Opinion
No. 367 C.D. 2011
06-15-2012
Rita Del Greco and Robert Del Greco, Jr., husband and wife v. Zoning Hearing Board of the Borough of Whitehall v. Scott R. Schaming and Lisa M. Schaming, husband and wife, Appellants
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Scott R. Schaming and Lisa M. Schaming, his wife, (together, Appellants) appeal from the January 31, 2011, order of the Court of Common Pleas of Allegheny County (trial court) reversing the order of the Zoning Hearing Board (ZHB) of the Borough of Whitehall (Borough) to grant Appellants three variances pertaining to the construction of a governor's drive and a garage. We affirm.
Appellants own property at 134 Club Drive East, in an R-1 District in Whitehall, Pennsylvania. Club Drive East is a narrow, dead-end street with no cul-de-sac. Homes are situated on the west side of the street, opposite a golf course. Appellants' property, the next to last on the block, is a double lot, 160 feet wide and 250 feet deep, and Appellants' home - a single family two-story dwelling with a two-story addition - lies in the middle. Appellants' existing driveway runs to the rear of the property; it is 30 feet wide and predates the ordinance provision restricting driveway width to 24 feet. Appellants requested variances from Borough ordinance provisions related to a proposed governor's drive and a proposed 3-car garage. Robert Del Greco, Jr., and his wife Rita Del Greco (Objectors) live next door to Appellants and appeared at the ZHB hearing to oppose the grant of the variances.
Appellants sought to construct a governor's drive having a first access from the existing 30-foot curb cut and a second access with a curb cut of 24 feet, and they sought a variance from the ordinance provision restricting the second street access of a governor's drive to 12 feet in width. In support of their request, Appellants testified that public works vehicles, emergency vehicles, and delivery vehicles use their existing driveway and/or front yard for turning around due to the narrowness of the street and the fact that a decorative planted area opposite the last home on the street discourages use of that driveway. Appellants stated that they requested a variance to allow the second access to the drive, closest to the end of the street, to be 24 feet instead of 12 feet wide in order to provide easier access and turning for these other vehicles. According to Mr. Schaming, they also wanted to allow room for vehicles with lifts and other types of transit that might be needed in the future as Mr. Schaming's mother gets older. Mr. Schaming noted that the ordinance allows driveways to be 24 feet wide and thus would allow them to construct a governor's drive that was 24 feet wide all the way to the curb cut, and he opined that narrowing the drive for the last several inches did not make much sense.
In relevant part, Ordinance section 180.106.1 states as follows:
All parking surfaces shall be constructed in accordance with the following:(R.R. at 91.)
* * * *
The residential access shall be a single curb cut and shall not have a width greater than twenty-four feet (24').
In the case of a residential governor's drive, one (1) additional access may be established that is not greater in width than 12 feet (12'), and the two accesses shall be connected with a continuous pavement.
Appellants also requested two variances related to the proposed construction of a 3-car garage above a recently completed basement-level family room addition. Appellants use their existing integral garage to store six bikes, a lawnmower, paint, tools, and toys; at some point they may change it into a room. As proposed, Appellants' "minor" garage would have 1100 square feet and an external height of 19.5 feet, but the applicable ordinance provision limits the floor space to be used for the storage of vehicles to 750 square feet and limits the external height to 15 feet. Appellants conceded that they could build the garage within the ordinance limitations. However, they stated that the ordinance when written did not consider the larger size of current vehicles, such as their Suburban, or the number of vehicles that families with teenage drivers have. They also explained that the height as proposed was intended by architects to keep the garage from looking like an addition. Finally, Appellants asserted that a public sewer easement in the rear yard prevents them from constructing a garage further back in the yard in line with others in the neighborhood. Objecting to the variances, Objectors explained that the proposed garage would not be set back like all the others in the neighborhood but instead would be right next to the middle of their backyard, 7½ feet from where they eat and entertain.
The Del Grecos challenged the issuance of the building permit for the family room addition and the ZHB affirmed. On March 8, 2011, the trial court reversed the ZHB's decision and sustained the Del Grecos' appeal. Pursuant to a Motion for Reconsideration filed by Appellants, on April 5, 2011, the trial court vacated its March 8th order to allow the parties time to amicably resolve their dispute.
