IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christine Lavelle and Gary Lavelle,     :
her husband,                            : No. 1303 C.D. 2015
                                        : Submitted: May 11, 2016
                         Appellants     :
                                        :
                 v.                     :
Borough of Dunmore Zoning Hearing       :
Board and Maria Wharton                 :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE WOJCIK                                     FILED: September 16, 2016



            Christine Lavelle and Gary Lavelle, her husband, (collectively,
Objectors) appeal the order of the Lackawanna County Court of Common Pleas
(trial court) denying their land use appeal of a decision of the Borough of Dunmore
(Borough) Zoning Hearing Board (Board) that granted the application of Maria
Wharton (Landowner), a neighboring landowner, to construct a two-story addition
to her residence on a concrete building pad and footer on her property. We affirm.
               Objectors are the owners of property located at 211 Oak Street in the
Borough of Dunmore, Lackawanna County. Landowner owns the property located
at 209 Oak Street, which is adjacent to the Objectors’ property. Both properties
are located in an R-1B (Single Family Medium Density Residential) zoning
district. Landowner’s property had originally consisted of a home with an attached
store built in 1907.1 Landowner demolished the one-story nonconforming store
structure in 1999, intending to construct a two-story garage in the same location.
As a result in 1999 she constructed a new concrete building pad and footer at the
site, which cost approximately $15,000.00. However, a number of personal and




       1
          Section 11.201 of the Borough’s Ordinance defines “structure,” in relevant part, as
“[a]nything constructed or erected, the use of which requires location on the ground or
attachment to something have a fixed location on the ground. Among other things, structures
include buildings, mobile homes, swimming pools, carports, walls, fences and billboards.” In
turn, Section 11.174 defines “nonconforming structure,” in pertinent part, as “[a] structure or part
of a structure manifestly not designed to comply with the applicable use or extent of use
provisions . . . where such structure lawfully existed prior to the enact of such ordinance or
amendment . . . .” Likewise, Section 107 of the Municipalities Planning Code (MPC), Act of
July 31, 1968, P.L. 805, as amended, 53 P.S. §10107, defines “nonconforming structure” as “a
structure or part of a structure manifestly not designed to comply with the applicable use or
extent of use provisions in a zoning ordinance . . . where such structure lawfully existed prior to
the enactment of such ordinance . . . .”

        In contrast, Section 11.175 of the Ordinance defines “nonconforming use,” in material
part, as “[a] use, whether of land or structure, which does not comply with the applicable use
provisions . . . or any amendment . . . where such use was lawfully in existence prior to the
enactment of such ordinance or amendment . . . .” Section 107 of the MPC also defines
“nonconforming use” as “a use, whether of land or of structure, which does not comply with the
applicable use provisions in a zoning ordinance . . . where such use was lawfully in existence
prior to the enactment of such ordinance . . . .”



                                                 2
financial circumstances prevented Landowner from constructing the garage at that
time. Reproduced Record (R.R.) at 63a.2
             In April 2014, Landowner filed an application with the Board to
construct a two-story addition to her existing home, consisting of a garage on the
first floor and two bedrooms and a bathroom on the second floor. It is undisputed
that this addition is a permitted use in an R-1B zoning district. Landowner sought
a variance relating to the side-yard setbacks because Section 4.111(e) of the
Borough’s Ordinance states that in any R-District, “an appurtenant use accessory
to an adjacent principal permitted use may be constructed on any vacant
nonconforming lot,” but “[n]o building shall be erected closer to an adjacent
principal building than ten (10) feet, nor shall any side yard be less than seven (7)
feet.” See also Article 3, Table 2 Development Standards for Residential Zones
setting a 10-foot minimum setback for one side yard in the R-1B District; a 25-foot
minimum setback for both side yards; and a 35-foot maximum building height.
             The Board conducted a public hearing in May 2014, during which
Landowner’s son, Thomas, testified as to his mother’s plans for the addition. He
stated that the proposed addition would only be four and a half feet from
Objectors’ property and only two feet, three inches from the property line. He
noted that the store that had existed on the property until 1999 was a single story
building and submitted a picture to the Board. He explained that the new concrete
pad and footer on which he and his mother currently use to park their vehicles was
constructed following the demolition of the store, and he submitted pictures of the

      2
        Objectors did not number the reproduced record in accordance with Pa. R.A.P. 2173,
which requires a lowercase “a” to follow the numeric number on the page. Instead, Objectors
used a format consisting of an uppercase “R,” followed by a lower case “a” and the page
number. For purposes of clarity, we will refer to the pages in the proper format.


                                            3
existing pad and footer. R.R. at 1a-15a, 43a-40a. He stated that the “concrete pad
was put right on the same foundation that’s there.” Id. at 8a.
               Christine Lavelle also testified at the hearing, alleging that there
would only be four feet, two inches between the two properties if the proposed
addition was constructed. She expressed concerns over safety and the proximity of
her home should a fire occur in the proposed addition, as well as concerns over
property values with such a close neighboring structure.                       To address these
concerns, Landowner’s son proposed to use fire-rated sheetrock on the addition
and agreed that he would not install any windows facing Objectors’ home. At the
conclusion of the hearing, the Board voted unanimously to grant Landowner the
requested variance. R.R. at 15a-31a.
               In June 2014, the Board issued a written decision in which it treated
Landowner’s application for a dimensional variance for the new, proposed
permitted use of an addition to the existing home as an application to continue the
prior nonconforming use on the property. Citing Sections 7.230(a),3 4.111(e), and




      3
          Section 7.230 of the Borough’s Ordinance states:

               a. A nonconforming use or structure shall not be changed into a
               use which is permitted in a less restrictive district than the district
               where the nonconforming use is first permitted.

               b. A nonconforming use may be changed into a conforming use.

               c. A nonconforming use which is not permitted in any district or
               which is permitted only as a special exception or a conditional use
               may only be changed into a conforming use.



