IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael M. Lyons, : Appellant : : v. : : Zoning Hearing Board of the : Borough of Sewickley : : v. : : MCM Ventures, Ltd : : v. : : No. 178 C.D The Borough of Sewickley : Argued: November 10, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: January 26, 2015 Michael M. Lyons (Lyons) appeals pro se from the Order of the Court of Common Pleas of Allegheny County (common pleas court) which affirmed the Sewickley Borough Zoning Hearing Board s (Board) dismissal of Lyons challenge to the validity of the Borough of Sewickley Ordinance 1283 ( Ordinance 1283 ). The Property The property at issue (Property) consists of a 3.79-acre L shaped parcel which fronts Thorne Street on one side, Ohio River Boulevard on one side and Boundary Street which runs between Thorn Street and Ohio River Boulevard

2 in the Borough of Sewickley (Borough). It is owned by MCM Ventures, Ltd. (MCM). Sewickley. The Property has a history of being zoned differently than any other in In 1890 an inn, known as the Elmhurst Inn, was located on the Property. In March of 1959, the Property was specially zoned as an R-2A District, with a hotel and/or motor lodge as a permitted use. The owner was granted permission to erect 116 motel units, a restaurant; a cocktail lounge, and banquet rooms. The Property was the only property in Sewickley that was designated as an R-2A District as of July of 1959, and it remained the only property so designated until a new zoning ordinance was adopted in July of In 1971, the Property was again zoned differently from any other property in Sewickley, this time as an R-M District, where a motel was a permitted use. In 1997, the Borough adopted a new Zoning Code ( 1997 Zoning Code ), pursuant to which the Property was zoned part of an R-2 District (Multi- Family Residential) that allowed a hotel/motel as a conditional use. The most recent improvement on the Property was the Sewickley Country Inn which closed in It consisted of motel rooms, a restaurant, a bar, meeting rooms, a banquet hall and a swimming pool. 2

3 Creation of the Ohio River Boulevard Mixed Use Zoning District (OMU District) In September of 2009, MCM applied for use variances from the requirements of the R-2 District in order to demolish the existing hotel structures and replace them with two office/townhouse buildings. MCM proposed to build townhouses on the upper portion of the property and administrative, business, municipal, professional and/or medical offices at ground level. Under the 1997 Zoning Code in effect at that time, administrative, business, municipal, professional and medical offices were not permitted or conditional uses in an R-2 District. Motel/Hotel was a conditional residential use in R-2 Districts, not a commercial use. Lyons opposed the requested use variance. On November 3, 2009, the Board granted MCM s request for a use variance. The Board found that the construction of residential buildings on the southern portion of the Property could only be accomplished at a prohibitive cost and that there was credible evidence that the Property could only be reasonably used for a permitted purpose at a prohibitive cost. On December 15, 2009, Borough Council voted to have the Planning Commission prepare and advertise an Amendment to the Zoning Map to provide for a Mixed Use zoning designation related to the specific granting of a variance for the Property. On July 7, 2010, the Planning Commission held a hearing on a proposed ordinance creating an OMU District. Following the hearing, the 3

4 Planning Commission voted 4 to 1 not to recommend the proposed ordinance on the grounds that it was not consistent with the variances approved by the Board. At a public hearing on July 19, 2010, Borough Council approved the Amendment pursuant to Ordinance 1283 which amended the 1997 Zoning Code. The only change caused by the rezoning of the Property was to allow offices as permitted uses when they are located within 200 feet of the northerly right-of-way line of Ohio River Boulevard. Specifically, Ordinance 1283 established a new zoning district called Ohio River Boulevard Mixed Use Zoning District (OMU District). The mixed uses included residential and office uses. All residential uses permitted or conditionally allowed in an R-2 District were also permitted or conditionally allowed in an OMU District. Office uses that were not permitted in an R-2 District were thereafter allowed, including: (1) administrative/business/municipal/professional offices; (2) medical treatment facility offices (with limited surgical procedures); and (3) real estate, insurance and travel agencies. Office uses had to be located within 200 feet of Ohio River Boulevard. Borough of Sewickley Ordinance 1283, at 3; Reproduced Record (R.R.) at 344a. That is, office uses were restricted to the 200 feet of the Property which fronts Ohio River Boulevard ( Lower Lots ) and residential uses must be in the rear of the Property, away from Ohio River Boulevard ( Upper Lots ), with frontage on Boundary and Thorn Streets. When adopting Ordinance 1283, Borough Council stated that the Property was an appropriate location for a mixed use zoning district that protects 4

