Suburban Realty, L.P. v. Stroud Twp. ZHB & Stroud Twp. Bd. of Supers. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Suburban Realty, L.P., :
Appellant :
:
v. : No. 715 C.D. 2019
: SUBMITTED: May 12, 2020
Stroud Township Zoning Hearing :
Board and Stroud Township Board :
of Supervisors :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 9, 2020
Appellant Suburban Realty, L.P., (Suburban) appeals from the Court of
Common Pleas of Monroe County’s (Trial Court) May 8, 2019 order, through which
the Trial Court affirmed the Stroud Township Zoning Hearing Board’s (Zoning
Board) September 5, 2018 decision. In that decision, the Zoning Board affirmed the
determination of Stroud Township’s zoning officer that Suburban could not rely
upon another Zoning Board decision, which had been issued in 2002, in order to
build 42 off-street parking spaces that had been “reserved” through that 2002
decision. In addition, the Zoning Board denied Suburban’s request for a dimensional
variance pertaining to the impervious coverage limit imposed by Stroud Township’s
Zoning Ordinance, which also impeded construction of those 42 spaces. After
thorough review, we affirm.
I. Facts and Procedural History
Suburban is the current owner of a property located at 1581 North 9th Street
in Stroud Township, Pennsylvania (Property). Board’s Decision (Decision),
Findings of Fact (F.F.), ¶2. This Property is zoned C-2 commercial and has an
18,563-square-foot, single-story commercial building, as well as 43 off-street
parking spaces, within its bounds. Id., F.F., ¶¶3-4.
On April 3, 2002, Francis J. Hager, the then-owner of the Property, filed an
application for relief with the Zoning Board, in furtherance of his plan to open a La-
Z-Boy furniture store on the premises. Reproduced Record (R.R.) at 199a-202a.
Under Schedule 27-VI of Stroud Township’s Zoning Ordinance, which governs off-
street parking requirements, the proposed La-Z-Boy store fell within the
classification of “Commercial - Retail, services, and commercial entertainment[.]”
Decision at 8; Zoning Ordinance, Schedule 27-VI, Regulations for Off-Street
Parking Spaces; see Zoning Ordinance § 27-801(1) (“Off-Street Parking Space
Requirement. Off-street parking spaces shall be provided, as set forth in Schedule
27-VI whenever any building is erected, enlarged, converted or is otherwise
required.”).1 As such, Hager needed to provide “1 [off-street parking spot] for every
200 gross square feet [of building space.]” Decision at 8; Zoning Ordinance,
Schedule 27-VI, Regulations for Off-Street Parking Spaces. Hager requested a
dimensional variance from the parking requirements, which Hager claimed
necessitated 85 off-street parking spaces, and asked that he be permitted “to build
43 spaces at this time (35 at front & 8 at rear) and reserve area to construct 42
additional spaces in the future.” R.R. at 202a. The Zoning Board granted Hager’s
application on May 1, 2002. Id. at 199a-200a. In this approval, the Zoning Board
1
Stroud Township’s Zoning Ordinance is inexplicably absent from the Trial Court Record
and was not filed of record in this appeal by any of the parties. It is, however, available online at
https://ecode360.com/33075932 (last visited July 8, 2020). We therefore take judicial notice of
Stroud Township’s Zoning Ordinance, as constituted on this website. See 42 Pa. C.S. § 6107(a)
(“The ordinances of municipal corporations of this Commonwealth shall be judicially noticed.”).
2
noted that Hager was seeking permission “to construct 43 [parking] spaces instead
of the minimum required of at least 85[.]”2 Id. at 199a. The Zoning Board stated that
it was allowing Hager to build “43 [parking] spaces (35 front; 8 rear) w/ reserve area
to construct 42 additional spaces in future.” Id. at 200a. On October 15, 2002, the
Stroud Township Board of Supervisors (Supervisors) gave final approval to Hager’s
development plan for the Property. Trial Court Record at 78; R.R. at 232a; Decision
at 9.3 Hager then erected an 18,563-square-foot building on the Property, which still
exists today, and established the 43 parking spaces he had requested. Decision, F.F.,
¶¶6, 13. There is no evidence suggesting, nor do any of the parties claim, that Hager
ever built the 42 additional, reserved parking spaces.
On May 5, 2003, the Supervisors enacted Ordinance 3-2003, which, in
relevant part, amended the Zoning Ordinance by decreasing the maximum amount
of impervious coverage for properties zoned C-2 commercial from 75% to 60%.
R.R. at 250a; Zoning Board Hr’g Tr., 8/1/18, at 44.