                                                 4
8.210 of the Borough’s Ordinance,4 the Board evaluated the building of the garage
addition as a vertical expansion of the prior, nonconforming structure.



      4
          Section 8.210(a) sets forth the criteria necessary for the grant of a variance:

                The board shall hear requests for variances where it is alleged that
                the provisions of the zoning ordinance inflict unnecessary hardship
                upon the applicant . . . . The board may grant a variance, provided
                that all of the following findings are made where relevant in a
                given case:

                (1) That there are unique physical circumstances or conditions,
                including . . . exceptional topographical or other physical
                conditions peculiar to the particular property and that the
                unnecessary hardship is due to such conditions and not the
                circumstances or conditions generally created by the provisions of
                the zoning ordinance in the neighborhood or district in which the
                property is located.

                (2) That because of such physical circumstances or conditions,
                there is not possibility that the property can be developed in strict
                conformity with the provisions of the zoning ordinance and that the
                authorization of a variance is therefore necessary to enable the
                reasonable use of this property.

                (3) That such unnecessary hardship has not been created by the
                applicant.

                (4) That the variance, if authorized, will not alter the essential
                character of the neighborhood or district in which the property is
                located, nor substantially or permanently impair the appropriate
                use or development of adjacent property, nor be detrimental to the
                public welfare.

                (5) That the variance, if authorized, will represent the minimum
                variance that will afford relief and will represent the least
                modification possible of the regulation in issue.



                                                  5
               The Board found as fact that “Article 3 Table No. 2 provides for a
side yard setback of ten feet in the R-1B District and Section 4.111(e) noted a
varied standard for certain nonconforming lots of a lesser degree, as well as,
Section 4.310.[5]” Board 6/11/14 Decision at 4. The Board also found:
            Article 7 of the Ordinance provides for continuation of
            nonconforming uses ([Section] 7.100[6]) and termination
            of same ([Section] 7.300[7]). The Board finds the uses of
            the premises for the addition as a one family [use] legally
            exist on the premises. The addition is to be built on the
            footer and concrete pad, no new footers were testified as
            needed, and the new addition would not encroach into the
            setback any further than the existing footer and pad
            originally constructed for the addition. The proposed
            construction complies with [Section 7.230(b).8]

       5
          Section 4.310 relates to the regulation of side yards and Section 4.311 states, in relevant
part, that the side yard width may be varied under enumerated circumstances not relevant to the
instant matter.
        6
           Section 7.100 states, in relevant part, that “[a] use, building or structure lawfully in
existence prior to the adoption of this Ordinance, which does not comply with the applicable use
provisions of this Ordinance or any applicable amendment thereto may be continued except as
otherwise provided in this Article.”

       7
          Section 7.300 states, in pertinent part, that “[t]he discontinuance of a nonconforming
use for a period of five (5) years and/or the change of use to a . . . conforming use for any period
of time shall be considered an abandonment and such nonconforming use shall not thereafter be
revived.” See also Section 11.175a (“A legally existing nonconforming use shall be considered
to be abandoned when the use has been terminated . . . unless the operator of such a use provides
adequate evidence to demonstrate that there was only a temporary closing and there was a clear
intent to subsequently reopen the use.”).

       8
         Section 7.200 states that “[n]o existing building or premises devoted to a
nonconforming use shall be . . . reconstructed [or] substituted . . . except when changed to a
conforming use . . . .” As noted above, Section 7.230(b) states that “[a] nonconforming use may
be changed into a conforming use.” Moreover, Section 7.250 states, in pertinent part:

               A nonconforming use or structure may be expanded up to twenty-
               five (25%) percent of its floor area and/or lot area as it exists at the
               time of the adoption of this Ordinance . . . . [S]uch use shall not be
(Footnote continued on next page…)
                                                  6
Id. at 4-5.
              The Board further explained that “[f]rom the pictures offered at
hearing the neighborhood is comprised of structures that do not reflect the current
side yard setbacks for principle structures,” and that “[t]he existing homes . . .
illustrate a mature neighborhood and construction that occurred prior to the
adoption of the zoning ordinance.” Id. at 3.
              Additionally, the Board stated:

                     The [Board] found in part, the request of
              Landowner is governed by [In re Yocum, 141 A.2d 601
              (Pa. 1958)] and Nettleton [v. Zoning Hearing Board of
              Adjustment of the City of Pittsburgh, 828 A.2d 1033 (Pa.
              2003)]. Because both the prior one story structure and
              the existing concrete pad with footer, built at the time of
              the demolition on [Landowner’s] property constitute
              structures under the [Borough] Zoning Ordinance, and
              the Zoning Ordinance allows for the proposed two story
              vertical addition other than to limit building height to 35
              feet, the Board finds [Landowner] has a right to continue
              the vertical construction to the height of 35 feet for the
              proposed addition which will be built upon the existing
              footer and concrete pad.
Board 6/11/14 Decision at 3.9


