Lawrenceville Stakeholders v. The City of Pittsburgh ZB of Adjustment v. City of Pittsburgh ~ Appeal of: Duncan Ventures, LLC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrenceville Stakeholders, :
Mary Coleman, Jill Joyce, :
Bill Joyce and Victor Capone :
:
v. :
:
The City of Pittsburgh Zoning :
Board of Adjustment :
:
v. :
:
City of Pittsburgh :
: No. 779 C.D. 2020
Appeal of: Duncan Ventures, LLC : Argued: February 9, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge (P.)
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: March 5, 2021
Appellant, Duncan Ventures, LLC (Duncan) appeals from the July 13,
2020, Order of the Court of Common Pleas of Allegheny County (trial court)
reversing the October 30, 2019, decision of the Pittsburgh Zoning Board of
Adjustment (Board). Over the opposition of Appellees (Lawrenceville Stakeholders
and Neighbors),1 the Board granted Duncan four dimensional variances from the
Pittsburgh Zoning Code (Code) for a Lawrenceville property (the Property) currently
zoned for single attached dwellings. Duncan planned to develop the Property by
1
Neighbors, Mary Coleman, Jill Joyce, Bill Joyce, Victor Capone, and the organization
called Lawrenceville Stakeholders are the Appellees before this Court.
demolishing an existing detached single residence on the Property, subdividing the
parcel, and building five new four-story attached single-family dwellings with
garages, rear decks, and rooftop decks. Upon review, we affirm the trial court’s
order.
I. Factual & Procedural Background
In June 2019, Duncan applied to the City of Pittsburgh’s Division of
Zoning and Development Review for dimensional variances necessary to develop
the Property. Reproduced Record (R.R.) at 29a-31a. The Property, an irregularly
shaped 7500-square-foot parcel of land with a two-story detached single-family
residence built in the 19th century, is in the R1A-VH (Residential Single-Unit
Attached, Very High-Density)2 zoning district in the Central Lawrenceville
neighborhood.3 Id. at 29a-31a. The Property, located at 186 Home Street, is located
2
Pursuant to Section 903.03.E.2 of the Pittsburgh Zoning Code (Code), the R1A-VH
designation is for high-density residential areas with single-family residences. The minimum lot
size is 1200 square feet and the maximum height of a structure is 40 feet not to exceed 3 stories.
The minimum rear setback (required open space) is 15 feet. Minimum front, exterior side, and
interior side setbacks are 5 feet with the potential for a reduced minimum “contextual” side setback
pursuant to Section 925.06C of between 3 and 5 feet depending on the lot width, with 3 feet being
available for lots narrower than 37 feet across.
3
During the pendency of this appeal, Neighbors advised this Court that in October 2020,
the detached single residence was ultimately demolished by the current owners, who obtained a
permit for the demolition. Neighbors’ Br. at 3 n.2 & 6 n.4 (citing City of Pittsburgh’s Permits,
Licenses, & Inspections website (https://pittsburghpa.buildingeye.com/building) (last visited Feb.
9, 2021) and specifying Permit Number DP-2019-09535 (Residential General – Complete
Demolition)). Neighbors asked this Court to take judicial notice of the demolition permit, citing
cases where this Court has previously taken judicial notice of information available on local
governmental public records websites. Id. at 3 n.2 (citing Collier Stone Co. v. Twp. of Collier Bd.
of Comm’rs, 735 A.2d 768 (Pa. Cmwlth. 1999), and Valley Forge Chapter of Trout Unlimited v.
Twp. of Tredyffrin (Pa. Cmwlth., No. 161 M.D. 2016, filed Dec. 20, 2016), 2016 WL 7369088(unreported)). Duncan has not objected and has not disputed that the demolition occurred.
However, this Court declines to take judicial notice of the demolition permit. Due to our
disposition of this matter, whether the house has already been or will later be demolished is not
relevant to our analysis.
2
one block north of Butler Street and bordered by Home Street, Antwerp Way, Eden
Way, and by the neighboring lot on 184 Home Street. The shape of the parcel is an
irregular quadrilateral. Appellant’s Br. at 3.
Duncan agreed to purchase the Property conditioned upon zoning
approval and was therefore its equitable owner for purposes of seeking the variances.
