The opinion of the court was delivered by: Judge Smith-ribner
Argued: February 23, 2009
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Township of Northampton (Township) appeals from the order of the Court of Common Pleas of Bucks County affirming the decision of the Zoning Hearing Board of Northampton Township (ZHB)that granted relief to the Dreher Group (Applicant)in the form of a variance from off-street parking requirements of Section 140-49 of the Township Zoning Code. The Township argues that the ZHB abused its discretion and/or committed an error of law by granting Applicant a variance without presenting any evidence of hardship as required under Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), 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. It also argues that prior to granting the variance the ZHB should have required Applicant to seek a conditional reduction of up to 25 percent in the number of required parking spaces from the Board of Supervisors pursuant to Section 140-49(C) of the Zoning Code.
Applicant filed its application with the ZHB on July 7, 2006 seeking a dimensional variance from off-street parking requirements in connection with its plans to construct a Rite Aid Retail Pharmacy (Rite Aid) on 5.25 acres located in the Township at 287 Holland Road (Property). Applicant plans to lease the Property from its owners to construct and operate the Rite Aid. The Property is situated in the Township's C-2 General Commercial/ Office Zoning District where the proposed Rite Aid is a permitted use. Section 140-49 of the Zoning Code requires one parking space for every 100 square feet of floor area for properties qualifying as a "retail use." The Rite Aid will have total gross floor area of 11,153 square feet and will require 112 off-street parking spaces to comply.
Applicant offered testimony that 67 parking spaces were sufficient to meet the needs of the Rite Aid during its busiest times. Mark Heeb (Heeb), a landscape architect, testified for Applicant that based upon his experience with similar retail store pharmacies only 50 - 70 parking spaces are needed during the periods of heaviest use and that the smaller number of spaces would reduce storm water runoff on the Property and increase green space, which would improve the health and welfare of the community. He admitted that the parking specifications were based on Rite Aid's prototype for a retail pharmacy and not on any existing features of the Property. The square footage of the building could not be reduced to allow for more parking because the building size was deemed necessary to provide the services that the community demands. Heeb opined that the Zoning Code was "pretty heavy with parking" and the requested variance could "set the standard [for a] common sense approach to parking.." Notes of Testimony (N.T.) at 71, Reproduced Record (R.R.) at 87a. Applicant also presented the testimony of its traffic engineer, Frank Montgomery, who stated that 67 spaces would be more than sufficient based on his review of over 30 Rite Aid sites.
The ZHB granted the requested relief based on the standard set forth in Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), for analyzing hardship in dimensional variance cases. This standard allows the ZHB to 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." Id. at 264, 721 A.2d at 50. The ZHB rejected the argument that Applicant should have first sought a 25 percent reduction in the required parking spaces because it would have reduced the number to about84 and Applicant only needed 67. It found in part:
21. Additional parking spaces could be placed on the left side of the Property but only with a major modification and economic impact on the Applicant.
22. Applicant's traffic engineer testified that he reviewed over 30 pharmacy sites. He concluded that larger pharmacies than the proposed Rite Aid store only need 45 to 50 parking spaces to accommodate the heaviest use of the stores.
23. The placement of additional spaces on the left side of the Property would reduce green space and limit the flow of traffic on and through the Property.
24. Rite Aid requires stores of the size and type proposed for the Property to have 50 to 60 spaces to accommodate the heaviest use of the store.
25. Additional parking spaces would not be used and would needlessly increase the impervious surface coverage on the Property.
The trial court agreed that Applicant was entitled to a variance under Hertzberg, noting the unrebutted testimony that Rite Aid would need fewer than 67 parking spaces to accommodate its heaviest use and the ZHB's finding that more parking spaces could be placed on the left side of the Property but only with major modification and economic impact on Applicant. The trial court also recognized that the additional spaces would cause an increase in impervious surface coverage on the Property. Applicant did not need to request a conditional reduction in the required parking spaces because if granted it would merely produce 83 spaces and Rite Aid needed fewer than 67. The trial court thus affirmed the ZHB's order.*fn1
The Township argues that the ZHB abused its discretion by granting the variance to Applicant when it offered no evidence of hardship, or even alleged hardship. Instead, Applicant stated only that it did not require 112 parking spaces and presented testimony that 67 spaces were more than sufficient. Under the ...