(continued…)

              permitted to expand except in accordance with all of the building
              regulations herein. Such enlargement must conform to all other
              regulations of the District where it is situated. This provision may
              be used only once for each zone lot.
       9
         The Board also quoted our opinion in West Central Germantown Neighbors v. Zoning
Board of Adjustment of the City of Philadelphia, 827 A.2d 1283, 1287 (Pa. Cmwlth. 2003),
appeal denied, 844 A.2d 555 (Pa. 2004), outlining the requirements for the grant of a variance:

              To obtain relief in the nature of a variance as applied to a pre-
              existing non-conforming use, an applicant must establish four
(Footnote continued on next page…)
                                              7
               Based on the foregoing, the Board concluded:
               The approval for the relief requested stems from the
               evidence that the structure will continue to function
               within the uses legally permitted [] in the Ordinance.
               Further[, the] Board finds that there [] are sufficient
               grounds for allowing the continuation of the use and to
               the extent necessary expanding the use vertically within
               the boundaries of the footer and pad already constructed
               for the addition under Larsen [v. Zoning Board of
               Adjustment, 672 A.2d 286 (Pa. 1996)]. The Board finds
               there is no detrimental effect on property values in the
               area if the relief was granted. The [Board] also relies, in
               part, upon [Nettleton] in support of its position that
               [Landowner] is permitted to continue to build the two
               story addition as originally undertaken by [Landowner].
               The nonconforming use is to be allowed to continue in
               the vertical dimension so long as it does not violate the
               height restriction of 35 feet for the R-1B district as set
               forth in Article 3 Table No. [210] and Section 4.210.



(continued…)

                  factors: (1) that an unnecessary hardship exists which is not
                  created by the applicant and which is caused by unique physical
                  circumstances of the property for which the variance is sought; (2)
                  that a variance is needed to enable the party's reasonable use of the
                  property; (3) that the variance will not alter the essential character
                  of the district or neighborhood, or substantially or permanently
                  impair the use or development of the adjacent property such that it
                  is detrimental to the public's welfare; and (4) that the variance will
                  afford the least intrusive solution. Larsen v. Zoning Board of
                  Adjustment, [672 A.2d 286 (Pa. 1996)].
         10
            Objectors argue that the Board incorrectly applied the height restriction in Article 3
Table No. 3 rather than the height restriction applicable to the R-1B Zoning District in Article 3
Table 2. However, the Board’s reference to the former appears to be a typographical error in
light of its prior correct citation to the latter. Moreover, the applicable maximum building height
restrict under either table is 35 feet and it is not alleged that the proposed addition will violate
this restriction.



                                                 8
Board 6/11/14 Decision at 5.               Finally, the Board determined that Landowner
presented evidence supporting the grant of a variance in Section 8.210 of the
Ordinance which warranted approval of Landowner’s application to construct the
addition. Id. at 6. On appeal, in which Landowner intervened, the trial court
affirmed the Board’s decision without taking additional evidence, and Objectors
filed the instant appeal. 11
                 Objectors first claim that the Board abused its discretion or erred as a
matter of law in determining that Landowner met her burden of proving that the
proposed addition is a preexisting nonconforming use or structure that had not
been abandoned. We disagree.
                 In granting the instant application, the Board relied upon our Supreme
Court’s decisions in Yocum and Nettleton. In Yocum, a zoning ordinance was
enacted after the landowners had built their house. While the house use conformed

       11
            As this Court has explained:

                 In zoning appeals, as here, where the trial court takes no additional
                 evidence, this Court’s scope of review is limited to determining
                 whether the zoning hearing board committed an abuse of discretion
                 or an error of law. A conclusion that the zoning hearing board
                 abused its discretion may be reached only if the zoning hearing
                 board’s findings are not supported by substantial evidence.
                 Substantial evidence is such relevant evidence as a reasonable
                 mind might accept as adequate to support a conclusion.

Money v. Zoning Hearing Board of Haverford Township, 755 A.2d 732, 735 n.3 (Pa. Cmwlth.
2000) (citations omitted). “Assuming the record demonstrates the existence of substantial
evidence, the Court is bound by the Board’s findings which are the result of resolutions of
credibility and conflicting testimony rather than a capricious disregard of evidence.” Vanguard
Cellular System, Inc. v. Zoning Hearing Board of Smithfield Township, 568 A.2d 703, 707 (Pa.
Cmwlth. 1989), appeal denied, 590 A.2d 760 (Pa. 1990). “The Board, as fact finder, has the
power to reject even uncontradicted testimony if the Board finds the testimony to be lacking in
credibility.” Id.