Id. at 146a. Duncan’s proposal required four dimensional variances from the Code.
First, Duncan requested a variance from Section 903.03.E.2, which generally
imposes minimum five-foot interior side setbacks for primary and exterior
structures. See Board Decision, R.R. at 11a. Duncan requested a variance
completely eliminating the setbacks. Id. at 8a. Second, and relatedly, Duncan
applied for a variance from Section 925.06.C, which reduces Section 903.03.E.2’s
general 5-foot side setback minimum to a specific “contextual” 3-foot minimum if
the lot in question is narrower than 37 feet wide.4 Id. at 11a. Duncan again requested
a variance completely eliminating the setbacks. Id. at 8a. Third, Duncan applied for
a variance from Section 926.129, which requires new lots to front on streets at least
25 feet wide. See Trial Ct. Op., R.R. at 300a. Four of the five lots Duncan proposed
as its subdivision of the Property would front on Antwerp Way and Eden Way, both
of which are only 20 feet wide. Board Decision, R.R. at 9a. Fourth, Duncan
requested a variance from Section 903.03.E.2’s provision limiting the maximum
4
Section 925.06.C (“Contextual Side Setbacks”) states:
“Regardless of the minimum side setback requirements imposed by the zoning
standards of this Code, applicants shall be allowed to use a Contextual Side
Setback. The Contextual Side Setback shall apply only to primary uses and
structures. A Contextual Side Setback may fall at any point between the required
side setback and the side setback that exists on a lot that is adjacent and oriented to
the same street as the subject lot, but shall be a minimum of three (3) feet.” Code
§ 925.06.C. According to the included table, for lots 37 feet wide or less, the
minimum required setback is 3 feet.
3
height of new construction to 40 feet and 3 stories. Id. at 11a. Duncan asserted that
its proposed townhouses would be within 40 feet tall, but requested a variance to
build the structures 4 stories each to account for garages on the ground floor. Id. at
9a-10a.
Duncan’s application was opposed by Neighbors and various local
individuals and entities. A joint letter was submitted to the Board by Lawrenceville
Corporation and Lawrenceville United, which work together to “improve and protect
the quality of life for all Lawrenceville residents” and to encourage “responsible
growth and reinvestment in the Lawrenceville community.” Id. at 46a. The letter
stated that those organizations held an open public community meeting on Duncan’s
proposal at which “impacted residents” voiced concerns relating to the siting and
impact of the proposed townhouses and garages. Id. The letter maintained that
Duncan’s project “does not present any hardship for why the zoning relief is
necessary, and consequently we are opposed.” Id. Another organization,
Lawrenceville Stakeholders, which described itself and its members as “advocates
for the preservation of historic Lawrenceville,” issued a statement opposing the
project for the same reasons. Id. at 47a. The statement cited density and congestion
concerns with Duncan’s proposal and alleged it would have an adverse impact on
the neighborhood, expressed a belief in the feasibility of developing the Property
without variances, and averred that Duncan failed to show an evidentiary basis for
the requested variances. Id. at 47a.
At the August 2019 hearing before the Board, Matt Stookey (Stookey),
Duncan’s principal, testified as a fact witness. R.R. at 145a. He stated that he had
over 10 years of real estate experience, beginning with “flipping houses” in Detroit,
Michigan and later in Pittsburgh. Id. at 164a. He stated that he has done “about a
4
dozen” renovations in the Lawrenceville area since 2012 and produced new
construction since 2015-16. Id. at 164a-65a. He acknowledged, however, that he
has neither an appraiser’s certification nor a real estate license. Id. at 165a.
Stookey acknowledged that the agreement to purchase the Property was
contingent upon zoning approval. R.R. at 146a-48a. He submitted into evidence a
two-page financial analysis of the project, drafted by him, which cited a purchase
price of $415,000 for the Property with the then-existing detached single residence
still intact on it and proposed sale prices of $663,000 per new townhouse. Id. at
139a-40a. Stookey stated that Duncan had considered a project of only four
townhouses, but that building fewer than five townhouses would have resulted in a
significant net loss for the overall project. Id. at 161a-62a. Except for the analysis
drafted by Stookey, Duncan did not produce the actual agreement of sale or any
estimates, reports, or appraisals of the fair market value of the Property with the
then-existing detached single residence, as a vacant lot, or with any number of
townhouses upon it.
