Wagner v. City of Erie Zoning Hearing Board

PELLEGRINI, Judge,

dissenting.

I respectfully dissent because Community Shelter Services Inc. failed to establish then-need for a variance because they neither established that they could not use the prop*800erty in accordance with the zoning ordinance nor that it was the minimal variance needed to make the building useful.

Community Shelter Services, Inc., a private, non-profit corporation, has an option to purchase property located at 202 West 9th Street in Erie, Pennsylvania, as a facility for low-income and homeless persons.1 To house those individuals, it desires to convert the building on the property previously used as a college dormitory, although built as a motel, to a 50-unit single-room occupancy apartment. The property is located in a T-l “Transitional Use” zoning district. Because in a T-l zoning district each dwelling unit must have at least 1,500 square feet of lot area or a total of 75,000 square feet, and one parking space per unit or 50 spaces, Community Shelter sought a variance from the Board from the City of Erie Zoning Ordinance (Zoning Ordinance)2 lot area and parking requirements. This variance was contested by neighboring property owners Richard Wagner and Erie Business Center. Because of the cost of renovating the building for a 15-unit apartment, the Board approved the variance but with the conditions that only one resident be permitted per unit and that a maximum of 32 residents be permitted to utilize off-street parking. Based on that testimony, both the trial court and the majority hold that Community Shelter has established the right to a variance to have 50 “apartments” when the ordinance only provides that “15 units” are permitted under the ordinance.

A variance requires that the property owner show that there are unnecessary hardships unique to the land that prevent development of the land in accordance with zoning restrictions, and that the proposed variance will not be adverse to the health, welfare and safety of the community. Carman v. Zoning Board of Adjustment of the City of Philadelphia, 162 Pa.Cmwlth. 80, 638 A.2d 365 (1994); Section 910.2 of the Pennsylvania Municipalities Planning Code.3 In order to establish *801that an unnecessary hardship exists, Community Shelter must prove that either (1) the physical characteristics of the property are such that it could not be used in any case for any purpose permitted in that zoning district or that it could only be used for a permitted purpose only at prohibitive expense, or (2) the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the zoning ordinance. Laurento v. Zoning Hearing Board, 162 Pa.Cmwlth. 226, 638 A.2d 437, 439 (1994). See also Isaacs v. Wilkes-Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578, 612 A.2d 559, 560 (1992). I would disagree that Community Shelter met either of those requirements because it has not shown that the property cannot be used in accordance with the ordinance nor that the variance granted was the minimum one needed.

While Community Shelter has advanced a case for a “50-unit apartment building”, its request for a variance is not based upon that use. A multiple-family dwelling is defined by the Ordinance as “a building or portion thereof, designed for or occupied by three (3) or more families living independently of each other.” A dwelling is defined as “any building or portion thereof which is designed for or used for residential purposes. The word ‘dwelling’ shall not include hotels, motels or other structures used for transient residence.” A family includes “a single person occupying a dwelling unit and maintaining a household.”4 The use of 50 single rooms, each with a bed, bathroom and microwave, with attendant supervisory services and common kitchens, is not a 50-unit apartment with 50 separate households but something else. The trial court expressed a similar view when it stated in its opinion that “the buflding and property can only be used for a family dwelling at a prohibitive expense.... However, this is irrelevant in light of the fact that 50 units are not going to be rented to families, but rather, one resident per room for which the building is already in compliance with.”5

Because the proposed use as the trial court found is not for a 50-unit apartment, it is axiomatic that Community Shelter has failed to establish that it needs a variance to be able to use the property for that use. At the core of any analysis on whether to grant a variance is the requested use because the use determines the type and need for a variance. Even though we suspect that any needed variance will either be the same as the one requested or one that is less than the one presently before us, and Community Shelter has presented a strong case for the use it intends to occupy the building, it has not presented a case for the use it applied for— that of a 50-unit apartment.

Even if the use is for 50 apartment units, I disagree that they , have established a right to have a density of use that is over 200% more than the Zoning Ordinance allows. As the majority points out, although unnecessary hardship usually relates to physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself, where the use of property for any purpose is possible only through extensive reconstruction or demolition of the building, it has been held sufficient to establish an unnecessary hardship. However, just because the building cannot be used for its original intended use does not give the owner the right to get the maximum use out of the property, but only the use necessary that it not be rendered valueless.

Section 912(5) of the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. *802§ 10912(5), requires the Board to make a finding:

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 § 912(5), 53 P.S. § 10912(5).

While Community Shelter established that the cost of bringing the building in compliance with safety codes and renovation costs would be exorbitant to convert it to a 15 unit apartment, the Board made no finding as required by the MPC that was the minimum variance necessary to productively use the property. Accordingly, I would also reverse for that reason.

McGINLEY and KELLEY, JJ., join in this dissent.

.Erie Business Center contends that Community Shelter's drug and alcohol policy would result in residents being turned away from the shelter and would pose a threat to the neighboring community. In response, the majority seems to suggest that you can never consider who is going to occupy the premises in determining if a variance is to be granted and, as a general principle, I agree. However, when you do not have tenants selecting where they are going to live that occurs when a "normal” apartment building is "rented up” but instead by an owner who rents only to one group as a social service provider, I believe that difference can be taken into consideration when granting a variance. For example, if an owner applied for a similar variance for a similar sized facility limited to recently released child molesters next door to an elementary school, unlike the majority, I would hold that could reasonably be taken into consideration on whether to grant a similar variance as being detrimental to the health, welfare and safety of the community.

Here, Community Shelter’s acknowledged that many prospective residents may be drug and/or alcohol dependent persons, criminals on probation, or mentally-ill persons, but the evidence shows that the shelter would maintain 24-hour supervisory personnel, has rigorous screening procedures, rules and regulations, and residents who violate Community Shelter’s policy of leading a drug and alcohol-free life would be evicted from the shelter. Based on those facts, the Board did not abuse its discretion in finding that the proposed use would not be detrimental to the health, welfare and safety of the community.

. Erie, Pennsylvania Zoning Ordinance No. 40-1968 (1994).

. Section 910.2 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act. of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2, has established that the Board may grant a variance due to unnecessary hardship when all of the following findings have been made: (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 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 of 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 the property is located, nor substantially or permanently impair the appropriate use of development of adjacent property, nor he 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 *801possible of the regulation at issue. 53 P.S. § 10910.2.

. Erie, Pennsylvania Zoning Ordinance No. 40-1968, Article 6 (1994).