                                                  9
to those permitted by the ordinance, the front and side boundaries of the house
were within the ordinance setbacks. The landowners sought a building permit to
extend the second floor of the house over the first floor front porch. It was
undisputed that the addition would not increase the encroachment into either the
front or side yard setbacks. The building inspector and the board denied the permit
request, but the trial court reversed and directed that it be issued.
             On further appeal, the Supreme Court affirmed, explaining:

             The record fails to disclose any provision of the zoning
             ordinance which prescribes a maximum height for
             buildings in the use district which a vertical or upward
             extension of the building would violate. That the
             proposed reconstruction would deprive adjoining
             property owners of light and air, or both, is more fanciful
             than real. . . . The allowance of this building permit is
             neither the grant of a ‘variance’ nor an ‘exception’ nor an
             extension of the use of these premises. It is rather the
             grant of a logical, reasonable and natural structural
             change in the building which neither increases any
             nonconformity of its use nor violates any provision of the
             zoning ordinance and in no wise affects the general
             welfare of the neighborhood or of the adjoining property
             owners.
Yocum, 141 A.2d at 605-6.
             In Nettleton, the landowners owned a commercial one-story building
that occupied virtually its entire lot in violation of yard and setback requirements
applicable to new construction in the zoning district.          However, because the
building predated the zoning regulations and was lawful when constructed, it was
permitted to continue as a protected nonconforming use. The zoning administrator
subsequently granted the landowners a building and occupancy permit to expand
the existing building vertically to three stories. Neighboring objectors appealed to
the zoning board, arguing that a variance was required to permit the addition and

                                           10
that if approved, it would have the detrimental effect on the neighborhood and their
properties of depriving them of air and sunlight. Following a hearing, the board
upheld the grant of the permit and the trial court affirmed, but this Court reversed
on appeal.
             On further appeal, the Supreme Court quoted a zoning ordinance
provision stating:

             A nonconforming structure may be enlarged, expanded
             or extended, in compliance with all applicable
             regulations of this Code, unless the enlargement,
             expansion or extension has the effect of increasing the
             degree of nonconformity or making a use or structure
             nonconforming in any other respect.
Nettleton, 828 A.2d at 1036.
             In considering the application of the foregoing ordinance provision,
the Court explained:

             [A] basis for our decision in [Yocum] was the conclusion
             that the proposed construction would not further violate
             the yard or setback regulations which, by their terms,
             controlled only the horizontal limits of construction; that
             is, the permitted outer bounds of the building’s footprint.
             Since the proposed vertical construction in [Yocum] had
             no effect on the horizontal limits of the pre-existing
             construction or the outer bounds of the existing
             building’s footprint, this Court concluded that no
             increase in the existing nonconformity was thereby
             created.

                   The same considerations govern the analysis in
             this case. The vertical addition here proposed would
             have no effect on the existing building’s footprint and,
             therefore, would not increase the encroachment of the
             building within the required front or side yard setback.
             Since the proposal would not have the effect of
             increasing the degree of nonconformity, the zoning

                                         11
               authorities correctly determined that the addition was
               permitted by right pursuant to [the ordinance].
Id. at 1039.
               As noted above, Section 7.200 of the Borough’s Ordinance states that
“[n]o existing building or premises devoted to a nonconforming use shall be . . .
reconstructed[12] [or] substituted . . . except when changed to a conforming use . . .


       12
          The Ordinance does not define “reconstructed” or “substituted.” As this Court has
explained:

                      Although the Statutory Construction Act, 1 Pa. C.S.
                      §§1501–1991, does not apply expressly to zoning and
                      subdivision ordinances, the principles contained in that act
                      are followed in construing a local ordinance. Words and
                      phrases of local ordinances shall be construed according to
                      the rules of grammar and according to their common and
                      approved usage. Zoning ordinances should be construed in
                      a sensible manner. In interpreting provisions of a zoning
                      ordinance, undefined terms must be given their plain,
                      ordinary meaning, and any doubt must be resolved in favor
                      of the landowner and the least restrictive use of the land.

                                             ***

                      In construing the relevant provisions of [a] zoning
               ordinance, we generally use dictionaries as source material to
               determine the common and approved usage of a term.

Kissell v. Ferguson Township Zoning Hearing Board, 729 A.2d 194, 197 (Pa. Cmwlth. 1999)
(citations omitted). Webster’s Third New International Dictionary, in relevant part, defines
“reconstruct” as “to construct again” and “to build again : REBUILD,” and “substitute” as “to put
in the place of another : EXCHANGE.” Webster’s Third New International Dictionary 1897, 2280
(1986). Compare Section 11.202 of the Ordinance (defining “structural change” as “[a]ny
change in the structural members of a building, such as walls, beams, columns or girders.”).
Thus, as stated infra, Sections 7.200 and 7.230(b) expressly permit the complete reconstruction
or substitution of the prior horizontally nonconforming structure with the new equally
horizontally nonconforming structure for the proposed permitted use.



                                               12
and” Section 7.230(b) states that “[a] nonconforming use may be changed into a
conforming use.” Additionally, it is undisputed that the uses associated with
Landowner’s proposed two-story addition are permitted within the R-1B Zoning
District. As a result, the Ordinance specifically permits Landowner to replace the
prior dimensionally nonconforming store structure with the new dimensionally
nonconforming two-story addition because the new use is a permitted use.13
                 Nevertheless, Objectors assert that Landowner’s demolition of the
dimensionally nonconforming store structure and its replacement with the equally
dimensionally nonconforming concrete pad and footer in 1999 constitutes an
abandonment of both the nonconforming store use and the nonconforming store
structure under Sections 7.300 and 11.175a of the Ordinance.14 However, both of
the foregoing Ordinance provisions relate to the abandonment of the

       13
           See, e.g., Zeiders v. Zoning Hearing Board of Adjustment of West Hanover Township,
397 A.2d 20, 22 (Pa. Cmwlth. 1979) (“Here, the authorization [in the ordinance] to ‘repair’ or
‘restore’ nonconforming buildings is without qualification or condition. Giving these words
their plain meaning, an owner of a nonconforming use is authorized by the ordinance to replace
structural elements of a building no longer in good condition. Certainly those words would
apply to the replacement of a wood slatted roof . . . . Further, the replacement of the wooden
beams of the shade house expressly falls within the definition of ‘structural alteration’ in the
ordinance.”).

