Argued: December 8, 2014.
Appealed from No. 2013 CV 06971-LU. Common Pleas Court of the County of Dauphin. Judge Lewis.
John W. Purcell, Jr., Harrisburg, for appellant.
Jennifer A. Nachamkin, Harrisburg, for appellee.
BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE McCULLOUGH.
PATRICIA A. McCULLOUGH, Judge
Riverfront Development Group, LLC (Applicant) appeals from the March 13, 2014 order of the Dauphin County Court of Common Pleas (trial court), affirming the decision of the City of Harrisburg Zoning Hearing Board (Board) that denied Applicant's variance and special exception application.
Applicant filed an application for a special exception and a variance from the City of Harrisburg Zoning Code (Zoning Code) section 7-309.16, which the Board interpreted as providing a restriction of a maximum of two units per lot, in order to erect two, two-unit rental apartment buildings at 1308 Green Street, Harrisburg, Pennsylvania (Property) and, in conjunction therewith, to waive portions of the setback and accessory parking requirements. (Board's Finding of Fact No. 9; Reproduced Record (R.R.) at 1-5, 54-57, 96.) The Property
is an approximately 38-foot by 79-foot vacant lot located in Residential Limited Zone B (RLB), which is regulated by Zoning Code section 7-309.16. Applicant will provide no on-site accessory parking. To fit the apartment buildings onto the lot, Applicant seeks partial waivers of the side-yard and rear-yard setback requirements. Applicant also submitted a lease dated February 19, 2013, under which the owner of a parking lot on the next block agreed to provide four parking spaces for one year to the inhabitants of the apartment units on the Property. (Board's Findings of Fact Nos. 4, 7-8, 10.)
After reviewing Applicant's application, the Harrisburg Planning Commission unanimously voted to recommend that the Board approve the application because " [t]he request will infill an existing vacant lot and is generally in keeping with the characteristics and design of the existing neighborhood." (R.R. at 53.) The Planning Commission recommended that the application be approved with the condition that the Harrisburg Architectural Review Board and the Harrisburg City Council (City Council) approve the proposed new construction. (R.R. at 53.)
The Board held a hearing on May 20, 2013, and the Board accepted into evidence Applicant's variance and special exception application, an aerial photograph of the Property, the deed to the Property, the building plan, the lease for the parking spaces, and photographs of the Property and the neighboring properties. However, the Board noted a deficiency in the public notice for the hearing, specifically, that the publication and posting of Applicant's application advertised a hearing on a special exception only and did not mention variances relating to the construction of four units on a lot zoned for two units and off-site parking. The Board also suggested that Applicant consider subdividing the Property in order to avoid any need for zoning relief. Accordingly, the Board granted Applicant's request for a continuance. (R.R. at 64-66, 68-70.)
At the July 5, 2013 hearing, Applicant testified that he " read the [Zoning Code] and the [Zoning Code] does not stop me from building two buildings on one lot."  (R.R. at 81.) He also testified that the Board's suggestion to subdivide the Property would create a bigger hardship because it would be more difficult for him to meet the setback requirements. (R.R. at 89.) Applicant acknowledged that there is always the option to have fewer units on the Property but added that he chose to have four units because he thought that his development plan " fit in the neighborhood better." (R.R. at 90.) Applicant further acknowledged that the design plans for the apartment buildings do not include outside entrances for each unit in accordance with the Zoning Code, but he stated that an outside entrance for each unit could easily be added. (R.R. at 91.)
David Koppenheffer (Koppenheffer), a neighbor, testified that he opposes the entire development because he is concerned that property values will be diminished. He stated that constructing apartments constitutes a completely different use of the neighborhood. However, Koppenheffer acknowledged that the lot is currently vacant and that if the City of Harrisburg deems the development legal, there is
nothing that he can do about it. At the conclusion of the hearing, the Board unanimously voted to disapprove the variance request. (R.R. at 87-88, 93.)
In its written decision and order issued on July 15, 2013, the Board found that there are no unique physical circumstances or conditions of the Property that create an unnecessary hardship and that Applicant presented no evidence that the Property cannot be used in conformity with the Zoning Code. (Board's Findings of Fact Nos. 13-14.) The Board noted that the lot is zoned for a maximum of two units and stated that Applicant needs zoning relief that includes the following:
(1) a variance for use, for a four-dwelling unit rather than the permitted two units; (2) a variance to permit accessory parking on a non-abutting lot ([Zoning Code] § 7-319.1); (3) special exceptions for partial side and rear-yard setback reductions; and (4) a special exception or a variance from the requirement that " two-family dwellings require separate outdoor or vestibule entrance on the ground floor, front and rear, for each family" ([Zoning Code] § 7-309.16(a)(1) incorporating [Zoning Code] § 7-309.14(a)(1)).
Board's decision at 2-3.) The Board further noted that Applicant's application for relief fails to request a variance or special exception from the separate outdoor entrance requirement. The Board stated that the application also fails to address the height requirement found in Zoning Code section 7-309.16(c)(1).
Citing Zoning Code sections 7-309.1, 7-309.2, and 7-309.3, the Board stated that
it disagreed with Applicant's interpretation of the Zoning Code that " the restriction to 'one or two-family' dwellings means that [Applicant] can erect as many one or two-family dwellings on a lot as he wants to." (Board's decision at 4.) The Board determined that Applicant's interpretation of the Zoning Code would " eliminate the idea of single-family-per-lot-neighborhoods, or two-family-per-lot-neighborhoods by allowing a developer to increase the number of structures on the lot, regardless of the zoning limitations" and stated that this interpretation " flies in the face of the clear words, as well as the intent of the Code." (Board's decision at 4.) Thus, the Board denied the application on the ground that Applicant failed to prove entitlement to a variance to erect four dwelling units on the Property zoned for two dwelling units; the Board concluded that the parking, dimensional, or design issues need not be reached. The Board also advised Applicant that he might seek subdivision approval of the Property from City Council. Applicant appealed to the trial court.
By memorandum and order dated March 13, 2014, the trial court, citing Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 57-58 (Pa. Cmwlth. 1999), and giving the Board's interpretation of its own Zoning Code great weight and deference, determined that the Board's interpretation of its Zoning Code as allowing only one dwelling on the lot in question is reasonable. The trial court concluded that Applicant's interpretation of the Zoning Code, that as many one- or two-family dwellings as feasible can be built on a lot, is contrary to the Zoning Code's wording and intent. Thus, the trial court affirmed the Board's decision.
On appeal to this Court, Applicant argues that: (1) the Board abused its discretion in creating a prohibition of more than one dwelling per lot that is not contained in the Zoning Code; and (2) Applicant's side-yard setback special exception should be deemed approved.
Whether the Board Arbitrarily and Improperly Created a Rule Not Contained in the Zoning Code
Applicant first argues that the Board abused its discretion in interpreting the Zoning Code contrary to its plain meaning. " [I]t is the governing body of the municipality which has the power to enact laws to regulate land use pursuant to the police power." Hill v. Maxatawny Township Zoning Hearing Board, 142 Pa.Cmwlth. 539, 597 ...