Stookey averred that the proposed five attached townhouses, designed
to face Eden Way with both front doors and garages opening onto Eden Way, would
all be on lots of at least the minimum acceptable size set by the Code and would not
exceed the Code’s 40-foot height limitations. R.R. at 52a, 147a, 153a & 156a; see
also Board Decision, 10/30/19, R.R. at 10a (describing the proposed project).
Stookey stated that in order to minimize street parking on Home Street, the proposed
townhouses were sited with integrated off-street parking garages, which necessitated
the townhouses (except for one) being fronted on Eden Way. Id. at 52a & 155a.
According to Stookey, the parking garages on the ground floor of the proposed
townhouses made a fourth story necessary for each residence. Id. at 156a-57a.
5
Stookey explained that the orientation of the Property along Eden Way,
which is angled between the parallels of Home Street and Antwerp Way, rendered
the parcel irregularly shaped. Id. at 52a & 153a-55a. This made it necessary for the
townhouses to be staggered in such a way that for several feet at the front and back
of each townhouse, the structures were unattached from each other. Id. In those
specific aspects of the proposal, according to Stookey, instead of the Code’s
provisions for minimum setbacks of five or three feet as required by Sections
903.03.E.2 and 925.06.C of the Code, the requested variances from those provisions
would enable all five proposed townhouses to fit on the site. Id.
In opposition, Neighbors testified at the hearing. Jill Joyce, a registered
architect and resident of Lawrenceville, lives near the Property. R.R. at 169a-70a.
She asserted that the proposed five-townhouse project would break up the aesthetic
continuity of Home Street. Id. at 174a. She recommended a project limited to three
townhouses that would not need variances and would lessen the impact on the
neighboring area, and she presented a rendering of her proposed alternative. Id. at
49a & 171a-72a. She acknowledged that she had not conducted a financial
feasibility analysis of her proposal, but believed that Duncan’s cited purchase price
of $415,000 for the Property, which was part of Duncan’s calculations of its expected
losses if it could not do the project as proposed with the requested variances, was
“really high.” Id. at 177a.
Mary Coleman, a nearby resident and member of Lawrenceville
Stakeholders, also testified for Neighbors. She asserted that Eden Way, on which
the proposed five townhouses would front, is a narrow commercial alley parallel to
and behind Butler Street, which is the main commercial road in Lawrenceville. R.R.
at 186a-87a. It is lined with dumpsters and has daily truck traffic of deliveries and
6
trash pickup for Butler Street’s businesses and apartment buildings. Id. at 187a.
Counsel for Neighbors explained the Code’s requirement that houses must front onto
a street and that Eden Way is not a street but a commercial alley, such that having
five residences fronting on it as Duncan proposes would be a safety hazard. Id. at
188a-91a. Ms. Coleman explained that there are already concerns with traffic and
congestion in the immediate area that would be worsened by Duncan’s project. Id.
at 192a-93a & 196a.
A further witness for Neighbors was Polly Biswas, who lives at 154
Home Street, about a block away from the Property. R.R. at 199a. She was opposed
to Duncan’s proposal and averred that to “cram five houses into that one lot, it’s
going to not only aesthetically detract from Home Street, it’s going to make things
more congested and worse for the people that currently live there.” Id. at 200a.
Dave Breingan, executive director of Lawrenceville United, spoke on
behalf of that organization and Lawrenceville Corporation. Based on community
meetings at which concerns were raised similar to those presented at the hearing, the
organizations opposed Duncan’s proposal and believed Duncan did not establish
“any real hardship that justified supporting the zoning relief that’s requested here.”
R.R. at 202a.
On October 30, 2019, the Board issued its decision granting all of the
variances sought by Duncan.5 R.R. at 8a-12a. The Board accepted Stookey’s
testimony, citing his “credible financial analysis.” Id. at 10a, 12a. The Board
accurately described the testimony of Neighbors’ witnesses in opposition to the
variances, but did not specifically opine as to their credibility. Id. at 10a-11a. The
Board concluded that the irregular shape of the Property and its location
5
A previous version dated October 24, 2019, was revised to correct a typographical error.