       14
            As this Court has explained:

                 The discontinuance of a use in excess of the time limitation set
                 forth in the zoning ordinance . . . creates a presumption of an intent
                 to abandon. However the party asserting the abandonment must
                 also prove actual abandonment, which cannot be inferred from
                 non-use alone. Abandonment may be determined from overt acts,
                 a failure to act, or statements.

Metzger v. Bensalem Township Zoning Hearing Board, 645 A.2d 369, 370 (Pa. Cmwlth. 1994)
(citations omitted).



                                                  13
nonconforming store use and not to the dimensionally nonconforming store
structure.15 It is undisputed that Landowner has abandoned the nonconforming
store use, but Landowner’s replacement of the dimensionally nonconforming store
structure with the equally dimensionally nonconforming concrete pad and footer in
199916 constitutes a continuation of the nonconforming structure. Thus, even if it
is assumed that the foregoing sections regarding the abandonment of the
nonconforming store use apply, Landowner continued the structural nonconformity
of the store structure through the construction of the dimensionally nonconforming
concrete pad and did not abandon such for the requisite five-year time period
provided in Section 7.300 of the Ordinance.

       15
           As outlined above, Sections 11.174 and 11.175 of the Ordinance specifically
distinguish between a “nonconforming structure” and a “nonconforming use.” Additionally, as
noted above, Section 11.201 defines “structure,” in pertinent part, as “[a]nything constructed or
erected, the use of which requires location on the ground or attachment to something have a
fixed location on the ground.” The foregoing definition supports the Board’s determination that
the installation of the instant concrete pad and footer constitutes a “structure,” and a
“nonconforming structure” due to its dimensional nonconformity, under the relevant provisions
of the Ordinance. See, e.g., HYK Construction Company v. Zoning Hearing Board of Perkiomen
Township, (Pa. Cmwlth., No. 1191 C.D. 2004, filed March 18, 2005), slip op. at 6 (“Applying
that definition here, these slabs will be mixed and poured onto the ground and will become
permanently attached thereto for the purpose of storing HYK’s pre-cast concrete materials in
conjunction with its business. Accordingly, the concrete slabs at issue in this case fell well
within the definition of a ‘structure’ under the Zoning Ordinance.”).

       16
           Objectors also argue that Landowner presented testimony “that can be interpreted” that
the footer was laid two feet beyond the original footprint of the demolished dimensionally
nonconforming store structure. See Brief of Appellants at 13. However, the Board found as fact
that “[t]he addition is to be built on the footer and concrete pad, no new footers were testified as
needed, and the new addition would not encroach into the setback any further than the existing
footer and pad originally constructed for the addition,” and that Wharton testified that “[t]he
addition would not exceed or encroach upon the setback area any greater than the removed
building and the existing footer and pad.” R.R. at 51a, 53a-54a. There is substantial evidence
supporting the Board’s findings in this regard, see R.R. at 8a-9a, 11a, 13a, and we will not
accede to Objectors’ request to reconsider or reweigh the evidence presented to the Board.


                                                14
               Moreover,        Landowner’s        financial     inability    to    complete       the
construction of the dimensionally nonconforming structure by adding the two-story
addition rebuts a presumption of her intent to abandon the dimensionally
nonconforming structure. See, e.g., TKO Realty, LLC v. Zoning Hearing Board of
the City of Scranton, 78 A.3d 732, 736-37 (Pa. Cmwlth. 2013) (“Where
discontinuance of a use occurs because of events beyond the owner’s control, such
as financial inability, there is no actual abandonment.”) (citation omitted); Joyce
Outdoor Advertising, LLC v. Department of Transportation, 49 A.3d 518, 525 (Pa.
Cmwlth. 2012) (“In rebutting a presumption of abandonment, adverse financial
circumstances may explain a period of non-use.”).
               In sum, because Landowner promptly built the foundation for the new
addition and was delayed in completing the project due to personal and financial
difficulties, there is no basis to find an abandonment of the dimensionally
nonconforming store structure because it was continued through the construction
of the dimensionally nonconforming concrete pad and footer.                            Because the
construction of the two-story addition will not increase the dimensional
nonconformity of the existing nonconforming structure, the Board did not err in
granting Landowner’s application. Nettleton; Yocum.17


       17
          Although the Board also granted Landowner the superfluous relief of a variance, as
outlined above, Landowner was entitled to “reconstruct” or “substitute” the dimensionally
nonconforming store structure with the dimensionally nonconforming addition under the
Ordinance because it was changing the use of the structure to a conforming use. As a result, we
will not address the propriety of the Board’s grant of the dimensional variance. See, e.g.,
Zeiders, 397 A.2d at 21 n.1 (“Since we find that Section C.1 [of the ordinance] provides
appellants with the authority to rebuild the shade house, we need not consider whether the
court’s application of C.2 to the facts in this case was in error.”). Moreover, it is settled that this
Court may affirm on any basis appearing in the record. Kohl v. New Sewickley Township Zoning
Hearing Board, 108 A.3d 961, 973 n.12 (Pa. Cmwlth. 2015).


