Agenda - Planning Commission - 12/01/2016

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i f October 10, 2016 1 Volume 10 1 Issue 19 Zoning Bulletin Tomino failed to prove any hardship warranting the dimensional variance because the property could continue to be used as a deli and the surrounding neighborhood would be"greatly impacted by the expansion." DECISION:Affirmed. The Commonwealth Court of Pennsylvania held that both the special excep- tion and the dimensional variance were warranted and properly granted to Tomino by the ZHB. In rejecting the Dunbars' arguments, the court noted that a"special excep- tion is not an exception to a zoning restriction, but a use that is expressly permitted."The court explained that while Tomino had the burden of persuad- ing the ZHB that the proposed new nonconforming restaurant use satisfied the objective requirements of the Ordinance, once such compliance was proven, the Dunbars as the objector had the burden of proving"that the special excep- tion use would have an adverse effect on the general public that is not normally associated with the proposed use." Here, the court found that Tomino fulfilled its burden of proof. The court agreed with the ZHB's findings that the conversion of the deli use to a restaurant use was "consistent with the spirit, purpose, and intent of the Ordinance and [was] consistent with the most appropriate use of the land, in that the deli existed as a nonconforming use and[would] continue in a similar capacity as a restaurant use." The court also agreed with the ZHB that the proposed plan"conform[ed]with all applicable requirements of the Ordinance, except for the expansion beyond 50 percent, which [was] the subject of the dimensional variance request." Further, the court also found that the Dunbars then failed to meet their burden of proof in that they only showed"unsubstantiated concernsor vague generalities." "[M]ere speculation as to possible harm" and "mere lay testimony of concerns" were insufficient to prove that the change to a nonconforming restaurant use would be detrimental to the public health, safety,and general welfare,said the court. As to the dimensional variance,the court found that Tomino's expansion of the nonconforming restaurant was "necessary for the reasonable use of the [p]roperty,"as the existing building was an inadequate space and square foot- age to conduct Tomino's business. The court also found that the proposed expansion would not adversely impact the neighborhood but would result"in a more aesthetically-pleasing appearance that is ADA-compliant and in which customers can sit down for a meal." See also: Ruddy v. Lower Southampton Tp. Zoning flearin.g Bd., 669 A.2d 1051 (Pa. Cotnmw. Ct. 1995). See also: Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43(1998). See also:Limley v. Zoning Hearing Bd. of Port Vue Borough, 533 Pa. 340, 625 A.2d 54(1993). r Case Note: In its decision, the court also found that the restaurant use was similar to the existing 4 ©2016 Thomson Reuters