Amerco Real Estate Co. v. Center Twp. Bd. of Supers.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amerco Real Estate Company, :
Appellant :
:
v. : No. 913 C.D. 2022
: Submitted: April 6, 2023
Center Township Board of Supervisors :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE DUMAS FILED: September 11, 2023

Amerco Real Estate Company (Amerco) appeals from an order of the
Court of Common Pleas of Beaver County (trial court), dated August 10, 2022,
affirming a decision and order of the Center Township Board of Supervisors (the
Board), which rejected Amerco’s application for a curative amendment for site-
specific relief. After careful review, we affirm.
I. BACKGROUND1
In 2018, Amerco, a real estate subsidiary of U-Haul, purchased the
subject property located at 100 Beaver Mall Boulevard, Monaca, Pennsylvania,
15061. The subject property is located in a C-2 Commercial District as defined by
the Center Township Zoning Ordinance (“the Ordinance”). See Center Twp., Beaver
Cnty., Pa., Zoning Ordinance § 1100 (2018). The Ordinance requires conditional
use approval for the operation of self-storage, and Amerco made its application.

1
Unless otherwise specified, we base the recitation of facts on the Board’s decisions of
October 2, 2018, and December 30, 2021. See Bd. Dec., 10/2/18, at 1-3 (unpaginated); Bd. Dec.,
12/30/21, at 1-3 (unpaginated).
Amerco proposed outfitting the on-site building with multiple storage units available
for rent by the general public; staging of U-Haul vehicles and trailers in the parking
area adjacent to the building, which would be available for rent; and a loading area
located at the side of the building.
In October 2018, the Board approved the conditional use under Article
XI, Section 1101(B)(1)(g) of the Ordinance, to operate a “mini-warehouse or self-
storage building,” subject to Section 1703.35, which “mandates that no storage take
place outside of a completely enclosed building.” See Bd. Dec., 12/30/21, at 1
(unpaginated). The general procedure of operations was that customers could drive
up to and park at the loading area and could then enter the building to either retrieve
or deposit items in the storage units.
In July 2021, Amerco submitted a second application for conditional
use, seeking approval for drive-up self-storage on the property. See Trial Ct. Op.,
8/10/22, at 2. Amerco later withdrew the application and instead requested that the
Board amend its resolution to include drive-up self-storage on the Property. See id.
The Board voted not to amend the original conditional use approval and
advised Amerco to submit a new conditional use application through the Center
Township Planning Commission. Instead of doing so, Amerco’s counsel submitted
a challenge to the substantive validity of the Ordinance, arguing that the Ordinance
does not permit “drive-up storage” in the C-2 Commercial District, and provided a
suggested zoning ordinance amendment to permit drive-up storage on the property.2
The Board held a public hearing on November 15, 2021. Amerco
presented testimony and submitted graphic materials in support of its position.

2
The proposed amendment stated, “Drive-up storage is a permitted use only to Amerco’s
Beaver Valley Mall property, in a C-2 COMMERCIAL DISTRICT, and not to any other property
or location in Center Township.” See Substantive Validity Challenge, 9/30/21, at Ex. C.

2
James Milligan, an owner’s representative of Amerco, testified on Amerco’s behalf.
See Notes of Testimony (N.T.), 11/15/21, at 4-13. Milligan stated that Amerco
wishes to place multiple storage units in the parking lot area of the subject property
so that customers can access them without entering the main building. See id.
Following the hearing, the Board voted to reject the validity of the
challenge and Amerco appealed to the trial court. The trial court did not take
additional evidence. On August 10, 2022, following the submission of briefs and
oral argument, the trial court issued an order finding in favor of the Board and
denying Amerco’s appeal. Amerco timely appealed to this Court.
II. ISSUES
Amerco raises a single issue on appeal: namely that, because the trial
court’s order was not supported by facts of record, the court had committed an error
of law and abused its discretion. See Amerco’s Br. at 4.
III. DISCUSSION3
Amerco contends that the trial court erred in denying its appeal because
drive-up self-storage is not a permitted use in any Center Township zoning district.
See Amerco’s Br. at 6-7. As a result, it avers that it should be allowed the remedy
of reasonable site-specific relief. See id. Amerco argues that the trial court’s order
does not address reasonable site-specific relief and ignores that the Board did not
justify its denial of site-specific relief or provide any analysis of whether the
proposed amendment would affect the promotion of health, safety, or welfare. See
id. at 7.