Hager subsequently sold the Property to AKA-PRA Limited Partnership
(AKA), which then submitted a new development plan for the Property to Stroud
Township. Decision, F.F., ¶14. AKA’s development plan called for changing the use
of the Property’s building from a retail store to a combined medical office,
ambulatory surgery center, and radiology suite. R.R. at 233a; Decision, F.F., ¶15.
This change in use also came with different requirements for the provision of off-
street parking. Under Schedule 27-VI of Stroud Township’s Zoning Ordinance, the
2
It is not clear how either Hager or the Zoning Board determined that Hager was required
by the Zoning Ordinance to provide only 85 parking spaces, as 18,563 divided by 200 equals
92.815, or roughly 93.
3
The pages of the Trial Court Record are not consistently numbered, so we have taken the
liberty of using our pinpoint citation to refer to the specific location in this document of each cited
item.
3
Property’s use was now classified as “Medical and Related Facilities - Medical,
dental and veterinarian[.]” Decision at 8-9; Zoning Ordinance, Schedule 27-VI,
Regulations for Off-Street Parking Spaces. Whereas the number of required parking
spots had previously been tied to the square footage of the building, it was now
directly linked to the number of on-site employees, with the Zoning Ordinance
mandating “4 [parking spots] for every doctor, dentist or professional person, plus 1
for every employee and professional[.]” Decision at 8-9; Zoning Ordinance,
Schedule 27-VI, Regulations for Off-Street Parking Spaces.
AKA’s development plan provided for 41 off-street parking spaces, but made
no mention of the 42 previously reserved spots. Zoning Board Hr’g Tr., 8/1/18, at
74; Decision, F.F., ¶19. This reflected AKA’s stated intent to provide the requisite
amount of parking for 4 doctors, 4 nurses, 1 technician, and 3 administrative staffers
(i.e., 24 off-street spots), while leaving room for expanding the number of on-site
personnel to a maximum of 7 doctors, 7 nurses, 2 technicians, and 4 administrative
staffers (i.e., 41 off-street spots). R.R. at 233a. Altogether, AKA only planned to
utilize about 9,000 square feet of space inside the Property’s building, or
approximately half of the building’s footprint. Zoning Board Hr’g Tr., 8/1/18, at 74;
Decision, F.F., ¶19. This plan received the final necessary governmental approvals
on February 6, 2008, allowing AKA to use the Property’s building as medical office
space with 41 off-street parking spaces. R.R. at 233a; Decision, F.F., ¶14.
In 2010, AKA requested that the Zoning Board grant a special exception,
which would enable AKA to operate a short-term stay medical and surgical facility
on the Property, as well as a dimensional variance, which would allow AKA to
expand its facilities even though, by doing so, impervious coverage on the Property
would consequently exceed the 60% limit set by Ordinance 3-2003. Suburban
4
Realty, L.P. v. Zoning Hr’g Bd. of Stroud Twp., (Pa. Cmwlth., No. 1791 C.D. 2010,
filed Sept. 29, 2011), slip op. at 1, 7-8, 2011 WL 10846198, at *1, *4.4 The Zoning
Board granted AKA’s requested variance, concluding that the relief sought was de
minimis, as well as the special exception, over Suburban’s opposition thereto. Id.,slip op. at 7-8, 2011 WL 10846198, at *4. Suburban, which owned an adjacent parcel
at that point in time, appealed the Zoning Board’s decision to the Trial Court, which
affirmed without taking additional evidence, prompting Suburban to appeal the
matter to our Court. Id., slip op. at 8-9, 2011 WL 10846198, at *4. Interestingly, in
that earlier appeal, Suburban argued before our Court that
notwithstanding the fact that [AKA] sought a de minimis
variance [pertaining to the 60% impervious coverage
limitation], [AKA] still had to establish the existence of
unique characteristics and a hardship that denied [AKA]
the reasonable use of the Property. . . . Suburban assert[ed]
that [AKA] already enjoy[ed] the reasonable use of the
Property and that it [was] the Property, not [AKA], that
must suffer the hardship because of the [Zoning]
Ordinance’s requirements. . . . According to Suburban,
[AKA]’s hardship [was] self-created in that it want[ed]
to construct a larger building and provide more
parking than [was] required by the [Zoning]
Ordinance[.5]
Id., slip op. at 9-10, 2011 WL 10846198, at *5 (internal citations omitted and
emphasis added). We agreed with the Trial Court that the Zoning Board had not
erred or abused its discretion by determining that AKA’s desired variance was de
4
Pursuant to Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code
§ 69.414(a), unreported Commonwealth Court opinions issued after January 15, 2008, may be
cited for their persuasive value.
