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1 <br /> { <br /> Zoning Bulletin October 10, 2016 1 Volume 10 1 Issue 19 <br /> 1 PENNSYLVANIA(07/18/16)—This case addressed the issue of whether a <br /> special exception was warranted to change a nonconforming deli use to a <br /> nonconforming restaurant use. It also addressed whether a dimensional vari- <br /> ance was warranted. <br /> The Background/Facts: William and Joan Tomino ("Tomino") owned <br /> property in an RT High Density Residential Zoning District in the City of <br /> Bethlehem (the"City"). On that property, Tomino operated a deli. The deli <br /> 4 <br /> 1 had been operating as a legal nonconforming use. In October 2013, Tomino <br /> filed an application with the City's Zoning Hearing Board(the"ZHB")for a <br /> special exception to change the nonconforming deli use to a nonconforming <br /> restaurant use. Tomino also asked the ZHB for a dimensional variance to <br /> expand the nonconforming restaurant from 540 square feet to 1,080 square <br /> feet.Among other things, Tomino wanted to add tables and chairs,ADA- <br /> compliant restrooms and a handicap ramp.Tomino also wanted to expand the <br /> { restaurant's hours of operation. <br /> Under the City's Zoning Ordinance (the "Ordinance'), a nonconforming <br /> use may, by special exception, be permitted to be changed to another <br /> nonconforming use if: (1)the applicant shows that a nonconforming use could <br /> not reasonably be changed to a permitted use; (2)the applicant shows that the <br /> proposed change would be "less objectionable in external effects than the <br /> existing nonconforming use" with respect to traffic, nuisances such as noise, <br /> fume,heat,vibration, storage and waste disposal,and appearance. <br /> The ZHB ultimately granted Tomino's requested special exception and <br /> dimensional variance. The ZHB found that Tomino met the general require- <br /> ments for a special exception to change the nonconforming deli use to a <br /> ' nonconforming restaurant use.The ZHB found that the change in nonconform- <br /> ing use was "consistent with the spirit,purpose, and intent of the Orhilnance; <br /> encourage[d] the most appropriate use of the land; [did] not overcrowd the <br /> land; conserve[d] the value of the land; benefit[ted] the neighborhood; d[id] <br /> not increase traffic congestion; provide[d] adequate light and air; and <br /> protect[ed]from fire,flood,and other dangers."The ZHB also determined that <br /> the restaurant use was consistent with the character of the district, as there <br /> were other restaurants and businesses in the area and the use conformed with <br /> all applicable Ordinance requirements,except for the expansion beyond 50%. <br /> With regard to the dimensional variance to increase the restaurant's size be- <br /> yond 50%,the ZHB determined that Tomino met all the applicable criteria for <br /> a variance.The ZHB found that"an unnecessary hardship would result if the <br /> dimensional variance were denied because, among other things, the building, <br /> which [was] a nonconforming structure with a nonconforming use, [was] <br /> completely inadequate to operate a restaurant use.'" <br /> Elmer Dunbar and Linda Dunbarthe "Dunbars" ' <br /> ( ) objected to Tomino's <br /> change in nonconforming use and expansion. The Dunbars appealed the <br /> ZHB's determinations.The trial court affirmed the ZHB's decisions. <br /> E <br /> The Dunbars again appealed. On appeal, among other things, they argued <br /> that Tomino failed to meet the Ordinance's conditions for the grant of a special <br /> exception to change one nonconforming use to another nonconforming use. <br /> They contended that the change would result in"excessive exhaust smoke,"as <br /> well as possible increased traffic and parking problems.They also argued that <br /> ©2016 Thomson Reuters 3 <br /> i' <br />