E. Dunbar and L. Dunbar v. ZHB of the City of Bethlehem
144 A.3d 219
| Pa. Commw. Ct. | 2016Background
- Property: 5,225 sq ft corner lot at 1037 Main St., Bethlehem (RT High Density Residential). Owner Tomino operated a longstanding nonconforming deli (use present since at least 1998 approval).
- Proposal: Tomino sought a special exception to change the nonconforming deli to a nonconforming restaurant and a dimensional variance to expand floor area from 540 sq ft to 1,080 sq ft (100% increase) to add seating, ADA restrooms, ramp, ventilation, and extended hours.
- Zoning Board (ZHB) hearings: ZHB found the deli falls under “restaurant” in the current ordinance, the existing space is inadequate, the expansion meets most ordinance requirements except the >50% expansion limit, and approved both the special exception and variance.
- Objectors (including Dunbar) raised concerns about neighborhood character, traffic, exhaust, parking, and failure to carry out promised upgrades; they offered no expert proof.
- Trial court affirmed the ZHB; appellants (Dunbar) appealed to Commonwealth Court, which likewise affirmed the ZHB’s grant of the special exception and dimensional variance.
Issues
| Issue | Plaintiff's Argument (Dunbar) | Defendant's Argument (Tomino/ZHB) | Held |
|---|---|---|---|
| Whether ZHB properly granted a special exception to change a nonconforming deli to a nonconforming restaurant under Article 1323.07 | Change will alter neighborhood character, is contrary to public interest, unnecessary; Tomino failed to meet article 1323.07 conditions | Change is consistent with ordinance purpose; property cannot reasonably be converted to a conforming use; plan meets objective ordinance criteria and safeguards (parking, safety, ADA) | Affirmed: ZHB findings supported by substantial evidence; Tomino met ordinance requirements; objectors offered only speculative harms, insufficient to defeat special exception |
| Whether ZHB properly granted a dimensional variance to expand nonconforming use >50% (from 540 to 1,080 sq ft) | No unnecessary hardship shown; expansion unnecessary; will harm neighborhood; use is not permitted | Physical constraints and inadequacy of existing structure create hardship; expansion is minimum necessary for reasonable use and business viability; not detrimental to public welfare | Affirmed: dimensional variance proper under dimensional-variance (lesser) standard and natural expansion doctrine; expansion deemed minimal and necessary |
| Whether proposed restaurant is a new use (requiring stricter review) or a continuation/natural expansion of the nonconforming deli | Proposed restaurant is a distinct, new use, not a continuation | Use is functionally the same (sale/consumption of food) and thus a natural expansion of the existing nonconforming use | Held: Court treated restaurant as a natural expansion of the deli (citing Limley and Pappas), not a new use, so stricter use-variance standard did not apply |
Key Cases Cited
- Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 831 A.2d 764 (Pa. Cmwlth. 2003) (special-exception burden and standards)
- Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980) (objector must show high probability of specific harm to defeat special exception)
- Ruddy v. Lower Southampton Township Zoning Hearing Board, 669 A.2d 1051 (Pa. Cmwlth. 1995) (burden shifts to objector after applicant meets ordinance requirements)
- Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998) (lesser proof required for dimensional variances than use variances)
- Pappas v. Zoning Board of Adjustment of the City of Philadelphia, 589 A.2d 675 (Pa. 1991) (natural expansion doctrine: take-out shop to eat-in restaurant as continuation)
- Limley v. Zoning Hearing Board, 625 A.2d 54 (Pa. 1993) (similar-use analysis: social club to public restaurant was natural expansion)
- Domeisen v. Zoning Hearing Board of O’Hara Township, 814 A.2d 851 (Pa. Cmwlth. 2003) (consider economic viability and minimum necessary expansion when assessing dimensional variance)
- Richland Township v. Prodex, Inc., 634 A.2d 756 (Pa. Cmwlth. 1993) (constitutional right to continue lawful nonconforming use)
- Pennridge Development Enterprises, Inc. v. Volovnik, 624 A.2d 674 (Pa. Cmwlth. 1993) (nonconforming use protection unless nuisance, abandonment, or eminent domain)