                                                 15
Accordingly, the trial court’s order is affirmed.




                          MICHAEL H. WOJCIK, Judge




                            16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christine Lavelle and Gary Lavelle,      :
her husband,                             : No. 1303 C.D. 2015
                                         :
                         Appellants      :
                                         :
                 v.                      :
Borough of Dunmore Zoning Hearing        :
Board and Maria Wharton                  :



                                      ORDER


            AND NOW, this 16th day of September, 2016, the order of the
Lackawanna County Court of Common Pleas dated June 22, 2015, at No. 2014-
CV-3903, is AFFIRMED.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Christine Lavelle and Gary Lavelle,      :
her husband,                             :
                   Appellants            :
                                         :   No. 1303 C.D. 2015
            v.                           :
                                         :   Submitted: May 11, 2016
Borough of Dunmore Zoning Hearing        :
Board and Maria Wharton                  :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE McCULLOUGH                                 FILED: September 16, 2016

            The issue before us is a plain and simple request for a horizontal (not
vertical) dimensional variance which should be denied for failing to meet the
requisite criteria for the same.   Prior to this matter, that criterion has been
consistently applied in decades of precedent.       Instead, the Majority, while
thoughtfully written, relies on an ocean of red herrings to support its conclusion.
Foremost among these are its reliance on a non-existent, non-conforming use, and
non-conforming structure as the basis for the analysis, a purported claim of
hardship, and two vertical expansion cases. Hence, I must respectfully dissent.
               The essential facts in this case are not in dispute. Until 1999, the
property of Maria Wharton (Landowner) contained two structures - a home and an
attached, one-story store.          The store was a non-conforming structure as it
encroached at least five feet too far into the requisite side-yard setbacks between
Landowner’s property and a neighboring property owned by Christine and Gary
Lavelle (Objectors). However, in 1999, Landowner completely removed the non-
conforming structure, including the foundation, as confirmed by Landowner’s son
in his testimony before the Borough of Dunmore Zoning Hearing Board (Board).
In response to a question from a member of the Board as to whether the existing
concrete pad consisted of the foundation of the demolished store, Landowner’s son
responded “[n]o . . . that building was taken down. The foundation was taken
down. In `99 we poured the new pad that was there. . . .” (Reproduced Record
(R.R.) at 11a) (emphasis added).1
               It is clear from the foregoing passage that Landowner not only
demolished the one-story non-conforming store structure, she also, by removing its
foundation, removed any vestige of it. It is also clear that in so doing, Landowner

       1
          The majority opinion ignores this testimony. It references, however, a statement made
by Landowner’s son earlier in the proceedings before the Board that the “concrete pad was put
right on the same foundation that’s there.” (R.R. at 8a.) Whatever was meant by that statement,
the subsequent testimony noted above makes it clear that the non-conforming store, including its
foundation, was completely removed by Landowner in 1999. Moreover, the Board notes that the
proposed two-story addition to the existing residence would be built “on a footer and concrete
pad which were constructed after the demolition of a one story structure occupying a portion of
the property . . . undertaken to accommodate the proposed addition.” (Board’s Finding of Fact
No. 4; R.R. at 53a.) Additionally, the trial court, in its June 22, 2015 decision, states that “a new
foundation was constructed where the store foundation was previously located and a building
pad was built. . . .” (R.R. at 63a.) Landowner does not contest this point either. Indeed, in
addition to the testimony of Landowner’s son noted above, Landowner’s amended brief recites
“[a] new foundation was constructed where the store foundation previously was located. . . . ”
(Amended Brief at 2.)

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had no intention of preserving the non-conforming use attendant to said structure.
On the contrary, Landowner intended only to construct an attached, two-story
addition to her residence which is the subject of the variance request at issue.
             Consequently, the fact that at one time there had been a non-
conforming structure on Landowner’s property is of no moment and is irrelevant to
a determination regarding the requested variance.         For purposes of properly
evaluating the horizontal dimensional variance being sought by Landowner, said
request must be viewed as any other request to build a residential addition that
encroaches into a mandatory side-yard setback. In that regard, Landowner must
satisfy the traditional requirements for a variance. There is simply no basis in the
law or the facts of this case to hold otherwise. The Majority opinion, however,
concludes otherwise, ignoring the variance requirements and compounding the
errors made by both the Board and the trial court.
             First, the Majority states that “the Ordinance specifically permits
Landowner to replace the prior dimensionally non-conforming store structure with
the new dimensionally non-conforming two-story addition because the new use is a
permitted use.” (Slip op. at 12.) This is simply incorrect and is a red herring.
There are no provisions in the Ordinance that permit a non-conforming structure to
be eliminated, as is the case here, and an entirely new structure erected, albeit one
whose use is permitted, when that structure would be in violation of the
Ordinance’s side-yard setback requirements absent a dimensional variance.
             Moreover, the proposed two-story addition is not “non-conforming”
as the Majority states. A non-conforming structure is one which lawfully existed
prior to the enactment of a zoning ordinance to which it would not comply. See




