POA Co. v. Findlay Township Zoning Hearing Board , 679 A.2d 1342 ( 1996 )

PELLEGRINI,¹ Judge.

The Township of Findlay (Township) appeals from a decision of the Court of Common Pleas of Allegheny County (trial court) that reversed a decision of the Findlay Township Zoning Hearing Board (Board) denying POA Company's (POA) request for a variance.

POA owned 5.5 acres of land located within the business park district² in the Township. Although POA’s land abuts State Route 60 (Airport Parkway) along its northerly line, there was no access to the property from the Airport Parkway. Abutting POA’s land at its easterly line is land owned by Martin Media (Martin). To the south of POA’s and Martin’s land, and abutting both properties, is land owned by Park Ridge II Associates (Park Ridge). Aten Road, a public roadway, runs generally in an east-west direction through part of Park Ridge’s land and passes within one-hundred feet of the southerly border of Martin’s land.

Until March of 1990, POA’s land contained various billboards. The Department of Transportation (Department) subsequently condemned approximately two and one-half acres of POA’s land that abutted the Airport Parkway. POA’s billboards, which were located on the condemned portion of the land, were removed in December, 1990.

On May 19, 1994, POA applied for a variance for the construction of two billboards on the remaining portions of its land. At the hearings, POA adduced the testimony of George Orcutt (Orcutt), its manager of real estate. Orcutt testified that, at the time the property had been acquired by POA’s predecessor in interest, Pittsburgh Outdoor Advertising, in 1952, there had been three billboards in the same portion of the property where the current billboards had been located. Orcutt explained that two of the previous billboards were combined into one billboard and then both billboards had been replaced. Orcutt testified that all of the billboards were in approximately the same location on the subject property along the Airport Parkway that was condemned by the Department. Orcutt further stated that, in order to service the billboards, POA and its predecessor in title had crossed over Martin’s land in order to obtain access to Aten Road. To support this testimony, POA adduced an agreement between itself and Martin confirming that POA had a twenty-foot wide easement along the southerly line of Martin’s land for access to its property.

The Township then presented the testimony of Sanford 0. Gold (Gold), a real estate broker and developer. Gold, testifying as an expert witness, stated that, based upon his surveys, photographs, plans and the zoning ordinance, POA’s property was suitable for the development of an office building. Gold also stated that the twenty-foot easement across Martin’s land would be sufficient to support the traffic associated with such an office building.³

In rebuttal to Gold’s testimony, POA contended that the right-of-way across Martin’s land did not provide access to Aten Road. Instead, POA argued, it was also required to cross a portion of Park Ridge’s land in order to obtain vehicular access to its property. In support of its argument, POA again offered the testimony of Orcutt who stated that access to Aten Road from POA’s property required one to cross Park Ridge’s property. Orcutt testified that POA’s employees had crossed over Park Ridge’s property when they were servicing POA’s billboards.

To support its claim that it had a prescriptive easement over Park Ridge’s property, POA offered into evidence a written agreement executed in preparation for the hearings on its request for a variance. In that agreement, Park Ridge acknowledged that POA had acquired an easement by prescription over its land from Aten Road to the southerly border of Martin’s land for the “purpose of erecting, maintaining, repairing, removing, replacing and otherwise caring” for outdoor advertising devices. The written agreement specified that POA’s use of the right-of-way had been limited to no more than three instances per month by a single vehicle for the servicing of the billboards. POA argued before the Board that its prescriptive easement over Park Ridge’s property was solely for the purpose of maintaining its signs. As such, its property could not be used as an office building because such a use would require them to overburden that easement.

At the conclusion of the hearings, the Board concluded that POA’s property would be suitable for construction of an office building if it had vehicular access. The Board then concluded that POA was or should have been aware of the limited access to the property at the time that it acquired the land, and that any hardship that POA experienced because of its limited access to the land was self-inflicted or was caused by its predecessor in title. After observing that neither POA nor it predecessor ever attempted to acquire land for a street or a public road, the Board denied POA’s request for a variance.

POA then appealed to the trial court, which reversed the Board’s decision. In so doing, the trial court observed that POA’s property lacks vehicular access but for that access permitted under POA’s easements with Martin and Park Ridge. The trial court then examined those easements and determined that they only permitted a limited use solely for the purpose of servicing POA’s billboards. The trial court concluded that the limited scope of POA’s easements could not be expanded to accommodate the traffic associated with an office building. Given these findings, the trial court concluded that POA’s lack of access to its property made that property unsuitable for any permitted use under the zoning ordinance and reversed the decision of the Board, thus granting POA a variance to construct the billboards on its property. The Township appeals to this Court.⁴

The Township contends that the trial court erred in determining that POA was entitled to a variance. The Township argues that POA created an artificial hardship by purposely limiting its access to the property. The Township contends that POA approached Park Ridge after it had filed its variance application and requested a written agreement that limited its right-of-way to no more than three vehicles per month. The Township argues that this limitation, in conjunction with the lack of any effort on the part of POA to gain access to its property, renders POA’s hardship self-inflicted, thus precluding the award of a variance.