R.R. at 8a.
7
“immediately adjacent to a commercial service alley are unique conditions that limit
strict compliance with the Code’s requirements.” Id. at 12a. The Board also found
the requested variances “will not cause negative off-site impacts” and were the
“minimum necessary to provide relief from the unique conditions associated with
the [Property].” Id.
Neighbors appealed to the trial court, at which point the City of
Pittsburgh intervened in support of the Board’s determination and Duncan
intervened on its own behalf. Id. at 2a-5a, 15a-18a, 247a-48a. The trial court took
no new evidence, and after briefing and oral argument, issued its July 13, 2020,
decision and order reversing the Board’s determination. R.R. at 299a-304a. The
trial court found that Duncan had not shown that the Property was truly irregular or
that it presented valid “topographical challenges,” much less “provide[d] any
evidence as to how the shape of the lot contributes to hardship.” Trial Court Opinion,
7/13/20; R.R. at 303a. The trial court specifically cited Ms. Joyce’s testimony in
addition to the other witnesses for Neighbors as to both the negative local impact of
Duncan’s project and the feasibility of Ms. Joyce’s alternative proposal that would
not require variances. Id. The trial court concluded: “The record does not support
the Board’s granting of [Duncan’s] requested variances. Therefore, the Board’s
decision approving the variances is reversed.” Id.
II. Issues on Appeal
Duncan appealed to this Court, asserting that the trial court erred as a
matter of law and abused its discretion in reversing the Board’s determination.
Specifically, Duncan argued that the trial court incorrectly reweighed the evidence
before the Board, failed to give deference to the Board’s credibility determinations
and interpretation of the Code, and wrongly credited Neighbors’ testimony “that
8
concerned redevelopment feasibility but was not based on any financial analysis.”6
Id.
In its brief, Duncan maintains that the Board correctly considered all of
the evidence, including the irregular shape and size of the Property, the diagonal
border along Eden Way, all of the costs associated with acquisition, demolition, and
redevelopment, the scarcity of parking in the neighborhood leading to the need for
each proposed townhouse to have a garage, and the proximity to the Lawrenceville
commercial area. Duncan’s Br. at 15-16. Duncan asserts that it established before
the Board that without the requested variances, meaningful development and use of
the Property would be financially prohibitive and thus commercially impracticable,
and that the variances it seeks for the proposed five townhouses are the minimum
required to respect the existing local conditions while being financially feasible. Id.
at 15-17.
Duncan points out that while the Board’s decision specifically credited
Stookey’s testimony in support of the variances to be credible, it did not expressly
credit Neighbors’ witnesses’ testimony, including Ms. Joyce’s proposed alternative
plan siting only three townhouses on the Property. Duncan’s Br. at 17. Thus,
Duncan argues that the trial court overstepped its role and wrongly reweighed the
6
Verbatim, Duncan’s issues were posed as follows:
I. Did the [trial] court abuse its discretion in reweighing the evidence before the
[Board]?
II. Did the [trial] court err as a matter of law and abuse its discretion when it failed
to provide deference to the [Board’s] determinations of credibility?
III. Did the [trial] court err as a matter of law when it credited testimony in
opposition to dimensional variances that concerned redevelopment feasibility
that was not based on any financial analysis?
Duncan’s Br. at 1 (Statement of Questions Presented).
9
evidence to favor Ms. Joyce’s testimony that the Property could physically be
developed without the requested variances over Duncan’s countervailing evidence
that to do so would be financially unfeasible. Id. at 2, 7, 12, & 17 (citing R.R. at
150a-51a, 159a-60a).
Duncan argues that it is not required to show that the property would
be utterly valueless or useless without the variances and that the commercial
impracticality of proceeding without the variances is sufficient to establish the
requisite level of economic hardship. Duncan’s Br. at 10-17; Duncan’s Reply Br. at
3 (citing Hertzberg v. Zoning Bd. of Adjustment of Pittsburgh, 721 A.2d 43, 47 (Pa.
1998) and Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa.
Cmwlth. 2015)).
