Fowler v. City of Bethlehem Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 171 (May 22, 2018)
Where there is a change in theory regarding a zoning application, the doctrine of res judicata and collateral estoppel do not apply. Additionally, seeking to convert a conforming use to a nonconforming use is inconsistent with the burden to show that property cannot be used for a permitted purpose.
Applicant’s property consists of a large single-family residence, two smaller accessory buildings that are connected and contain retail space on the first floor and an apartment on the second floor, and a detached garage which has an apartment above it. While retail is not a permitted use in the district, the retail space in the accessory buildings was lawfully nonconforming because it predated the enactment of the zoning ordinance. In 2013, Applicant sought a special exception to convert the single-family residence into an office while maintaining the two retail spaces and, in the alternative, a use variance (2013 Application). The Zoning Hearing Board (ZHB) denied both requests. Applicant appealed the ZHB’s decision, but both the trial court and the Commonwealth Court affirmed. In 2016, Applicant sought a special exception to convert one nonconforming use to another and, in the alternative, a use variance to convert the existing residence and retail building into offices and one apartment (2016 Application). The ZHB denied the special exception request but granted the use variance. Objectors appealed the ZHB’s decision and the trial court affirmed. Objectors appealed to the Commonwealth Court arguing res judicata applied and the variance should have been denied.
Regarding the first issue, the Commonwealth Court stated a change in theory prevents the application of res judicata. In the 2013 Application, Applicant sought a special exception to convert the single-family residence into an office while maintaining the two retail spaces. Applicant also sought a use variance. In its 2016 Application, Applicant sought a special exception to convert one nonconforming use to another. Alternatively, Applicant sought a use variance to convert the existing residence and retail building into offices and one apartment. Therefore, because Applicant proceeded under different theories and requested different relief from its 2013 Application, res judicata (and collateral estoppel) did not bar Applicant’s 2016 Application.
With respect to the variance issue, the Commonwealth Court stated that for Applicant to prove a physical hardship, it must show that the property cannot be used for a permitted purpose. Additionally, an applicant must also show that there is no way to bring the property into compliance with the ordinance. The Court agreed with the ZHB that physical hardships existed due to the unique nature of the Applicant’s property. The Court noted, however, that while the property could not be used solely as a residential property due to its unique nature, Applicant was seeking to convert the only conforming structure (the single-family residence) to a nonconforming one. Therefore, Applicant did not meet its burden of proving that it could not use its property for a permitted purpose.
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