply to dimensional
variances as to use variances. Br. of Appellant at 31-32. Applicant observes,
however that a dimensional variance is of lesser moment than a use variance and
that the quantum of proof required to establish unnecessary hardship is less than for
a use variance. Id. at 32-33 (citing Hertzberg v. Zoning Bd. of Adjustment of the City
of Pittsburgh, 721 A.2d 43 (Pa. 1998)).
Applicant posits, in a conclusory fashion, that it “presented sufficient
testimony showing that this variance is required for the reasonable use of the
Property.” Br. of Appellant at 33. Applicant’s supporting argument, however, belies
its bare averment. The gist of Applicant’s reasoning is that its proposed use of the
Property is reasonable and would be more “orderly” than the current use; that the
proposed uses are similar to those permitted in the Township’s M-1 Office and
Limited Industrial Zoning District and some uses permitted in the M-2
Manufacturing Industrial District under the Code, where permitted lot coverages are
11
Nonetheless, we deem the merits of the lot coverage variance to be a subsidiary of the
ZHB’s failure to reach that issue, and therefore, the merits are not waived. See Pa.R.A.P.
1925(b)(4)(v).
24
40% and 60% respectively; and that “the building coverage variance will not alter
the essential character of the neighborhood.” Id. at 33-34. Nothing in this argument
asserts any unnecessary hardship from complying with the more stringent lot
coverage restrictions of the R-1 and NC Districts, in which the Property is located.
Further, in its argument here, as in its argument in Section III.B above, Applicant
points to the narrow and sloping character of the Property, the presence of a
manmade pond, and limited sight distance governing driveway placement on the
Property, but fails to connect those conditions to any unnecessary hardship. Just as
Applicant has not pointed to any evidence that it could not reasonably develop the
Property for a permitted purpose, it has not pointed to any evidence that it could not
reasonably develop the Property in compliance with the lot coverage restrictions in
the Code.
For these reasons, we conclude that the ZHB did not err or abuse its
discretion in failing to grant Applicant a variance from the Code’s lot coverage
limitations.
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s order.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Appeal of 1406 Properties, LLC :
from the Decision, dated :
November 22, 2021, of the Zoning :
Hearing Board of Upper Providence :
Township :
: No. 1226 C.D. 2022
Appeal of: 1406 Properties, LLC :
ORDER
AND NOW, this 9th day of May, 2024, the order of the Court of Common
Pleas of Montgomery County, entered September 14, 2022, is AFFIRMED.
___________________________________
CHRISTINE FIZZANO CANNON, Judge