3
The parties presented no additional evidence to the trial court. Therefore, our review is
limited to determining whether the Board committed an abuse of discretion or an error of law.
Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811 n.1 (Pa. Cmwlth. 2005).

3
 In response, the Board argues that the trial court properly denied the
appeal and that the Board properly denied the application for a curative amendment.
See Bd.’s Br. at 8-10. The Board argues that the Ordinance does not prohibit or
restrict drive-up storage, as it is permitted as a conditional use under Article XI,
Section 1101 (B)(1)(g). See id. Rather, the Board contends that Amerco knew drive-
up storage was a conditional use and improperly filed a curative amendment in an
attempt to avoid applying for a conditional use approval and meeting the standards
in the Ordinance. See id. at 10-12.
A zoning ordinance is presumed valid, and a challenger has a heavy
burden to establish its invalidity; generally, this is done on “substantive due process
grounds, i.e., whether an ordinance is substantially related to a legitimate interest.”
Protect PT v. Penn Twp. Zoning Hearing Bd., 220 A.3d 1174, 1183 (Pa. Cmwlth.
2019) (citation omitted). In cases of exclusionary zoning, the challenger “bears the
burden of showing that the zoning ordinance completely or effectively excludes a
legitimate use.” In re Charlestown Outdoor, LLC, 280 A.3d 948, 958 (Pa. 2022). A
zoning ordinance that excludes a legitimate use may be unconstitutionally
exclusionary. Id.
A de jure exclusion occurs when “the ordinance on its face totally
excludes a use.”4 Charlestown Outdoor, LLC, 280 A.3d at 958. The fact that an
ordinance does not contain a specific provision addressing a proposed use does not,
without more, establish a basis to find an unconstitutional exclusion of that use.
Kratzer v. Bd. of Supervisors of Fermanagh Twp., Juniata Cnty., 611 A.2d 809, 812

4
By contrast, “[i]n a de facto exclusion case, the challenger alleges that an ordinance
appears to permit a use, but under such conditions that the use cannot in fact be accomplished.”
Twp. of Exeter v. Zoning Hearing Bd. of Exeter Twp., 962 A.2d 653, 659 (Pa. 2009). A de facto
exclusion is not at issue here.

4
(Pa. Cmwlth. 1992). “When a proposed use can be considered within another zoning
classification or, where a zoning ordinance is broad enough to encompass the
proposed use, there is no de jure exclusion.” Id. If a challenger meets the burden of
proving that the ordinance is exclusionary, “then the burden shifts to the
municipality to prove that the exclusion bears a substantial relationship to the public
health, safety, morality, or welfare.”5 Charlestown Outdoor, LLC, 280 A.3d at 958.
The purpose of a C-2 Commercial District is to “provide for retail and
service facilities which serve the needs of the general community . . . .” Ordinance,
§ 1100. In a C-2 commercial district, a mini-warehouse or self-storage building is a
conditional use, subject to the requirements listed in Section 1703.35.6 See id.; see
also Ordinance, § 1703.35. While the Ordinance does not provide a definition of
“drive-up self-storage,” it defines “mini-warehouse: self-storage building” as “[a]
building or group of buildings in a controlled access and fenced compound that
contains various sizes of individualized, compartmentalized and controlled access
stalls and/or lockers leased by the general public for a specified period of time for
the dead storage of personal property.” Ordinance, § 201.