In addition to showing that its land is virtually useless as it is presently zoned, an applicant for a use variance must also show that it did not create the hardship imposed by the zoning ordinance. Miller v. Zoning Hearing Board of Ross Township, 167 Pa. Cmwlth. 194, 647 A.2d 966 (1994). In other words, an applicant for a use variance must show that its inability to use its land in a manner consistent with the applicable zoning ordinance did not result from any conduct on its part. Id. If the landowner creates the inability to use its land according to the relevant zoning regulations, then a request for a variance must be denied. Glennon v. Zoning Hearing Board, 108 Pa.Cmwlth. 371, 529 A.2d 1171 (1987) (holding that, if a land owner creates a lot with no side or front street frontage, then the landowner cannot obtain a variance from the zoning ordinance requiring such frontage).

Under this principle of zoning law, it has been held that, if a landowner subdivides its land and subsequently seeks a variance from the lot size requirements for one of the subdivided parcels, the variance will be denied. In Re: Grace Building Co. Inc., 38 Pa.Cmwlth. 178, 392 A.2d 888 (1978); Ephross v. Solebury Township Zoning Hearing Board, 25 Pa.Cmwlth. 140, 359 A.2d 182 (1976). Because the actions of landowner in subdividing its property created its inability to comply with lot size requirements of the zoning ordinance, the landowner’s hardship was self-inflicted. Id. When a parcel of property can be used in a manner consistent with the applicable zoning regulations, the landowner cannot intentionally divide that property so that it cannot meet the zoning requirements and then seek a variance from those requirements. Id. See also Jenkin-town Towing Service v. Zoning Hearing Board, 67 Pa.Cmwlth. 183, 446 A.2d 716 (1982) (holding that if a landowner knowingly places obstacles in the way of the natural expansion of a non-conforming use, then a variance to expand that use will be denied).

In the present case, POA’s request for a variance was premised in part upon its contention that it had no other viable use of its land under the zoning ordinance. The Township, however, presented sufficient credible evidence to establish that POA’s land is suitable for the construction of an office building, a use that would be permitted under the ordinance. To counter this evidence, POA attempted to show that it was experiencing a hardship because it did not have adequate vehicular access to its property to support the traffic that would be associated with an office building. POA offered into evidence a written agreement that was specifically prepared for its application for a variance and memorialized its easement over the Park Ridge property. The agreement limited POA’s easement across the Park Ridge property to no more than three vehicles per month and solely for the purpose of maintaining POA’s billboards. Prior to the execution of this agreement, however, there were no express limitations on POA’s easement across the Park Ridge property, and therefore, there would have been no hardship that would have precluded POA from constructing an office budding on its property.⁵ As such, by entering into an agreement that specifically limited the use of its easement across Park Ridge’s property, POA intentionally created the hardship that it now claims prevents it from complying with the zoning ordinance; that self-inflicted hardship cannot now provide a basis for granting a variance.⁶ To allow otherwise would permit an owner of any landlocked property to execute an agreement limiting its easements across adjacent properties in order to avoid compliance with a zoning ordinance.⁷

Accordingly, the order of the trial court, reversing the Board’s denial of POA’s request for a variance, is reversed.

ORDER

AND NOW, this 20th day of June, 1996, the order of the Court of Common Pleas of Allegheny County at Nos. S.A 1789-94, S.A. 1869-94, and S.A. 3556-94, dated August 21, 1995, is reversed.

1 . This case was reassigned to the authoring judge on May 3, 1996.

2 . Under Section 117.315.5.7 of the Township’s zoning ordinance, the permitted uses within the business park district are limited to the following: business or professional office, financial institution, laundry and dry cleaning establishment, light mechanical repair and public office.

3 . Gold also testified that there were other uses permitted under the ordinance that were suitable for POA's property. He did not, however, set forth or describe those uses.

4 . Where, as here, no additional evidence was presented before the trial court, our scope of review is limited to determining whether the Board committed a manifest abuse of discretion or an error of law in denying the use variance. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

5 . The issue of whether the vehicular traffic associated with an office building would overburden POA’s actual prescriptive easement across Park Ridge’s property is a question of title restriction that cannot properly be addressed in zoning proceedings. See Calvanese v. Zoning Board of Adjustment, 51 Pa.Cmwlth. 152, 414 A.2d 406 (1980).

6 . It should also be noted that POA has made no attempt to gain access to its property by having the private road across the Park Ridge property declared a public road under the Private Roads Act. Act of June 13, 1836, P.L. 551, 36 P.S. §§ 2731-2738.

7 .Given our reversal of the trial court on this ground, we need not address the Township’s other challenges to the trial court's decision.