                                      PAM - 3
Section 11.174 of the Ordinance;2 Section 107 of the Municipalities Planning Code
(MPC).3 These sections define the term “nonconforming structure” as a finite legal
term wholly inapplicable to Landowner’s proposed two-story addition, and so too
is that portion of the addition that has already been constructed, i.e., the foundation
and concrete pad.4
               The Majority cites Sections 7.200 and 7.230(b) to support the
assertion that the Ordinance “specifically permits” the addition, as well as the fact
that the uses thereof are permitted. While the use may be permitted, Section 7.200
refers only to “an existing building . . . devoted to a nonconforming use.” Here,
there is no existing building; it was completely removed and the Ordinance
provides no basis to thereafter construct a new structure in violation of the
Ordinance’s side-yard setback requirements.
               The Majority correctly notes that “reconstruction” is not defined in the
Ordinance. However, its attempt to bootstrap the definition of “structural change”
in Section 11.202 is without merit. That definition presupposes the existence of a
building and speaks to changes in the structural members thereof.                     Here, the
building is gone. Indeed, the only reference in the Ordinance to permitting the

       2
          As the Majority notes, Section 11.174 of the Ordinance defines “nonconforming
structure,” in pertinent part, as “[a] structure or part of a structure manifestly not designed to
comply with the applicable use or extent of use provisions . . . where such structure lawfully
existed prior to the enact of such ordinance or amendment. . . .” (Slip op. at 2.)

       3
        Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10107. Section 107 defines
“nonconforming structure” in the same manner as Section 11.174 of the Ordinance.

       4
         There is nothing in the record to suggest that Landowner obtained a permit to demolish
the former one-story structure or, for that matter, obtained a building permit, variance, or any
other approval to construct the subject foundation and concrete pad. Without such approval, the
foundation and concrete pad are in violation of the Ordinance.


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reconstruction of a non-conforming use after removal is where the use has been
“destroyed” by more than 50% of its floor area. See Section 7.240(c) of the
Ordinance.
             The Majority then asserts that while Landowner abandoned the non-
conforming use, she did not abandon the non-conforming structure because she
constructed an “equally dimensionally nonconforming concrete pad and footer”
and thereby continued the structural nonconformity of the store structure and “did
not abandon such for the requisite five-year time period provided in Section 7.300
of the Ordinance.” (Slip op. at 13-14.) This reasoning is fundamentally at odds
with itself. While the Majority notes the distinction between a non-conforming use
and a non-conforming structure, it relies upon Section 7.300 of the Ordinance for
its conclusion that the Landowner did not abandon the “structural nonconformity
of the store structure” for the requisite five year time period. (Slip op. at 13.)
Section 7.300 of the Ordinance, however, is titled “Termination of Nonconforming
Uses,” and the provisions thereof are expressly limited to the abandonment of a
non-conforming use. It is therefore simply wrong to glom a non-conforming
structure onto the provisions of Section 7.300 of the Ordinance and Landowner
cannot avail herself thereof.
             It is difficult to imagine a clearer example of the abandonment of a
non-conforming structure than what occurred in this case. Landowner demolished
the non-conforming structure and removed it, at all times intending to build a very
different structure. Thus, nothing was carried over from the previous structure.
Moreover, aside from intending to construct an entirely different structure,
Landowner offered no other reasons for removing the non-conforming structure –
most notably, Landowner did not claim that the non-conforming store structure
was “damaged,” which would have permitted Landowner to restore and reconstruct
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it pursuant to 7.210 of the Ordinance, or that said structure was sufficiently
destroyed so as to compel its removal and permit reconstruction pursuant to
Section 7.240(c) of the Ordinance. Sections 7.210 and 7.240 are the only bases
prescribed by the Ordinance and neither is applicable in this instance.
             Accordingly, there is nothing in the Ordinance to permit the removal
of a non-conforming structure and construction of a subsequent structure with the
same footprint on the basis of Landowner’s preference, not occasioned by damage
to, or destruction of, the non-conforming structure, when said footprint is beyond
the bounds of the requisite side-yard setback requirements. The Majority also is
bereft of any decisional authority to support this notion. Hence, the Majority’s
reliance on the former non-conforming structure to justify the new addition to the
home on Landowner’s property is misplaced.          If Landowner is to be able to
proceed with the addition, it must be by way of a variance.               However, an
examination of the record shows that Landowner has not met the requisites for
such a variance.
             Section 8.210(a) of the Ordinance sets forth the following necessary
criteria for the grant of a variance:

             (1) That there are unique physical circumstances or
             conditions, including irregularity, narrowness, or
             shallowness of lot size or shape, or exceptional
             topographical or other physical conditions peculiar to the
             particular property and that the unnecessary hardship is
             due to such conditions and not the circumstances or
             conditions generally created by the provisions of the
             zoning ordinance in the neighborhood or district in which
             the property is located.

             (2) That because of such physical circumstances or
             conditions, there is no possibility that the property can be
             developed in strict conformity with the provisions of the
             zoning ordinance and that the authorization of a variance
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             is therefore necessary to enable the reasonable use of the
             property.

             (3) That such unnecessary hardship has not been created
             by the appellant.

             (4) That the variance, if authorized, will not alter the
             essential character of the neighborhood or district in
             which the property is located, nor substantially or
             permanently impair the appropriate use or development
             of adjacent property, nor be detrimental to the public
             welfare.