5
We note, with interest, that Suburban now argues it is entitled to a dimensional variance
from the Zoning Ordinance’s impervious coverage limitations when, in opposing AKA’s request
for a de minimis variance from the very same impervious coverage limitations, it claimed that
AKA’s hardship was self-created and, thus, that no variance relief was warranted.
5
minimis or by concluding that AKA had established it was entitled to the special
exception and, on those bases, affirmed the Zoning Board’s decision. Id., slip op. at
1, 9-20, 2011 WL 10846198, at *1, *5-*10.
AKA subsequently sold the Property on January 15, 2018, to Suburban, which
then leased it to St. Luke’s Hospital (St. Luke’s). Decision, F.F., ¶¶16-17. St. Luke’s
intended to use the entirety of the Property’s building as medical office space, with
19 on-site employees. Id., F.F., ¶¶17-18, 20. As a result, St. Luke’s informed
Suburban that it needed 101 parking spaces to meet its needs. Id., F.F., ¶21.
Suburban sought to satisfy St. Luke’s request by proposing that 85 such spaces
would be situated on the Property itself, while up to 17 spaces would be built upon
another Suburban-owned parcel immediately to the west of the Property. Id., F.F.,
¶¶21-22.
On June 4, 2018, Mark R. Wolfe, Esquire (Wolfe), Suburban’s attorney, sent
a letter to Shawn McGlynn (McGlynn), Stroud Township’s zoning officer. In this
letter, Wolfe argued that Suburban, as a successor-in-interest to Hager for the
Property, was “entitled to construct the additional 42 parking spaces permitted by
the 2002 [Zoning] Board [d]ecision and, therefore, utilize the 75% impervious
coverage standard implicit in that approval, notwithstanding any subsequent
amendments of [Stroud] Township[’]s Zoning Ordinance.” R.R. at 204a. Wolfe
asked McGlynn for a ruling confirming the validity of Wolfe’s contention, which
would enable Suburban to build these 42 spaces without the need for any additional
governmental approvals. Id. at 205a. McGlynn responded via email by stating that
6
he found Wolfe’s argument to be without merit and that he would be issuing a formal
determination memorializing his conclusions.6 Id. at 206a, 216a.
On July 5, 2018, Suburban appealed McGlynn’s determination to the Zoning
Board, on the basis that the Zoning Board’s 2002 decision authorized Suburban to
build the 42 reserved parking spaces, because the variance granted to Hager was still
valid and Suburban was Hager’s successor-in-interest to the Property. Id. at 215a,
218a. In the alternative, Suburban requested a variance from the Zoning Ordinance’s
impervious coverage limit, which would allow it to build those 42 reserved parking
spaces, a step that would result in impervious coverage on the Property that exceeded
the 60% allowed by the Zoning Ordinance. Id. at 218a. After a public hearing on
August 1, 2018, the Zoning Board unanimously voted to affirm McGlynn’s ruling
and deny Suburban’s request for a variance. Zoning Board Hr’g Tr., 8/1/18, at 173-
76.
The Board issued its formal decision on September 5, 2018, and Suburban
subsequently appealed to the Trial Court. The Trial Court took no additional
evidence and affirmed the Zoning Board. This appeal followed.
6
Curiously, the record does not contain any such formal determination. None of the parties
have raised this irregularity as an issue, however, so we need not address it further.
7
II. Issues on Appeal7
Suburban raises the following arguments, which have been restated for
clarity’s sake. First, the 2002 dimensional variance, which was granted to Hager by
the Zoning Board, runs with the land and is still valid, as it was not conditioned on
the Property being used in a specific manner. Suburban’s Br. at 17-21. Second, the
Zoning Board misconstrued the Pennsylvania Municipalities Planning Code (MPC)8
in determining that the right to build the 42 reserved parking spaces expired 5 years
after the Supervisors’ approval of Hager’s development plan in 2002. Id. at 22-26.
The right to construct these additional spaces is protected in perpetuity from the 60%
impervious coverage limit imposed on properties in Stroud Township zoned C-2
commercial through the passage of Ordinance 3-2003, because Hager substantially
completed the improvements to the land required by the Supervisors-approved 2002
development plan within five years of the plan’s approval. Id. We address each
argument in turn.
III. Discussion
a. Continued Validity of 2002 Variance
Suburban correctly argues that, in general, a variance does not inhere to a
successful applicant, but instead to the affected parcel itself. Scalise v. Zoning Hr’g
Bd. of Borough of W. Mifflin, 756 A.2d 163, 166-67 (Pa. Cmwlth. 2000). However,
7
Since the Trial Court took no additional evidence, our standard of review is restricted to
determining whether the Zoning Board committed an abuse of discretion or an error of law. Valley
View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639-40 (Pa. 1983). “We may
conclude that the [Zoning] Board abused its discretion only if its findings are not supported by
substantial evidence. . . . By ‘substantial evidence’ we mean such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. at 640 (citations omitted).
8
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
8
in arguing that the 2002 variance still allows it to build the 42 reserved parking
spaces, Suburban mischaracterizes the very nature of that variance. “A variance is,
or should be, a fairly narrowly tailored cure for a site-specific hardship.” Id. at 167
(citing 53 P.S. § 10910.2(a)(5)).9 Here, the site-specific hardship facing Hager in
2002 was, as Suburban itself admits, the Zoning Ordinance’s then-applicable
requirement that 85 off-street parking spaces be built to service the proposed La-Z-
Boy furniture store. This variance did not give Hager special authorization to
construct those 85 spaces as he was already permitted to build that many if he so
chose. Rather, the variance permitted Hager to provide fewer spaces than required
by law, while making clear he could still elect to construct up to the maximum of 85
then required by the Zoning Ordinance. Thus, because the “cure” in 2002 for the
Property’s “site-specific hardship” was to reduce the mandated number of off-street
parking spaces from 85 to 43, Suburban cannot now leverage this variance to legally
justify construction of the heretofore unbuilt 42 reserved parking spaces.
Furthermore, the relief sought by Suburban is not the same as that which was
granted via variance to Hager in 2002. “A dimensional variance involves a request
to adjust zoning regulations to use the property in a manner consistent with
regulations[.]” Tri-Cty. Landfill, Inc. v. Pine Twp. Zoning Hr’g Bd., 83 A.3d 488,
520 (Pa. Cmwlth. 2014). Whereas the 2002 dimensional variance gave Hager leave
to deviate downwards from the Zoning Ordinance’s minimum requirements for off-
street parking, Suburban now seeks special dispensation from the Zoning
Ordinance’s maximum impervious coverage limit. These are, to state the obvious,
two entirely different things. Suburban thus has no authority under the 2002 variance
to build the additional parking spaces, as it does not give Suburban the right to
9
Section 910.2(a)(5) of the MPC, added by the Act of December 21, 1988, P.L. 1329.
9
exceed the Zoning Ordinance’s maximum impervious coverage limit for the
Property.
b. Expiration of Right to Build the 42 Reserved Parking Spaces
Suburban also correctly argues that the Zoning Board misconstrued the MPC
in concluding that the Supervisors’ 2002 approval of Hager’s development plan only
protected Hager’s ability to build the 42 reserved spaces for 5 years after the plan’s
approval. Section 508(4)(ii) of the MPC states, in relevant part, that
[w]hen an application for approval of a plat,[10] whether
preliminary or final, has been approved without conditions
or approved by the applicant’s acceptance of conditions,
no subsequent change or amendment in the zoning,
subdivision or other governing ordinance or plan shall be
applied to affect adversely the right of the applicant to
commence and to complete any aspect of the approved
development in accordance with the terms of such
approval within five years from such approval.
53 P.S. § 10508(4)(ii). In other words, all parts of an approved land use development
plan are insulated from subsequent changes to applicable, local land use laws for
five years after the plan’s approval. The Zoning Board applied this statutory
provision to the current matter and concluded that Hager and his successors-in-
interest were only protected from Ordinance 2-2003’s more stringent impervious
coverage limits until October 15, 2007, or five years after the Supervisors gave final
approval to Hager’s 2002 development plan. Decision at 9. Thus, the Zoning Board
determined that any right to construct the 42 reserved parking spaces, which would
result in total impervious coverage on the Property exceeding that allowed under
both the Zoning Ordinance and the terms of AKA’s 2010 de minimis variance,
expired on that date. Id.
10
A plat is “[a] map describing a piece of land and its features, such as boundaries, lots,
roads, and easements.” Black’s Law Dictionary 538 (3d Pocket ed. 2006).
10
These conclusions ignore Section 508(4)(iv) of the MPC, which provides:
Where the landowner has substantially completed the
required improvements as depicted upon the final plat
within the aforesaid five-year limit, or any extension
thereof as may be granted by the governing body, no
change of municipal ordinance or plan enacted subsequent
to the date of filing of the preliminary plat shall modify or
revoke any aspect of the approved final plat pertaining to
zoning classification or density, lot, building, street or
utility location.
53 P.S. § 10508(4)(iv). Given that the only part of Hager’s 2002 development plan
that was not built as part of the La-Z-Boy building project was the 42 reserved
spaces, there can be no doubt that Hager substantially completed the required
improvements, which therefore renders the 5-year time limit inapplicable. The
Zoning Board thus erred by concluding that the protection afforded to the 42
reserved parking spaces from the Zoning Ordinance’s 60% impervious coverage
limitation, which was adopted through Ordinance 3-2003, expired by operation of
law on October 15, 2007.
However, the Zoning Board’s error is ultimately a harmless one, due to the
combined effect of Section 508(4)(iv) of the MPC and the Supervisors’ approval in
2008 of AKA’s development plan.11 “In interpreting a statute, this Court endeavors
to ‘ascertain and effectuate the intention of the General Assembly.’ 1 Pa. C.S. §
1921(a). Because, []generally, the best indicator of legislative intent is the plain
language of the statute,[] we begin our inquiry by considering the words of the
statute.” Scungio Borst & Assocs. v. 410 Shurs Lane Developers, LLC, 146 A.3d
232, 238 (Pa. 2016) (internal citation and some punctuation omitted). Critically,
Section 508(4)(iv) of the MPC states, in part, that “no change of municipal
11
We may affirm a lower tribunal on any basis that is clear upon the face of the record. In
re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018).
11
ordinance or plan enacted subsequent to the date of filing of the preliminary plat
shall modify or revoke any aspect of the approved final plat[.]” 53 P.S. §
10508(4)(iv) (emphasis added). By its plain language, Section 508(4)(iv) of the
MPC protects an existing, approved and substantially completed development plan
from the effects of post-approval changes to applicable municipal regulations. What
it does not do, however, is preserve the particulars of an approved and substantially
completed development plan that has been superseded by a newer, more recently
approved, materially different development plan for the same property.
In this case, AKA’s 2008 development plan was materially different from,
and superseded, Hager’s 2002 development plan. The AKA development plan only
provided for 41 off-street parking spaces on the Property and made no mention of
the 42 reserved spots that had been part of Hager’s 2002 development plan. Zoning
Board Hr’g Tr., 8/1/18, at 74; Decision, F.F., ¶¶ 14, 19; R.R. at 233a. The number
of off-street parking spaces called for through AKA’s development plan was driven
by two things: the change in the Property’s use from furniture store to medical
facility, and the Zoning Ordinance’s disparate parking requirements pertaining to
each of these usage categories. See Decision at 8-9; Zoning Ordinance, Schedule 27-
VI, Regulations for Off-Street Parking Spaces. Thus, the protection afforded by
Section 508(4)(iv) of the MPC to Hager’s 2002 development plan, which shielded it
from the more stringent impervious coverage limitations imposed by Ordinance 3-
2003, disappeared upon the Supervisors’ approval in 2008 of AKA’s development
plan. Consequently, Suburban does not have the right to construct the 42 previously
reserved off-street parking spaces on the Property.
12
IV. Conclusion
As none of the issues raised by Suburban are meritorious, we affirm the Trial
Court’s May 8, 2019 order, through which the Trial Court upheld the Zoning Board’s
September 5, 2018 decision.12
__________________________________
ELLEN CEISLER, Judge
12
Suburban also states in a footnote at the end of its appellate brief that it wishes to preserve
its argument that it retains a vested right to the relief granted to Hager by the 2002 variance, as
well as that the Zoning Board erred by denying Suburban’s application for a new variance that
would allow for the construction of the aforementioned 42 reserved parking spaces. Suburban’s
Br. at 26 n.1. We deem both of these arguments waived, to the extent they articulate different bases
for ruling in Suburban’s favor than the arguments addressed in the discussion section of the
foregoing opinion, due to Suburban’s failure to fully and properly brief them. Dobson Park Mgmt.,
LLC v. Prop. Mgmt., Inc., 203 A.3d 1134, 1139 (Pa. Cmwlth. 2019); Pa. R.A.P. 2119(a).
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Suburban Realty, L.P., :
Appellant :
:
v. : No. 715 C.D. 2019
:
Stroud Township Zoning Hearing :
Board and Stroud Township Board :
of Supervisors :
ORDER
AND NOW, this 9th day of July, 2020, the Court of Common Pleas of Monroe
County’s (Trial Court) May 8, 2019 order, through which the Trial Court affirmed
Appellee Stroud Township Zoning Hearing Board’s September 5, 2018 decision, is
AFFIRMED.
__________________________________
ELLEN CEISLER, Judge