5
In cases where a landowner challenges, on substantive grounds, the validity of a zoning
ordinance, Section 916.1(c)(5) of the Pennsylvania Municipalities Planning Code (MPC), Act of
July 31, 1968, P.L. 805, as amended, added by the Act of December 12, 1988, P.L. 1329, 53 P.S.
§ 10916.1(c)(5), provides guidance for both the application and the considerations the Board
should undergo following the application. 53 P.S. § 10916.1(a)-(c). The landowner may submit
a curative amendment with his request for the Board to consider at a hearing. 53 P.S. §
10916.1(a)(1). Only if the Board determines that the challenge has validity must it consider
whether to accept the petitioner’s curative amendment, or whether another alternative amendment
may be appropriate. 53 P.S. § 10916.1(c).
6
Section 1703.35 discusses the various standards required for mini-warehouses or self-
storage buildings, including the distance between buildings, the size dimensions of the buildings
themselves, the width of the driveways on the site, opaque fencing requirements, and the need to
comply with various safety regulations. Ordinance, § 1703.35. In total, there are 25 requirements
enumerated by the Ordinance. See id.

5
 Instantly, the Board determined that the Ordinance permits self-storage
in the C-2 Commercial District, and that the Ordinance as written is “broad enough
to allow reasonable use of the property for self-service storage, albeit within an
enclosed structure.” Bd. Dec., 12/30/21, at 3. Thus, the Board concluded that the
use proposed by Amerco was not fundamentally different from what the Ordinance
allows and that, therefore, the Ordinance did not unduly restrict Amerco. See id.
The use proposed by Amerco is seven rows of storage units in which
customers could store their belongings. See N.T., 11/15/21, at 7-8, 11-12. The units
are individually alarmed and locked, and only the lessors have access by swipe card.
See N.T., 11/15/21, at 7-13. The sole difference between the current conditional use
and the proposed use is that the storage units would not be housed in an enclosed
building. See, e.g., N.T., 11/15/21, at 7-13. Both uses are substantially similar to
the language in the Ordinance, namely, “[a] building or group of buildings in a
controlled access and fenced compound that contains various sizes of individualized,
compartmentalized and controlled access stalls and/or lockers leased by the general
public for a specified period of time for the dead storage of personal property.”
Ordinance, § 201.
Indeed, Amerco’s argument does not attempt to delineate any
meaningful difference between the proposed use and the language of the Ordinance.
See Amerco’s Br. at 8-9. Rather, Amerco focuses entirely on the fact that the
Ordinance does not specifically provide for “drive-up self-storage.” See id. This
ignores case law that specifically states the Ordinance need not provide for every
conceivable use. Kratzer, 611 A.2d at 812.
Based on the above, we agree with the Board and the trial court that the
language of the Ordinance “is broad enough to encompass the proposed use” and

6
that there is no de jure exclusion. See id. Thus, because Amerco failed to meet the
burden of proving that the Ordinance is exclusionary, the burden did not shift to the
Board to prove that the exclusion bore a substantial relationship to the public health,
safety, morality, or welfare. See Charlestown Outdoor, LLC, 280 A.3d at 958; see
also Protect PT, 220 A.3d at 1183. Accordingly, the Board did not commit an error
of law or abuse its discretion in denying the challenge to the substantive validity of
the Ordinance. Taliaferro, 873 A.2d at 811 n.1.
IV. CONCLUSION
For the foregoing reasons, we affirm the order of the trial court denying the
appeal of Amerco.

LORI A. DUMAS, Judge

7
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amerco Real Estate Company, :
Appellant :
:
v. : No. 913 C.D. 2022
:
Center Township Board of Supervisors :

ORDER

AND NOW, this 11th day of September, 2023, the Court of Common Pleas of
Beaver County’s order entered August 10, 2022, is AFFIRMED.

LORI A. DUMAS, Judge