             (5) That the variance, if authorized, will represent the
             minimum variance that will afford relief and will
             represent the least modification possible of the regulation
             in issue.
(R.R. at 81a-82a) (emphasis added).
              In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh,
721 A.2d 43 (Pa. 1998), our Supreme Court set forth a relaxed standard for
establishing unnecessary hardship where an applicant seeks a dimensional
variance. The court explained that an applicant seeking a dimensional variance:

             is asking only for a reasonable adjustment of the zoning
             regulations in order to utilize the property in a manner
             consistent with the applicable regulations. Thus, the
             grant of a dimensional variance is of lesser moment than
             the grant of a use variance, since the latter involves a
             proposal to use the property in a manner that is wholly
             outside the zoning regulation.
Id. at 47.    Hence, the court held that “the quantum of proof required to
establish unnecessary hardship is indeed lesser when a dimensional variance, as
opposed to a use variance, is sought.” Id. at 48. Further, the court held that:

             To justify the grant of a dimensional variance, courts
             may 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
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             the building into strict compliance with the zoning
             requirements and the characteristics of the surrounding
             neighborhood.
Id. at 50.
             Nevertheless, this Court has stated that while Hertzberg eased the
requirements for a dimensional variance, “it did not remove them,” and that an
applicant “must still present evidence as to each of the conditions listed in the
zoning ordinance, including unnecessary hardship.” Tri-County Landfill v. Pine
Township Zoning Hearing Board, 83 A.3d 488, 520 (Pa. Cmwlth.), appeal denied,
101 A.3d 788 (Pa. 2014). Indeed, we have consistently held that, even under this
relaxed standard, an applicant is not entitled to a dimensional variance where no
hardship is shown or where the hardship alleged amounts to an applicant’s mere
desire to increase profitability. See, e.g., McCarry v. Haverford Township Zoning
Hearing Board, 113 A.3d 381 (Pa. Cmwlth. 2015); Society Hill Civic Association
v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012);
Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144 (Pa. Cmwlth.
2011).
             Landowner only sought a variance relating to the side-yard setback
requirement. Landowner’s son was the only witness to testify in support of his
mother’s request for a variance. His testimony neither addresses nor supports the
need for encroachment into the setback by five feet. He testified that his mother
wanted to “put in a two story addition onto the existing house there with the garage
on the first floor and second floor to be two bedrooms,” but that “the pad is 22 x 25
. . . we need the variance for the space in between because right now there is only 4
foot 6 from foundation to foundation.” (R.R. at 6a-7a.)
             While his testimony referenced some variations in distances between
the front and rear of the concrete pad and the property line shared with Objectors
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and a slope in the rear of the property, this testimony was confusing and did not
describe the lot size or shape or any other unique physical circumstances or
conditions relative to the property, let alone any purported unnecessary hardship
resulting therefrom.
             Instead, he merely stated that “[o]n the concrete pad there on the one
end the back corner of it, my mother’s property there goes 3 foot from the property
line over. It’s actually 3 foot 4 inches. And it goes up further it’s 2 foot 3 inches.”
(R.R. at 7a.) Upon questioning by members of the Board, he noted that the
property “slopes down” in the back and that the property line was “not like a
straight line.” (R.R. at 10a, 12a.) He described the pad as being “2 foot 3 off the
front of [the property line] and 3 foot 4 off the back. But again, there’s 4 foot 6 in
between.” (R.R. at 12a.) Later, he stated that “[t]he very back of where that pad
is, it’s only like 14 inches off the property line. And in the front they have about 2
foot 3.” (R.R. at 13a.)
             All of his testimony, except for noting that the property “slopes
down” in the back, relates to the current measurement of encroachment by the
existing concrete pad. However, the pad itself and the desire to build upon the
entire pad is separate from the need to build or any purported hardship experienced
by not building an addition onto a home which will encroach into the required
setback by nearly five feet.
             Additionally, he offered no testimony regarding the inability to
develop the property in strict conformity with the Ordinance, the need for a
variance to enable the reasonable use of the property, or the lack of any
impairment to the use or development of adjacent property. In this regard, I note
that while Landowner sought to construct the addition with a two-car garage on the
footprint of the existing concrete pad, she offered no testimony why a smaller,
                                     PAM - 9
dimensionally-conforming addition could not be built.         Indeed, Landowner’s
application to the Board, as well as her son’s testimony, described the concrete pad
as being twenty-two feet wide.
             In sum, Landowner sought a dimensional variance from the Board
relating to the side-yard setback requirement of the Borough’s Ordinance, but
failed to present sufficient evidence establishing the necessary criteria for a
variance under Section 8.210(a) of the Ordinance, including unnecessary hardship,
which standard is relaxed but still required for a dimensional variance. The Board
erred in granting Landowner a variance.
             The Board also erred in alternatively concluding that Landowner was
entitled to construct the addition as a vertical expansion of a non-conforming use.
The prior, non-conforming use was the store, which was demolished in 1999. This
demolition, coupled with Landowner’s desire to construct an addition that
constituted a new, conforming use, constituted an abandonment of the prior, non-
conforming use. Hence, such use could not be continued or expanded under the
Ordinance.
             Accordingly, I would reverse the trial court’s order.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




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