Agenda - Planning Commission - 07/12/2012

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May 25, 2012 1 Volume 6 1 No. 10 Zoning Bulletin downturn in the economic climate were sufficient to establish a change in cir- cumstances necessary for modification of conditions imposed in granting an earlier variance; (2) the record did not contain sufficient evidence to support the factual findings concerning the economic downturn and increased compe- tition that Mixto relied upon as a basis for the modification; and (3) the Board erred in concluding that the record contained sufficient evidence to support its conclusion that the grant of the requested modification would not injure the public. The trial court affirmed the Board's decision. German again appealed. DECISION: Reversed. The Commonwealth Court of Pennsylvania held that the evidence was insufficient to support the Board's finding of a change in circumstances that would demonstrate that the hours -of -operation limitation imposed in Mixto's 2001 variance conditions were no longer appropriate. In so holding, the court explained that in order to obtain a modification of the hours -of -operation condition on the 2001 variance, Mixto had to prove that the condition no longer promoted the public interest. In other words, there must have been a change in circumstances that made the condition no longer appropriate. Here, the court found Mixto failed to show changes in circumstances rendered the hours -of -operation condition no longer appropriate. The court found that Mixto had failed to show that the hours of operation of other restaurants changed after Mixto opened. Moreover, the court found that there was a lack of evidence as to the proximity of other restaurants that Mixto had claimed had later operating hours. Without such evidence, said the court, "the Board could not define the competition area at issue or determine whether the overall characteristic of the area (or areas) ha[d] changed, such that the Board could conclude that the original conditions imposed, limiting Mixto's hours of operation, [were] no longer appropriate." The court further concluded that, even if the economic downturn was rele- vant to the question of whether a change in the circumstances made the condi- tions of the 2001 variance no longer appropriate, the evidence presented here was insufficient to demonstrate that the economic downturn has impacted Mixto. The only comments in the notes of testimony regarding the economy came from Mixto's legal counsel, who referred to a general economic downturn. The court found this was "simply insufficient in any light to support factual determinations that the alleged [economic] downturn had created a change in circumstances that could be remedied by increased hours of operation." See also: Ford v. Zoning Hearing Bd. of Caernarvon Tp., 151 Pa. Commw. 323, 616 A.2d 1089 (1992). 8 © 2012 Thomson Reuters