5 the residential nature of Thorne Street but provides for the possibility of office, medical facility and agency uses along Ohio River Boulevard. Borough of Sewickley Ordinance 1283, at 1; R.R. at 342a. Borough Council recognized the benefit of having offices, medical facilities and agencies accessible and located near major roadways. Id. On August 11, 2010, Lyons filed an appeal to the Board challenging the validity of Ordinance 1283 on the ground that it constituted spot zoning. 1 MCM and the Borough filed motions to quash which the Board denied. On March 31, 2011, the common pleas court reversed the Board and quashed Lyons appeals. Lyons appealed to this Court which vacated the common pleas court's order and remanded the matter to the Board to consider the merits of Lyons' validity challenges. MCM Ventures, Ltd. v. Zoning Hearing Board of the Borough of Sewickley, (Pa. Cmwlth., 759 C.D. 2011, August 10, 2012). The Board held public hearings on February 5, 2013, and March 5, Lyons presented numerous exhibits which he claimed showed residential uses on both sides of the Property. Nancy Watts (Watts), Sewickley Borough Zoning Officer, explained the zoning history of the Property and the various revisions to the zoning maps over the years, and confirmed that the vast majority of zoning districts which allow office uses as permitted uses have frontage along Ohio River Boulevard. Hearing Transcript (H.T.), March 5, 2013, at 132; R.R. at 186a. MCM presented evidence that the Property is surrounded by properties with various zoning 1 Clifford Krey joined in Lyons appeals. 5

6 classifications and include an apartment building, the Sewickley Water Authority, and an office building. H.T. at ; R.R. at 195a-196a. Kevin Flannery (Flannery), Sewickley Borough Manager and Secretary, explained in detail the Joint Comprehensive Plan. He believed the Property provided an opportunity for redevelopment. H.T. at 186; R.R. at 240. MCM presented evidence that construction of residential buildings on the southern portion of the Property that fronts Ohio River Boulevard can only be accomplished at a prohibitive expense. On April 2, 2013, the Board issued a decision and found that Lyons did not meet his burden of establishing that provisions of Ordinance 1283 were arbitrary and unreasonable, and without any relation to the public health, safety, morals, and general welfare. The Board found that although the Property was rezoned, the rezoning was justified because: (1) commercial office buildings will enhance the local tax revenues; (2) MCM will suffer economic hardship if restricted to residential development; and (3) rezoning of the Property to permit office buildings was a natural extension of the office-use in the neighboring community of Glen Osborne. Lyons filed a land use appeal. MCM and the Borough intervened. The common pleas court affirmed the Board and dismissed Lyons appeal. The common pleas court concluded that Lyons did not prove that there was unlawful spot zoning because the surrounding land consists of both residential and office uses. The common pleas court also found that the 6

7 establishment of the OMU District is consistent with the general scheme of zoning in the area. Common Pleas Court Opinion, January 6, 2013, at 3. Lyons now appeals 2 and raises fourteen issues. 3 2 Where the trial court takes no additional evidence, the scope of review is limited to determining whether the Board committed an error of law, abused its discretion or made findings not supported by substantial evidence. Mars Area Residents v. Zoning Hearing Board, 529 A.2d 1198 (Pa. Cmwlth. 1987). 3 The issues presented are as follows: 1. Whether the Court of Common Pleas of Allegheny County erred in concluding that the Zoning Hearing Board correctly found that I did not meet the heavy burden of proving that there is discriminatory spot zoning on the property and in affirming the Board s decision and dismissing my appeal? 2. Whether the trial court erred in concluding that the OMU District is not surrounded entirely by residential land and that the Board correctly concluded that the rezoned OMU District is not being treated unjustifiably different from similar surrounding land? 3. Whether the trial court erred in concluding that the Board correctly found that the establishment of the OMU District is consistent with the general scheme of zoning in the area and that the placement of office uses within 200 feet of Ohio River Boulevard is consistent with the policies of Sewickley? 4. Whether the Board erred in its decision that I did not meet [my] burden of establishing that the rezoning was arbitrary and unreasonable and had no relation of the public health, safety, morals, and general welfare and in denying my appeal? 5. Whether the Board erred in finding that the mixed use zoning of the OMU District does provide for a natural extension of the already existing commercial office uses along Ohio River Boulevard in Glen Osborne? 6. Whether the Board erred and abused its discretion in ignoring the fact that the property at issue here was the only (Footnote continued on next page ) 7