The Ordinance defines a minor garage as either a one-story building or an integral part of a dwelling that is used for storage of motor vehicles as an accessory purpose to the use of the lot and states that a "Minor Garage shall not exceed the door height of eight feet, an external height of 15 feet, and a floor area of 750 square feet." (R.R. at 90.)
With respect to the proposed governor's drive, the ZHB determined that the narrowness of the street and the lack of a cul-de-sac or turnaround created a unique hardship affecting Appellants' property. The ZHB further found that granting the variance would not alter the essential nature of the neighborhood or impair the use of adjacent property and that, since the lot has 160 feet of frontage, widening the second access to 24 feet would have virtually no impact on the neighborhood. The ZHB also concluded that the relief requested would be the minimum necessary to afford relief and would represent the least modification possible of the regulation at issue. Accordingly, the ZHB granted a variance from the 12 foot width limitation for the second access to the governor's drive.
With regard to the proposed three-car garage, ZHB members recognized that the ordinance allows Appellants to construct an addition as large and as high as they proposed if they did not use the top floor as a garage. The ZHB also observed that most of the neighboring properties, including Objectors' property, have detached minor garages in the rear yard that have nonconforming second stories and exceed 15 feet in height. The ZHB determined that the sewer easement created a unique hardship and that the grant of the requested variances would not detrimentally impact the neighborhood.
Accordingly, the ZHB granted the variances, and Objectors appealed to the trial court. The trial court concluded that Appellants were not entitled to the variances because they did not establish the following criteria: 1) unique physical conditions exist that are peculiar to the property and cause unnecessary hardship; 2) because of the physical conditions there is no possibility of developing the property in conformity with the ordinance and a variance is necessary to enable reasonable use of the property; 3) the unnecessary hardship has not been created by the applicant; 4) the grant of a variance would not be detrimental to the public welfare; and 5) the variance is the minimum variance that would afford relief. Section 910.2(a) of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2(a).
Regarding the governor's drive, the trial court cited Sweeney v. Zoning Hearing Board of Merion Township, 674 A.2d 1190 (Pa. Cmwlth. 1996), and noted that the "uniqueness" requirement is intended to distinguish problems that generally affect an entire area from those specific to a particular property. The trial court observed that, whereas the ZHB found that the narrowness of the street and absence of a cul de sac constituted a unique hardship affecting Appellants' property, there are 16 other properties affected by the same conditions. The trial court also noted Mr. Schaming's admission that the driveway could be constructed in conformity with the ordinance.
With respect to the proposed garage, the trial court concluded that Appellants failed to establish unnecessary hardship, where Mr. Schaming testified that they could build the garage in conformity with the ordinance requirements and could use and sell the house if the variances were denied. Relying on Larsen v. Zoning Hearing Board of City of Pittsburgh, 543 Pa. 415, 672 A.2d 286 (1996), the trial court observed that the mere desire to provide more room for a family's enjoyment does not satisfy the unnecessary hardship required for a variance.
Accordingly, the trial court reversed the grant of the variances, and Appellants appealed to this Court.
In appeals from the denial of a variance, where the trial court has not taken additional evidence, our scope of review is limited to determining whether the zoning hearing board abused its discretion or committed an error of law. Eighteenth and Rittenhouse Associates v. Zoning Board of Adjustment, 364 A.2d 973 (Pa. Cmwlth. 1976).
Appellants contend that the ZHB properly granted a variance from the 12-foot width limitation for a second access to a governor's drive and permitted an exit width of 24 feet because Appellants established a right to a variance and the requested variance was de minimis. In making this argument, Appellants first assert that the curb cut width limitations are intended to preserve room for on-street parking. They next calculate the ratio of allowed total curb width for driveways (36 feet) to the standard minimum lot frontage (80 feet), which results in 55% of the average property reserved for on-street parking. Applying the same calculation to their double lot, Appellants note that the total proposed access widths (30 feet + 24 feet) relative to their frontage (160 feet) would render only 33% of their frontage unavailable. Appellants further argue that the addition of a 24-foot wide access on the double lot will have virtually no impact on the neighborhood. Finally, because the ordinance allows driveways to be 24 feet wide, Appellants contend that narrowing the final inches of the driveway for a curb cut is not sensible and that the relief they seek requires only a de minimis variance.
Objectors respond that the ZHB erred in granting the variance related to the governor's drive because Appellants failed to establish any hardship unique to the property where they conceded that the driveway could be built in conformity with the ordinance and where the narrowness of the street affects all neighboring properties. We agree.
With respect to Appellants' reliance on the size of their double lot, Objectors correctly point out that the governor's drive ordinance provision applies to all residential lots in the Borough regardless of the zoning district and minimum lot size. As previously noted, the criteria for the grant of a variance include the requirement to demonstrate that unique physical conditions peculiar to the landowner's property cause unnecessary hardship. Section 910.2(a) of the MPC, 53 P.S. §10910.2(a); Laurento v. Zoning Hearing Board of West Chester, 638 A.2d 437 (Pa. Cmwlth. 1994). Accordingly, where, as here, a property owner's hardship arises from the impact of zoning regulations on the entire district and is not due to unique physical characteristics peculiar to his property, the owner has not established the requisite unnecessary hardship to justify the grant of a variance. Id. Moreover, the "de minimis" doctrine is an extremely narrow exception to the heavy burden of proof that a party seeking a variance normally must satisfy. King v. Zoning Hearing Board of the Borough of Nazareth, 463 A.2d 505 (Pa. Cmwlth. 1983). The exception may be applied where only minor deviation from the ordinance is sought and rigid compliance with the ordinance is not necessary to protect the public interests as intended by the ordinance. Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900 (Pa. Cmwlth. 1996). Here, Appellants' de minimis argument focuses on the small length of property that would be affected but ignores the fact that the 12-foot deviation in width they seek is not a minor deviation but, rather, represents a 100% difference from the ordinance's provisions.
We note that the trial court did not address this issue, but Objectors do not argue that it is waived. --------
Appellants also argue that the ZHB properly granted them variances from the 750-square-foot maximum space limitation and the 15-foot height limitation applicable to a minor garage (R.R. at 9) because a variance is not necessary to permit construction of an 1100 square-foot garage over an attached family room addition. Appellants maintain that the dimensional requirements of the ordinance apply only to free-standing garages or to integral garages that are used only as garages. According to Appellants, the limitation cannot be applicable to an addition that includes living space and a garage, as they propose. Stated otherwise, they contend that the area and height limitations for a "minor garage" should not apply because Appellants are building their minor garage above a family room addition.
However, the ordinance defines a "minor garage" as either a one-story building OR an integral part of a dwelling used for storage of motor vehicles as an accessory use; there is no language indicating, as Appellants assert, that the integral garage referred to excludes integral garages that are over or under space used for any other purpose. Appellants now try to frame the argument as if they seek permission for a two-story addition to a dwelling that included a garage above living space. However, the first story, the basement family room, has been separately permitted. Moreover, because Appellants admitted that they could build the garage in compliance with the ordinance, Appellants failed to establish unnecessary hardship entitling them to variances from the ordinance provisions governing the dimensions of a minor garage. Section 910.2(a) of the MPC, 53 P.S. §10910.2(a); Larsen (holding that property owners were not entitled to a variance where their land could be used as a residential dwelling absent the deck for which they sought a variance because they failed to establish that the variance was necessary for the reasonable use of their land).
Alternatively, Appellants argue that the matter should be remanded to the ZHB to make findings as to whether the proposed deviation from the maximum height limitation is de minimis and/or to consider granting a variance from the 750 square-foot maximum area provision, with a condition that the area reserved for vehicles be limited to 750 square feet. However, Appellants have conceded that they can comply with the ordinance and the record establishes that there is no hardship underlying their requests.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 15th day of June, 2012, the order of the Court of Common Pleas of Allegheny County, dated January 31, 2011, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge