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In a recently published opinion, the Pennsylvania Commonwealth Court in RDM Group v. Pittston Township Zoning Hearing Board, 2004 Pa. Commw. LEXIS 58 (Feb. 20, 2024), found that a local zoning hearing board and the corresponding trial court abused its discretion by failing to properly evaluate the merits of zoning variance requests of a property owner that sought to build a warehouse in Pittstown Township.

According to the opinion, RDM Group proposed to construct a 164,640-square-foot warehouse on a vacant, 17.9-acre triangular parcel that contained woodlands and a creek.

The local chamber of commerce designated a portion of the property, equaling approximately 20%, as being within the Grimes Industrial Park, the opinion said.

The property in RDM Group is zoned for R-1 single-family use, with on the south and west of it, bordering in the I-1 industrial use zoning district and, on the east of it, bordering by an R-1 property.

RDM Group applied for a zoning permit in late 2019 to construct the warehouse.

The zoning officer for the township denied the governmental application because warehouses are not permitted as a use in the R-1 district, the opinion said.

RDM Group then sought special governmental approval from the township’s zoning hearing board, requesting a use zoning variance and several dimensional zoning variances.

The zoning hearing board thereafter conducted a hearing in early 2020.

At the hearing, RDM Group called several witnesses to testify in support of the zoning variance requests.

A real estate appraiser testified at the hearing on behalf of RDM Group that he was familiar with other industrial uses in the area and opined that the property had “extremely minimal” value as an R-1 property due to the adjoining industrial uses, the opinion said.

The real estate appraiser further testified at the hearing that it would not be advisable to construct single-family dwellings in this area and that the nearest residence to the property is 1,000 feet away and would not be adversely affected by the zoning variance requests.

A land development engineer also testified at the hearing for RDM Group, pointing out that RDM Group initially believed that the property was in the I-1 district and only later discovered that it was in fact in the R-1 district, the opinion said.

At the hearing, the land development engineer added that the irregular shape of the property meant that the warehouse would be located near other industrial uses, not the residential uses to the east, and he opined that it would be possible, but not practical, to build a single-family homes at the property.

RDM Group’s director of development and director of management also testified at the hearing. He confirmed that RDM Group only learned the property was zoned R-1 and could not be used as a warehouse after RDM Group already spent a considerable sum of money on its plans.

RDM Group also called a civil engineer to testify at the hearing. The civil engineer summarized a traffic survey that was performed on behalf of RDM Group that noted that the area could accommodate the additional traffic the warehouse would be expected to generate.

Finally, RDM Group had a land use planner testify at the hearing who stated that using the property for residential use would be “impractical” and “defy conventional wisdom” due to the surrounding industrial uses. The land use planner also testified at the hearing that the requested zoning variances would not adversely affect the surrounding area and that they constituted the least zoning modification possible.

The township called its engineer at the hearing who testified in opposition to the zoning variance requests.

The township’s engineer agreed that the property was irregularly shaped but also testified that he believed it could accommodate residential properties.

Other than the testimony of the township’s engineer, the township did not call any other witnesses or introduce any other facts into evidence at the hearing.

At the conclusion of the hearing, the zoning hearing board voted unanimously to deny RDM Group’s zoning variance requests.

The trial court ultimately upheld the zoning hearing board’s ruling.

RDM Group then appealed the trial court’s ruling to the Commonwealth Court.

The court in RDM Group held that the zoning hearing board erred and abused its discretion in finding that there were no unique physical characteristics precluding the use of the property consistent with its zoning classification as R-1 and that RDM Group’s harm was self-created because it was technically possible to build single-family homes at the property.

The court in RDM Group stated that the zoning hearing board relied almost exclusively on the fact that it was, at least in theory, possible to build single-family homes at the property. However, according to the court in RDM Group, what is possible is not the correct standard to determine the merits of such a zoning variance request. Rather, the court in RDM Group cautioned that the zoning hearing board should have considered whether the zoning rules and regulations for the property would permit RDM Group to make reasonable use of the property as currently zoned. Due to the zoning hearing board’s application of a “possibility” standard instead, the court in RDM Group concluded that the zoning hearing board erred as a matter of law.

As to the unique physical characteristics of the property, the zoning hearing board concluded that none in fact existed. However, the court in RDM Group stated that Pennsylvania jurisprudence has held that the character and use of surrounding properties may in certain circumstances constitute unique physical characteristics that justify granting a variance, for example, where a parcel is surrounded by “dissimilar and disharmonious” uses.

Relating to the underlying circumstances, the court in RDM Group noted that the property is composed of vacant woodlands and had not been used for residential purposes since 1974, when the property was purchased.

At the hearing, RDM Group presented uncontested evidence that the property was surrounded by other industrial uses and that, accordingly, it had minimal value for use as a residential development. Keeping that in mind, the court in RDM Group found that the hardship was particular to this property.

The court in RDM Group also emphasized that, although a zoning board’s findings of fact and credibility are accorded great deference upon appeal, it emphasized that, aside from stating that it was merely possible to build single-family homes at the property, the zoning hearing board did not make any specific findings of fact regarding the unique nature of the property or any hardship such uniqueness may have caused.

The court in RDM Group pointed out that the weight of the evidence presented by RDM Group’s witnesses, as well as the failure of the township’s sole witness failed to contradict and, in fact, corroborated certain portions of their testimony.

The court in RDM Group reasoned that the zoning hearing board’s findings on the unique characteristics of the property were not supported by substantial evidence in the record. In that regard, the court in RDM Group believed that the zoning hearing board’s findings “were arbitrary and capricious and are disregarded.”

For similar reasons, the court in RDM Group held that the zoning hearing board’s finding that RDM Group created its own hardship and that the requested zoning variance requests would harm the public welfare or change the character of the area were not supported by substantial evidence.

Finally, the court in RDM Group concluded that there was no evidence in the record indicating that the requested zoning variances was greater in scope than what would be required to allow RDM Group’s proposed use of the property.

Based on the foregoing, the court in RDM Group reversed the trial court’s ruling and remanded the case to the zoning hearing board for additional findings of fact regarding RDM Group’s requested zoning variances.

Because the zoning hearing board did not make any findings of fact or conclusions of law regarding the requested dimensional zoning variances, the court in RDM Group did not address those issues on appeal.

Alan Nochumson is the principal of Nochumson P.C., a legal services firm with a focus on real estate, land use and zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-600-2851 or alan.nochumson@nochumson.com.

Alex Hamilton is an associate attorney at the firm. You can reach him at 215-399-1346 or alex.hamilton@nochumson.com.