8 (continued ) property rezoned OMU and has no relevant differences from its neighbors and other properties along Ohio River Boulevard? 7. Whether the Board erred in relying on Schubach v. Silver, 336 A.2d 328 (Pa. 1975) and ignoring Appeal of Mulac, 210 A.2d 275 (Pa. 1965) and Schubach v. Zoning Board of Adjustment, 279 A.2d 397 (Pa. 1970). 8. Whether the Board erred in considering commercial and other non-residential uses outside the neighborhood of the property? 9. Whether the Board erred and abused its discretion in finding that the rezoning was consistent with the Joint Comprehensive Plan with Aleppo and Glen Osborne? 10. Whether the Board erred and abused its discretion in finding that the construction of residential buildings on the southern portion of the property can only be accomplished at a prohibitive expense and in seeking to support its decision on that basis? 11. Whether the Board erred and abused its discretion in finding that frontage on Ohio River Boulevard is an undesirable location for residential uses? 12. Whether the Board erred in finding that the property has a long history of being operated for commercial purposes? 13. Whether the Board erred and abused its discretion in finding and seeking to support its decision on the grounds that the development of the property in accordance with the permitted uses would result in significant increase in various tax revenues? 14. Whether the Board in ignoring the facts that the purpose of the July 29, 2010, zoning amendments was to give the owner of the property the same benefits as certain variances granted to him in 2009 which were on appeal, the rezoning created an island with different dimensional requirements than the surrounding (Footnote continued on next page ) 8

9 Challenges to the Validity of Zoning Ordinance A zoning ordinance is presumed valid and one challenging the constitutionality of an ordinance bears the burden to overcome that presumption. The challenging party must clearly establish that the ordinance provisions are arbitrary and unreasonable and have no relation to the public health, safety, morals and general welfare and if the validity is debatable the legislative judgment is allowed to control. Schubach v. Silver, 336 A.2d 328 (Pa. 1975) ( Schubach II ). Spot zoning has been defined by the Supreme Court of Pennsylvania as: A singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment. Appeal of Mulac, 210 A.2d 275, 277 (Pa. 1965). An ordinance cannot create an island of more or less restricted use within a district zoned for a different use or uses where there are not differentiating relevant factors between the island and the district. Schubach II, 336 A.2d at 336. The most important factor in an analysis of a spot zoning question is whether the rezoned land is being treated unjustifiably different from similar surrounding land. Schubach II, 336 A.2d at 336. (continued ) properties, and the rezoning adversely affects the neighboring properties? Appellant s Brief, Statement of Questions Involved at

10 Spot zoning must be clearly established; if the validity of the rezoning ordinance is debatable, it must be permitted to stand. Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114, 1121 (Pa. Cmwlth. 2014) (quoting Atherton Development Co. v. Township of Ferguson, 29 A.3d 1197, 1204) (Pa. Cmwlth. 2011). Lyons Arguments Lyons contends that Ordinance 1283 constituted unlawful spot zoning as defined in Mulac. He argues the purpose of Ordinance 1283 was only designed to give effect to the Board s Decision to grant MCM the variance it requested. He contends that the Board did not consider the public s health, safety and welfare or morals. The Property was singled out for commercial zoning, which is different from the surrounding properties even though those properties were physically indistinguishable from it in character. He suggests that the rezoning of the Property from R-2 to OMU was done for a nefarious reason solely for the economic benefit of MCM. As a result of the rezoning, the Property became a commercial island having no relevant differences from its residential neighbors. In support of and at the heart of these arguments is Lyons underlying assertion that the Property is totally surrounded by residentially-zoned land. Lyons specifically takes issue with the Board s Finding of Fact No. 16 which provides: The Borough of Glen Osborne property to the east of the Property, across Boundary Street is zoned C-1-Commercial. This Borough of Glen Osborne property was previously zoned LP-Limited Professional, which had permitted uses that included medical and professional offices. 10

11 Lyons contends that this finding is erroneous because the surrounding properties are residential. He points to a zoning map of Sewickley which shows that both lots across Ohio River Boulevard to the south of the western portion of the Property are zoned R1-A Single Family Residential. He also points to the west of the Property where the land is zoned R-2 Multi-Family Residential, and east of the northern portion of the Property where the land in Glen Osborne is zoned R-2, Single Family Detached. This Court has reviewed the record and finds that the Board s Finding of Fact No. 16 is supported by substantial evidence presented by MCM at the hearings, namely the zoning maps. While residential properties are located around the OMU District, there are also properties located to the east and southeast of the Property which are zoned C-1 Commercial and LP-Limited Professional. Commercial uses and office uses are located all along the Ohio River Boulevard corridor 4, including, in that particular area surrounding the OMU District: Sewickley Water Works, Sewickley Veterinary Hospital, Critmore Office Building, and Osborne Plaza which houses Child Health Association of Sewickley, Norwest Mortgage, and Fleming Financial Services. The nature of the area is such that office and commercial uses are peppered all along Ohio River Boulevard. Contrary to Lyons portrayal, this is not a situation where there is a residential neighborhood with a commercial island in the middle. The Property is located on a major thoroughfare. 4 Ohio River Boulevard is a four-lane state highway which connects the communities along the Ohio River from Pittsburgh to Beaver County. It is the largest and most heavily traveled road in Sewickley and contains a substantial number of office, business, commercial and industrial uses. H.T. 3/5/13 at ; R.R. 243a-244a. It is undisputed that the Sewickley Country Inn had exits onto Ohio River Boulevard. 11

12 Watts, whom the Board credited, identified the uses allowed on the land surrounding the OMU District. She explained that the land east of the southern portion of the Property directly across Boundary Street in Glen Osborne was zoned LP-Limited Professional which allowed medical and other office uses. The Critmore Office Building occupies this land. Watts testified as follows: Q. And there is also a district called the LP [Limited Professional] Zoning District? A. Yes, there is. Q. And where is that located? A. It s located by Boundary Street and Ohio River Boulevard across the street from the Country Inn [Property]. Q. So, it s directly across the street from the OMU District, Zoning District, in Sewickley, is that correct? A. That is correct. **** Q. And is the LP District offices the Critmore A. Correct. Q. --office building or offices? And are those offices still there? A. They are. H.T. 3/5/13 at ; R.R. at Watts also explained that the Glen Osborne C-1 Commercial District, which allows multiple commercial uses and other office uses, is located along Ohio River Boulevard and has always been located catty-corner across Ohio River Boulevard from the OMU District. Id. 12

13 Accordingly, Lyons is incorrect when he asserts that the OMU District is only surrounded by residential uses. And, his view that Ordinance 1283 created a commercial island in the middle of a residential neighborhood is not borne out by the record. This is critical. The record clearly demonstrates that commercially zoned properties are located directly to the east and southeast of the Property along Ohio River Boulevard. The Property actually adjoins another property zoned LP-Limited Professional which contains a medical office. The record supports the Board s conclusion that the Property is surrounded by a combination or mix of residential, office and commercial uses. The Board concluded that the creation of the mixed use OMU District was appropriate as a natural extension of the permitted office uses on the adjacent lot and along almost all of the southern side of Ohio River Boulevard. The Board found that the OMU District transitions those office uses along Ohio River Boulevard into the residential uses on the northern portion of the Property and protects the residential nature of Thorn Street. In Schubach II, our Supreme Court rejected a validity challenge based on spot zoning. There, a four-acre tract of land was rezoned from R-4 residential use to C-2 commercial use. Directly across from one of the streets that bordered the subject property was a previously existing commercial use. The Supreme Court found that rezoning the property commercial was a natural extension of the surrounding commercial uses. The Court also recognized that the rezoning created a transition zone between the residential and commercial uses and thus promoted the orderly development of the community. Schubach, II, 336 A.2d at

14 Lyons argues that the Board erroneously relied on Schubach II, because the controlling precedent was the Supreme Court s prior decision in Schubach v. Zoning Board of Adjustment of Philadelphia, 270 A.2d 397 (Pa. 1970), (Schubach I). In Schubach I, the Supreme Court found a classic instance of spot zoning where the property was rezoned from residential to commercial, and the property was surrounded by lots zoned residential and the property did not differ from the neighboring properties either by location or topography. This Court agrees with the Board that this dispute is similar to the facts in Schubach II. Here, the OMU District is directly across the street from land which is zoned to permit office uses. The OMU District treats the Property similarly to the surrounding land by combining the residential and office uses permitted on those surrounding lands. Office uses are restricted to an area within 200 feet of Ohio River Boulevard. The OMU District is not unjustifiably treated differently from surrounding land because there is no island of more or less restricted uses within a district zoned for different uses. Schubach II. Lyons attempts to distinguish Schubach II and argues that the rezoned land in Schubach II consisted of six contiguous parcels in separate ownership bordered on three sides by commercial zoning. However, neither a need for multiple parcels nor a need for commercially zoned land on multiple sides of the rezoned property was cited by the Supreme Court as a requirement to defeat a claim of spot zoning. Lyons has cited no other authority for his contention that a natural extension may only exist where at least two sides of the subject property are bounded by the use to be extended. 14

15 Lyons next argument concerns the Joint Comprehensive Plan which the governing bodies of Sewickley, the Borough of Glen Osborne, and the Township of Aleppo adopted in February of Lyons contends that one factor the courts must consider in determining spot zoning is how the rezoning relates to the applicable comprehensive plan. In re Appeal from Fayette County Ordinance No. 83-2, 509 A.2d 1342 (Pa. Cmwlth. 1986). Specifically, Lyons argues that the rezoning violated the Joint Comprehensive Plan because the plan going forward was that the Property would remain R-2 multi-family residential dwelling. The commitment of Sewickley Township to participate in a joint comprehensive plan with Aleppo and Glen Osborne was to preserve our residential areas. This Court does not agree with Lyons that preventing redevelopment of all residentially-zoned land was an objective of the Joint Compressive Plan. The Joint Comprehensive Plan defined a series of land use recommendations for the development and conservation of land. One of the three goals for land use and housing was to [m]aintain the character of residential neighborhoods and non-residential areas in areas of new development and redevelopment. Joint Comprehensive Plan at 1-13; R.R. at 373a. With respect to areas of redevelopment, the Joint Comprehensive Plan provided that [w]here opportunities for redevelopment exist, reconstruction of these areas shall seek to respect the characteristics of surrounding residential and/or non-residential development. Joint Comprehensive Plan at 1-28; R.R. at 375a. 15

16 Demolition of the Sewickley Country Inn provided an opportunity for redevelopment. Borough Council recognized the benefit of having office uses easily accessible and located near major roadways. The majority of zoning districts which permit office uses in Sewickley and Glen Osborne are located along Ohio River Boulevard. Ordinance 1283 recognized that Ohio River Boulevard was a proper location for office uses. Ordinance 1283 s provision for mixed residential and office uses took into account the characteristics of the existing surrounding residential and non-residential development along Ohio River Boulevard. It was consistent with the Joint Comprehensive Plan. Next, Lyons asserts that the Board erred when it relied on evidence that office buildings would generate additional tax revenues because a municipality does not have the power to rezone to increase its tax yield. Putney v. Township of Abington, 108 A.2d 134 (Pa. Super. 1954). This argument also lacks merit. Putney stands for the proposition that municipalities do not have the power to enact zoning laws for the sole or principal purpose of producing tax revenues. Putney, 108 A.2d at 137. Here, there is no evidence that Ordinance 1283 was enacted for the sole or principal purpose of generating tax revenues. Lyons next contends that the Board erred by concluding that MCM may have financial hardship constructing residential buildings on the southern portion of the Property which fronts Ohio River Boulevard. He argues that MCM did not testify that it could not construct houses or apartments on the lower half of the Property or that there was no market for them. Rather, MCM s complaint was that it would make more money on office buildings. 16

17 Lyons argues that rezoning may not be for the purpose of bestowing an economic benefit on the landowner or reducing his or her losses or expense of to accommodate the plans of one landowner. In re Realen Valley Forge Greenes, 838 A.2d 718 (Pa. 2003); In re Fayette County Ordinance No. 83-2, 509 A.2d 1342, 1346 (Pa. Cmwlth. 1986) ( in our opinion, the rezoning was not enacted to enhance the public s health, safety, morals and general welfare, but rather was enacted to accommodate the plans of one landowner. ) This Court is not convinced by these arguments. First, this Court was unable to locate in the record where MCM argued that it would make more money on office buildings. Instead, it was MCM s position that construction of residential uses along Ohio River Boulevard was undesirable given the nature of the busy, highly trafficked four lane highway. Second, the fact that a rezoning is done at the request of the landowner, does not, in and of itself, invalidate the rezoning. Schubach II, 336 A.2d at 337; Takacs Indian Lake Boro. v. Zoning Hearing Bd., 11 A.3d 587 (Pa. Cmwlth. 2010). Any landowner requesting that his property be rezoned is likely doing so for its own benefit. That a landowner may benefit if its request is granted does not alone invalidate the rezoning. This Court has held that [t]he state of mind of the legislative body in enacting a zoning ordinance is irrelevant to a determination of its validity. Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 201 (Pa. Cmwlth. 2009). The legislation must stand or fall on its own terms. Again, the test is whether the rezoning is arbitrary and unreasonable and unrelated to the public s health, safety, welfare and morals. Schubach II. Lyons failed to meet his burden. Substantial evidence supported the Board s conclusion that the zoning treatment of the Property was justified by the road 17

18 frontage and the mix of surrounding uses and that the rezoning was consistent with surrounding mixed residential and commercial uses. Ordinance 1283 logically confined office uses to the portion of the Property which was easily accessible from Ohio River Boulevard, while residential uses were situated in the rear of the Property in close proximity to other residential areas. Next, Lyons contends that the Board s Findings of Fact Nos. 7 and 9 were not supported by substantial evidence. Finding of Fact No. 7 stated: The Property has a long and unique history of being operated for commercial purposes as an inn, hotel, or motel with related facilities. (Emphasis added.) Lyons asserts that it was not until the 2011 Zoning Code, that motel/hotel was listed as a commercial use. Prior to that, it was listed as a residential use where it belonged. Lyons Amended Brief at 14. First, this Court does not believe that the Board s Finding of Fact No. 7 is of such significance as to warrant a reversal of the Board s decision. In any event, Lyons contention is without merit. The Board s use of the word commercial was not a reference to the zoning category the Property was in prior to August 15, Rather, the word commercial described the nature of the business of operating a hotel/motel. Regardless of the use category, a hotel/motel is commercial. It is entered into for the purpose of making money or earning a profit. It is not residential. Finding of Fact No. 7 correctly describes the purpose for which the inn, hotel or motel was operated. 18

19 Lyons next challenges Finding of Fact No. 9 which provides: The construction of residential buildings on the southern portion of the property that fronts Ohio River Boulevard can only be accomplished at a prohibitive expense. Lyons contends that there was no evidence to support this conclusion because the Board relied on its opinion in a different case i.e., the Board s November 3, 2009, Decision on MCM s variance request. Lyons argues findings in a particular case are not evidence in another case. Callery v. Municipal Authority of Blythe Township, 243 A.2d 385 (Pa. 1968). This contention is without merit. At the February 5, 2013, Hearing before the Board on his Validity Challenge to Ordinance No. 1283, Lyons, himself, asked the Board to move into evidence the Board s November 3, 2009, Decision. So that the record is clear. I ask the Board to take into evidence the following: First, the Board s decision of November 3, 2009, and the appeal No Hearing Transcript, February 5, 2013, at 40; R.R. at 63a. (Emphasis added.) Lyons has waived any objection to its being relied upon by the Board as a source of evidence by not properly raising it before the Board. Green v. Green, 69 A.3d 282 (Pa. Super. 2013). Even if the issue was preserved, the Board s Decision in the related variance case was binding on Lyons via the doctrine of collateral estoppel. Collateral estoppel applies where the fact or facts at issue in both instances were identical, that the fact or facts were essential to the first judgment, and that these 19

20 facts were actually litigated in the first proceeding. Schubach II, 336 A.2d at 334. A salient fact at issue before the Board in the variance proceeding and the validity challenge was whether the construction of residential buildings on the southern portion of the Property could only be accomplished at a prohibitive expense. A positive determination of this question was essential for the grant of the variance in the prior proceeding, and this question was actually litigated with Lyons appearing in opposition to the variance. The Board was, therefore, correct when it relied on its prior finding in the related variance decision. Lyons has failed to overcome the presumption that Ordinance 1283 was valid and meet his heavy burden of proving Ordinance 1283 was arbitrary or unreasonable and that it bore no relation to the public health, safety, morals, and general welfare. There was substantial evidence to support the decision of the Board. The order of the common pleas court is affirmed. BERNARD L. McGINLEY, Judge 20

21 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael M. Lyons, : Appellant : : v. : : Zoning Hearing Board of the : Borough of Sewickley : : v. : : MCM Ventures, Ltd : : v. : : No. 178 C.D The Borough of Sewickley : O R D E R AND NOW, this 26 th day of January, 2015, the order of the Court of Common Pleas of Allegheny County in the above-captioned case is hereby AFFIRMED. BERNARD L. McGINLEY, Judge