Agenda - Planning Commission - 09/05/2013

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Zoning Bulletin July 10, 2013 I Volume 7 I Issue 13 PENNSYLVANIA (06/07/13)—This case addressed the issue of whether an applicant established entitlement to a variance for its requested expansion of a nonconforming use. The case involved the evaluation of whether a use variance standard or a dimensional variance standard applied to the requested expansion of a nonconforming use. The Background/Facts: Ghassan G. Elias ("Elias") owned property (the "Property") in the City of Bethlehem, Pennsylvania (the "City"). There were three buildings on the Property: a main building, and two outbuildings. Since 2006, Elias operated a fanners' market/grocery store, known as Elias Market, in the main building on the Property. The Elias Market was a preexisting nonconforming use under the City's Zoning Ordinance (the "Ordinance"). Prior to Elias' purchase of the Property, the former owner's expanded the nonconforming use on the Property by 50% after obtaining special exceptions, pursuant to § 1323.04 of the Ordinance. Section 1323.04(a) provided that the total building area or total land area occupied by a nonconforming use or structure shall not be increased by greater than 50% beyond the area that existed at the time the use or structure first became nonconforming. In 2009, Elias sought a variance from the § 1323.04(a) of the Ordinance. Elias proposed to construct an enclosed loading dock, an en- closed ramp, and a warehouse on the lot. Those improvements would increase the existing nonconforming use by another 50% from 14,436 to 19,279 square feet. Because the proposed construction would also increase the total building coverage on the lot to 24.32%, Elias also requested a variance from the 15% maximum building coverage for the R-R zoning district where his property was located. The City zoning officer denied Elias' variance requests. Elias appealed. The City's Zoning Hearing Board (the "Board") granted the requested variances. The Board concluded that Elias established unnecessary hard- ship resulting from the unique conditions of the property. The Board found that Elias' Property was a corner lot and suffered from "severe elevation changes due mainly to the excavation of [the adjacent road]." The Board further found that: the existing loading dock was narrow, steep, insufficient and unusable in the inclement weather; there was no room in the main building for use of forklifts; the proposed loading dock and ramp would enhance the employees' safety and provide tractor trail- ers with better access to Elias Market; the proposed warehouse would provide Elias Market with more storage space without increasing the size of the store; the expansion would not adversely impact the neighbor- hood; and the proposed structures would reduce "eye pollution," noises, and the number of deliveries made to the store and eliminate an access to the lot from the adjacent road. Adjacent landowners (the "Objectors") appealed the Board's decision. The trial court affirmed the grant of the variances. Among other things, ©2013 Thomson Reuters 3