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Catholic Social Services Housing v. Zoning Hearing Board of

March 31, 2011


The opinion of the court was delivered by: Dan Pellegrini, Judge

Argued: March 8, 2011



Catholic Social Services Housing Corporation (CSS) appeals from an order of the Court of Common Pleas of Luzerne County (trial court) affirming the decision of the Zoning Hearing Board of Edwardsville Borough (Board) denying its application for a use variance. Because we find no error in the Board's decision, we affirm.

The facts of this case are not in dispute. The Diocese of Scranton (Diocese) owns property located at 207 Zerby Avenue in Edwardsville, Luzerne County. While the property is a single Lot, it is a "split lot" in that a portion of the property is located within the R-1 district of Edwardsville Borough and a portion is located in the R-3 district of Kingston Borough. St. Hedwig's Roman Catholic

Church, school, rectory, and convent buildings are currently situated on the property, but have not been operational for some time. On behalf of the Diocese, CSS proposed to demolish the church, add onto the school, and develop a 30-unit apartment building to house recent military veterans of the wars in Iraq and Afghanistan. Under this proposal, approximately 12 of the apartment units would be situated in the R-1 district of Edwardsville Borough. While multi-family dwellings are permitted in Kingston Borough, they are not permitted in an R-1 district in Edwardsville Borough either by permitted use or by special exception, thereby requiring CSS to apply to the Board for a use variance.

At a public hearing before the Board, CSS presented the testimony of only one witness, Stephen R. Nocilla (Mr. Nocilla), its executive director and housing director. Mr. Nocilla contacted an architectural firm, the Palumbo Group, to inspect the property and determine its potential use and how it could be converted. (R.R. at 13). According to Mr. Nocilla, CSS considered using the Church as a warehouse to store food and furniture or as community space, but these uses were not feasible. (R.R. at 14-15). It also considered converting the Church building to townhouses, but this was too cost prohibitive. (R.R. at 15).

Mr. Nocilla testified that CSS investigated the possibility of demolishing the building and selling the property, but this would also be too cost prohibitive. (R.R. at 16). He stated that because the Lot straddled two different boroughs with different zoning ordinances, this presented a significant use problem. (R.R. at 16- 17).

Given these obstacles, CSS decided to pursue the option of providing housing for veterans, which has been a focus of CSS for many years and a growing need within the community. (R.R. at 13). Mr. Nocilla stated that CSS' proposal was for a 30-unit apartment building to house honorably discharged veterans and their families with 7 units specifically designated for severely disabled veterans. (R.R. at 19). According to Mr. Nocilla, the residents would be referred to CSS by the Veterans Administration (VA) hospital. (R.R. at 19). Mr. Nocilla claimed the building would be strictly residential with no on-site services provided and residents would have to be independent. (R.R. at 21). CSS has a zero tolerance policy regarding drugs and alcohol and all residents would be required to submit to random drug screening as well as testing on an as-needed basis. (R.R. at 20). Mr.

Nocilla also testified that the proposed plan incorporated a 50-foot setback from the front of the property with a green area in front and green space between the building and its neighbors and the proposed parking lot behind the building, out of site. (R.R. at 18). On cross-examination, Mr. Nocilla admitted that CSS considered placing the entire apartment building in Kingston Borough where multi-family dwellings are permitted, but did not do so for aesthetic reasons. (R.R. at 23).

The Board unanimously denied CSS' application for a use variance because it failed to meet the requirements of Section 27-801(5)(D)*fn1 of the Borough's Zoning Ordinance (Ordinance). CSS appealed to the trial court, which affirmed, noting that the test for a use variance is not whether the owner's proposed use of the property is more desirable or even the best use, but whether the property may be used in a reasonable manner within the restrictive provisions of the ordinance. He stated that CSS did not meet that burden because Mr. Nocilla testified that it was possible to design the project so that all 30 apartment units fit within the portion of the property located in Kingston Borough, which permits multi-family dwellings, but that CSS did not utilize this design due to "aesthetic preferences." Given these facts, the trial court found the Board's denial of CSS' application for a use variance was supported by substantial evidence. CSS filed the instant appeal arguing that it was entitled to a use variance because it established that churches have very little value as far as reuse or repurposing, and the options demolishing the church and then selling the lot was cost prohibitive. *fn2

The party seeking a variance bears a heavy burden because the reasons for granting a variance must be substantial, serious and compelling. Valley View Civic Association v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). An applicant seeking a variance must demonstrate that unnecessary hardship will result if a variance is denied, and the proposed use will not be contrary to the public interest. Id.; Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 812 (Pa. Cmwlth. 2005). To establish unnecessary hardship an applicant must prove the following:

(1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance. The applicant must show the hardship is unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on the entire district. Mere ...

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