In response, Neighbors argue that the trial court did not reweigh the
evidence presented, but properly limited its inquiry to whether Duncan had
submitted sufficient evidence to support the variances it sought and correctly
concluded that Duncan had not done so. Neighbors’ Br. at 5-6. Neighbors maintain
that the trial court did not err in concluding that Duncan failed to meet all of the
elements required by the Code and case law. In particular, Neighbors argue that
Duncan failed to show that the physical characteristics of the Property, particularly
its shape and location, caused sufficient economic hardship warranting the variance
sought by Duncan. Id. at 8. Neighbors aver that Stookey did not even try to establish
this element in his testimony, which was limited to his statement that the Property is
an “angled lot.” Id. at 9 (citing R.R. at 151a). Neighbors argue that Duncan seeks
the requested variances solely so that it can “shoehorn” five townhouses onto a lot
where three Code-compliant townhouses could be built without the need of
10
variances, and that Duncan’s preference or desired design for the Property is
insufficient to warrant variances. Neighbors’ Br. at 9-10.
Neighbors assert that the cases on which Duncan relies for its argument
that this Property presents a basis for variances to be analyzed under a relaxed
standard may all be distinguished because the variance applicants in those cases
presented evidence of property conditions beyond economic hardship alone, such as
the utility easements and potential environmental loss of a longstanding tree line at
issue in Tidd. Neighbors’ Br. at 12-13. Here, Neighbors characterize Duncan’s
asserted economic detriment as little more than a quest for enhanced profitability
through developing a now-vacant lot into expensive single-family homes in order to
take advantage of the recent gentrification of the area, which has enacted zoning
regulations specifically to address and control the impacts of such development. Id.Neighbors further aver that the two-page financial document prepared
by Stookey, purporting to show that putting only four townhouses on the Property
would lead to a negative balance sheet for the development project, was insufficient
to support the Board’s decision. Neighbors’ Br. at 6, 14 (citing R.R. at 139a-40a).
Neighbors contend that any lack of profitability asserted by Duncan as hardship,
based on the $415,000 price of a purchase that is itself contingent on obtaining the
variances, is due to Duncan’s own decision to gamble that it would receive the
variances, and is not itself a basis for the variances. Id. at 14-15 (citing Appeal of
Gro, 269 A.2d 876, 880-81 (Pa. 1970) (variance applicant who paid high price for
property because he assumed the variance would be granted and would justify the
purchase price was not entitled to variance as hardship was self-inflicted rather than
inherent in the property)).
11
Neighbors therefore contend that even if the Board found Stookey’s
testimony credible, the record contains insufficient facts and evidence to support the
Board’s decision to grant the variances at issue. Neighbors’ Br. at 17. Instead,
Neighbors argue that Duncan asked the Board to take its figures on faith and that
despite finding Stookey credible, the Board erred in doing so. Id. As such,
Neighbors maintain that the trial court correctly reversed the Board. Id.III. Analysis
Where, as here, the trial court did not take any additional evidence,
appellate review of the decision of a zoning hearing board is limited to determining
whether the board abused its discretion or committed legal error. Township of Exeter
v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). An abuse of
discretion occurs when a zoning hearing board’s findings are not supported by
substantial evidence in the record. Id. Substantial evidence is that relevant evidence
which a reasonable mind would accept as adequate to support the conclusion
reached. Id. However, the court may not substitute its interpretation of the evidence
for that of the zoning hearing board. Tidd, 118 A.3d at 13. It is the zoning hearing
board’s function to weigh the evidence before it and it is the sole judge of the
credibility of witnesses and the weight afforded their testimony. Id. The appellate
court must view the evidence in a light most favorable to the prevailing party, which
must be given the benefit of all reasonable inferences arising from the evidence. Id.“A variance is an extraordinary exception and should be granted
sparingly[.]” Heisterkamp v. Zoning Hearing Bd. of Lancaster, 383 A.2d 1311, 1314
(Pa. Cmwlth. 1978). Section 922.09.E of the Code, which is adopted from Section
10910.2(a) of the Pennsylvania Municipalities Planning Code7 (MPC), 53 P.S. §
7
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101–11202.
12
10910.2(a),8 provides that the Board may grant a requested variance where it finds
that an applicant has established the following conditions:
(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 [applicant].
(4) That 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) 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.
Code § 922.09.E. Our courts have synthesized the necessary factors into a three-
part test in which the variance applicant must show: 1) unique circumstances or
conditions of a property that would result in an unnecessary hardship; 2) no adverse
8
Added by the Act of December 21, 1988, P.L. 1329.
13
effect on the public welfare; and 3) the requested variance would afford relief with
the least modification possible. Dunn v. Middletown Twp. Zoning Hearing Bd., 143
A.3d 494, 500 (Pa. Cmwlth. 2016) (citing Tri-County Landfill, Inc. v. Pine Twp.
Zoning Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth. 2014)).
Where, as here, we are faced with a dimensional variance as opposed
to a use variance, our Supreme Court has articulated a more relaxed standard for
granting a variance requiring a lesser quantum of proof. “When seeking a
dimensional variance within a permitted use, the owner is asking only for a
reasonable adjustment of the zoning regulations in order to utilize the property in a
manner consistent with the applicable regulations.” Hertzberg, 721 A.2d at 47.
Thus, “the grant of a dimensional variance is of lesser moment than the grant of a
use variance, since the latter involves a proposal to use the property in a manner that
is wholly outside the zoning regulation.” Id.
Under this relaxed standard, when addressing the element of
unnecessary hardship, “[c]ourts may consider multiple factors, including the
economic detriment to the applicant if the variance was denied, the financial
hardship created by any work necessary to bring the building into strict compliance
with the zoning requirements and the characteristics of the surrounding
neighborhood.” Hertzberg, 721 A.2d at 50. The requisite economic hardship can
be shown by “demonstrating either that physical characteristics of the property are
such that the property cannot be used for the permitted purpose or can only be
conformed to such purpose at a prohibitive expense, or that the property has either
no value or only a distress value for any permitted purpose.” Bernotas v. Zoning
Hearing Bd. of City of Bethlehem, 68 A.3d 1042, 1049 (Pa. Cmwlth. 2013)
(affirming grant of dimensional variances).
14
Notably, however, while Hertzberg eased the requirements in the
context of dimensional variances, it did not negate them, and potential economic
detriment is only one consideration. Tidd, 118 A.3d at 8. A variance applicant must
still present evidence establishing each of the conditions listed in the zoning
ordinance. Id. Where no hardship is shown, or where the asserted hardship amounts
merely to a landowner’s desire to increase profitability or maximize development
potential, the unnecessary hardship criterion required to obtain a variance is not
satisfied, even under the relaxed standard. Id. The burden on the applicant remains
heavy and an applicant “must demonstrate something more than a mere desire to
develop a property as it wishes or that it will be financially burdened if the variance
is not granted.” Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 150 (Pa.
Cmwlth. 2011).
Instances where our Courts have permitted a “purely economic”
concern to warrant variances are limited to where the physical aspects of the
properties warranted the exceptional remedy of the requested variances because the
variance was “the only way for the subject property to be used for virtually any
permissible productive use.” Hertzberg, 721 A.2d at 49-50 (quoting Vitti v. Zoning
Bd. of Adjustment of the City of Pittsburgh, 710 A.2d 653 (Pa. Cmwlth. 1988)). For
example, in Tidd, the local zoning board granted and the trial court affirmed
dimensional variances concerning the required distance of horse corrals or pastures
from lot borderlines. 118 A.3d at 2. Those tribunals found that the existence of a
mature tree line, removal of which would entail not only financial but also
environmental detriment, and the presence of an extensive utility easement were
features of the property sufficient to create the requisite hardship. Id. at 10-12.
15
By contrast, in Dunn, the applicant sought to demolish an existing
detached single residence on a property and replace it with three lots each having a
detached single residence. 143 A.3d at 495. Over objections by neighbors, the local
zoning board granted the applicant’s requested variances from local zoning code
provisions on minimum lot width and density of dwelling units and, after taking no
new evidence, the trial court affirmed. Id. at 496-97. This Court reversed,
concluding that the applicant only needed the variances to subdivide the property
and build additional homes on it and therefore the applicant “is creating the alleged
hardship it seeks to remedy” in an “effort to maximize profitability.” Id. at 505.
Moreover, because no variance would be needed to make reasonable use of the
property with one detached single residence on it (like that which already existed on
the property), the requested variances did not constitute the minimum remedies that
would afford relief. Id.
Instead, this Court noted that based on the evidence presented, the
variance applicant’s requested variance relief and plan for the property was “an
effort to maximize profitability” and that “[t]his is not sufficient to constitute
unnecessary hardship.” Dunn, 143 A.3d at 505 (citing Tri-County Landfill, 83 A.3d
at 520, and Cardamone v. Whitpain Twp. Zoning Hearing Bd., 771 A.2d 103 (Pa.
Cmwlth. 2001)). Moreover, the Court observed in Dunn that “where no hardship is
shown, or where the asserted hardship amounts to a landowner’s mere desire to
increase profitability, the unnecessary hardship criterion required to obtain a
variance is not satisfied even under the relaxed standard set forth by the Supreme
Court in Hertzberg.” Id. at 506 (collecting cases).
In Pequea Township v. Zoning Hearing Board of Pequea Township,
180 A.3d 500, 509 (Pa. Cmwlth. 2018), the variance applicant had been advised by
16
a township zoning officer that a permit would not be needed and had proceeded to
incur expenses associated with the project before being cited with a violation, after
which the applicant sought a variance. Id. at 502-03. The local zoning board granted
the requested variance and the trial court affirmed. Id. at 503-04. This Court
reversed, finding on the facts that the applicant’s reliance on the advice of a zoning
officer that a permit would not be needed failed to establish sufficient financial
hardship based on costs already incurred in starting the project without a permit or
variance. Id. at 509. In doing so, this Court stated that the evidence failed to show
that the alleged causes of hardship were inherent in the property rather than its
owner. Id. at 509.
Moreover, analyzing cases, including Hertzberg, this Court noted in
Pequea that sufficient financial hardship to warrant a variance may be found where
projected or incurred costs to bring a property into conformance with the code at
issue would be unduly or prohibitively high. Id. at 508-09. However, where those
specific circumstances are not at issue and costs are projected or incurred to construct
or modify a property in a nonconforming manner, judicial lenience will not be
forthcoming and a local zoning board’s grant of a variance may be reversed. Id.
As Dunn illustrates, where a property can be reasonably used without
variances and variances are sought solely to enhance or maximize profitability, even
the relaxed standards of Hertzberg will not be met. Dunn, 143 A.3d at 506
(collecting cases). Where 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. As this Court has stated, a variance “is appropriate only where the
property, not the person, is subject to hardship.” Pequea Township, 180 A.3d at 509
17
(quoting Yeager v. Zoning Hearing Bd. of Allentown, 779 A.2d 595, 598 (Pa.
Cmwlth. 2001)) (emphasis in original). And given the standard, failure to satisfy the
criteria of Hertzberg constitutes a basis for reversal. See, e.g., Soc’y Hill Civic Ass’n
v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1189 (Pa. Cmwlth. 2012).
Here, the essence of Duncan’s argument is that the nature of the
Property, particularly its shape and orientation in the streetscape, is such that the
project must be implemented as proposed, including the requested dimensional
variances. Duncan contends that five townhouses are necessary to outweigh the
purchase price and the costs associated with demolishing the existing detached
single residence and constructing the new townhouses. R.R. at 161a-62a;
Appellant’s Br. at 12. To fit five townhouses on the Property, the requested
dimensional variances are therefore necessary. Appellant’s Br. at 12. Duncan avers
that the trial court, in focusing on Neighbors’ contention that the Property can be
physically redeveloped without variances, erroneously ignored the Board’s
credibility and factual determinations as to the financial feasibility of the project and
substituted its own judgment. Id. at 13-18.
However, even assuming that Stookey’s testimony is credible and
his financial analysis is completely accurate, and viewing the evidence in a light
favorable to Duncan, who prevailed before the Board, the record as it stands is
insufficient to support the Board’s conclusion that Duncan satisfied the standards to
support the requested variances. Duncan’s evidentiary presentation to the Board,
combined with Stookey’s testimony, does speak in part to the reality of the Property
and its orientation within the local streetscape. For example, Stookey explained that
the angle of the Property’s border on Eden Way led Duncan to orient the proposed
townhouses in a staggered manner requiring the requested side setback variances.
18
R.R. at 52a & 151a-54a. However, Duncan did not present any testimony indicating
that due to the Property’s irregular shape, “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.” Code § 922.09.E(2). Rather, the gist of Duncan’s
argument in favor of the requested variances is purely economic in nature, as
evidenced by Stookey’s financial exhibit projecting that constructing just four
townhouses as opposed to the proposed five townhouses would lead to a net loss on
the overall project, rendering it unfeasible from a profitability standpoint and serving
as the basis for Duncan’s assertion that without the variances, unreasonable
economic hardship will ensue. Id. at 139a & 161a-62a. The focus of this analysis
therefore rests on whether unique circumstances or conditions caused an
unnecessary economic hardship to Duncan’s ability to make productive use of the
Property. See Code § 922.09.E(1).
Notably, Duncan’s evidence, taken as credible and accurate, amounts
to conclusory figures in support of its quest for profitability as measured by the
purchase price it has agreed to pay for the property. The documentation at issue is
only two pages, consisting of Stookey’s own unsupported calculations for
completing the project with only four townhouses. R.R. at 139a-40a. Under “hard
costs,” the “acquisition” or purchase price from the current owners is listed as
$103,750 per unit, for a total purchase price of $415,000. Id. Duncan admits in its
brief that the alleged purchase price of $415,000, cited in the record and purportedly
taken from its agreement with the current owner, was contingent on the zoning
approval at issue here. Duncan’s Br. at 3; see also R.R. at 139a-40a. Thus, by
definition, the purported purchase price represents the value of the Property only to
19
Duncan, and only if it can be developed as Duncan proposes. If the variances are
ultimately denied, Duncan can cancel the agreement of sale because it has already
acknowledged that the sale is conditioned upon zoning approval. R.R. at 146a; see
also Duncan’s Br. at 3.
Viewing Duncan’s evidence in a favorable light and acknowledging
that the Board found Stookey’s testimony credible, the record is insufficient to
support Duncan’s assertion that without the requested variances, it will sustain
unreasonable economic hardship that is due to the Property itself and not self-
inflicted. Code §§ 922.09.E(1), (3); see also Pequea, 180 A.3d at 509; Dunn, 143
A.3d at 503, 505; Tidd, 118 A.3d at 13. The record does not establish that there is a
hardship of the Property. Rather, Duncan’s proposal presents a hardship solely of
and created by Duncan. To otherwise allow Duncan’s quest for profitability to fulfill
the hardship requirement would mean that any variance applicant could agree to a
purchase a property at a higher cost than the actual zoning would warrant and then
receive a variance for its proposal that is only necessary to overcome the self-created
economic hardship. Hardship is not established simply because an applicant has
purchased a property for a certain price in anticipation of obtaining a variance.
Bernotas, 68 A.3d at 1050. Duncan does not dispute that the Property can be
developed with fewer than the five townhouses it proposes and without the requested
variances. R.R. at 161a-62a (four townhouses are possible but “feasibly it does not
make financial sense to do just four on this parcel”). He does not present any
evidence that the nature of the Property precludes development in accordance with
the Code, only that he needs more than the Code will allow to make his specific
project profitable given the price that he has agreed to pay for the Property. Id.Accordingly, the legal standards for dimensional variances are not met and the grant
20
of variances by the Board must be reversed as a matter of law. Code § 922.09.E; see
also Hertzberg, 721 A.2d at 46-47; Dunn, 143 A.3d at 500.
IV. Conclusion
In light of the foregoing, the trial court is therefore affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lawrenceville Stakeholders, :
Mary Coleman, Jill Joyce, :
Bill Joyce and Victor Capone :
:
v. :
:
The City of Pittsburgh Zoning :
Board of Adjustment :
:
v. :
:
City of Pittsburgh :
: No. 779 C.D. 2020
Appeal of: Duncan Ventures, LLC :
ORDER
AND NOW, this 5th day of March, 2021, the Order of the Court of
Common Pleas of Allegheny County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge