Opinion
No. 1969 C.D. 2012
06-19-2013
DigEntGrp, LLC and Michael E. Kerr, Appellants v. West Nantmeal Township Zoning Hearing Board and West Nantmeal Township
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this zoning appeal, DigEntGrp, LLC and Michael E. Kerr (Kerr) (collectively, Applicant) ask whether the West Nantmeal Township Zoning Hearing Board (ZHB) erred in denying Applicant's requests for several variances from, and a special exception under, the West Nantmeal Township Zoning Ordinance of 2010 (zoning ordinance). Applicant argues the ZHB erred in denying the requested zoning relief. Upon review, we affirm.
I. Background
In 2004, Kerr, the sole owner of DigEntGrp, LLC, purchased a 0.4628-acre parcel for $6,000 at a tax sale. Thereafter, in 2010, Kerr purchased an adjoining parcel comprised of 0.479 acres at a tax sale for $3,000. The parcels are located near the intersection of Lippitt and Killian Roads in West Nantmeal Township (Township), Chester County. The parcels lie in the Township's Rural Residential Zoning District (R-2) as well as the Wetlands and Hydric Soil Overlay District.
Section 403(A) of the zoning ordinance sets forth the purpose of the Rural Residential (R-2) Zoning District as follows:
(A) Purpose: The R-2 Zoning District generally contains areas with existing agricultural, woodlands, stream valleys and rural residential uses. The purpose of the R-2 Zoning District is as follows:
(1) To accommodate the continuation of agriculture as a land use within West Nantmeal Township.
(2) To preserve and enhance ecologically fragile and aesthetically valuable environments of West Nantmeal Township. Specific environmental features to be preserved and enhanced include, but are not necessarily limited to streams, stream valleys, watercourses, floodplains, wetlands, groundwater, steep slopes, woodlands, scenic vistas, and scenic corridors.
(3) To permit development of a type and density, which will have minimal adverse impacts upon the natural features and the surrounding properties.
(4) To provide a clearly defined limit between residential uses, densities and developments within West Nantmeal Township.
The zoning ordinance at issue here became effective on August 22, 2010. As of that date, Applicant owned one parcel and the other, adjoining parcel was owned by a different individual.
Applicant now seeks to merge the two parcels and develop the resulting combined lot with a single-family detached dwelling. However, soil conditions on the property are not suitable for a typical on-site septic system. As a result, Applicant seeks to utilize an evapotranspiration (ET) sewage system, which requires construction of a "greenhouse" as an accessory building to house the system.
An evapotranspiration system uses a combination of direct evaporation and plant transpiration for effluent disposal. Reproduced Record (R.R.) at 147a. The ET system requires the use of low flow plumbing fixtures inside the home, an aerobic treatment tank and specifically modified passive solar greenhouse beds where the wastewater is eliminated through the process of evapotranspiration. R.R. 145a. An ET system is used for a building site that cannot support any other type of soil absorption based septic system. See R.R. 147a.
Applicant's proposed single-family dwelling is 1200 square feet. The proposed greenhouse is 1800 square feet. Reproduced Record (R.R.) at 12a. Applicant proposes to locate the greenhouse in front of the front façade of the dwelling. Id.
A single-family detached dwelling is a permitted use in the R-2 district; however, the combined lots do not meet the two-acre minimum lot size requirement set forth in the zoning ordinance. Also, at its widest, the combined lot would be 168.53 feet, while the required minimum lot width is 200 feet in the R-2 district.
In June 2011, Applicant applied for variances from, and a special exception under, the zoning ordinance. Specifically, Applicant initially applied for variances from Sections 602(B) (requiring single-family detached dwellings to be located on a conforming lot) and 403(E) (requiring a minimum net lot area of two acres and a minimum lot width of 200 feet for single-family detached dwellings). Alternatively, Applicant sought a special exception under Section 1108 to allow construction of a single-family detached dwelling on a non-conforming lot.
Applicant later amended its application to seek variances from the following additional zoning ordinance provisions: Section 503(E) (no on-lot sewage disposal system shall be located within 50 feet of the Wetlands and Hydric Soil Overlay District); Sections 505(C) and (D) (requiring a property owner to obtain a permit in order to clear trees from an area in excess of 10% of the gross lot area); Section 803.1(A)(2) (where a residential lot contains a permitted residential dwelling unit, no more than 30% of an accessory structure shall extend or protrude into the front yard or in front of the front façade of the principal residential building); and, Section 803.1(A)(6) (the footprint of all accessory buildings shall not be larger than the footprint of the principal building; accessory buildings for agricultural uses are exempt from this requirement).
The ZHB held a hearing at which Kerr testified and presented the testimony of a professional land surveyor and a soil science and septic systems expert. The Township appeared and presented one documentary exhibit, but did not present any witnesses.
After the hearing, the ZHB voted to deny all of Applicant's requested relief. The ZHB later issued findings of fact and conclusions of law in support of its decision. Applicant appealed to the Court of Common Pleas of Chester County (trial court), and the Township intervened.
Without taking additional evidence, the trial court affirmed. This appeal by Applicant followed.
Because the parties presented no additional evidence after the ZHB's decision, our review is limited to determining whether the ZHB committed an abuse of discretion or an error of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). The ZHB is the fact-finder here. Id.
II. Discussion
Initially, we note, this Court may not substitute its interpretation of the evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). It is the function of the ZHB to weigh the evidence before it. Id. The ZHB is the sole judge of the credibility of witnesses and the weight afforded their testimony. Id.
A. Contentions
Applicant first argues the central finding made by the ZHB to support its denial of the requested relief is that Kerr did not provide evidence that the proposed ET system will be safe and will not adversely affect the health, safety or welfare of residences or property owners within the general neighborhood. ZHB Op., 11/17/11, Finding of Fact (F.F.) No. 21; Concl. of Law No. 2. Applicant contends this finding presumes Kerr had the burden to prove the safety of the ET system. While Applicant did present evidence regarding the safety of the ET system, Applicant asserts that such evidence was not required because a determination as to the method of sewage disposal for a property is within the exclusive jurisdiction of the Pennsylvania Department of Environmental Protection (DEP). See Stewart v. Zoning Hearing Bd. of Radnor Twp., 531 A.2d 1180 (Pa. Cmwlth. 1987). Applicant argues the ZHB erred in denying relief based on the proposed method of sewage disposal where DEP approved that method.
Applicant also asserts the ZHB found the soil conditions on the property are not suitable for any soil-based on-site sewage disposal system. It contends the ZHB erred in denying relief because this unique physical condition of the property precludes its reasonable development and essentially deprives Applicant of any beneficial use of the property. See Appeal of Towamencin Twp., 42 A.3d 366 (Pa. Cmwlth. 2012) (soil conditions on property created unnecessary hardship justifying grant of variance).
Applicant maintains the record reveals it met its burden of proving entitlement to the special exception and dimensional variance relief requested. Applicant points out that case law recognizes an undersized lot as a unique physical circumstance for variance purposes. N. Pugliese, Inc. v. Palmer Twp. Zoning Hearing Bd., 592 A.2d 118 (Pa. Cmwlth. 1991). Also, this Court recognizes entitlement to a variance where two undersized lots are combined. See N. Bethlehem Neighbors Grp. v. City of Bethlehem Zoning Hearing Bd., 822 A.2d 840 (Pa. Cmwlth. 2003).
In response, the Township argues the ZHB did not err in denying Applicant's request for a special exception under Section 1108 of the zoning ordinance where Applicant did not meet the zoning ordinance's specific, objective criteria for this special exception. In addition to not proving compliance with the objective criteria, the Township maintains, Applicant did not prove compliance with the general special exception criteria in Sections 1207(A) and (D) of the zoning ordinance.
The Township further maintains the ZHB did not err in denying the requested variances. In order to build a single-family home and greenhouse, Applicant needed at least five variances. Applying established principles regarding variances, the Township contends, the ZHB correctly determined Applicant did not prove entitlement to variances from the zoning ordinance's minimum lot size and lot width requirements. Specifically, Applicant did not prove it could not use the property for other uses permitted in the R-2 district, including forestry. Indeed, on cross-examination, Kerr admitted he never explored whether the property could be used for any other permitted uses.
The Township points out that Applicant argues other permitted uses in the R-2 district are unsuitable because they also require a minimum lot size that exceeds the size of the property. However, the Township contends, this argument ignores the fact that the zoning ordinance allows, by right, forestry, municipal uses or public utilities on lots less than two acres. See Section 403(B) of the zoning ordinance. Thus, the Township asserts, Applicant did not prove unnecessary hardship justifying the grant of a variance from the lot size requirements.
The Township also argues the ZHB properly denied Applicant's request for a variance from Section 803(A)(2) to permit the accessory greenhouse to be located in the front yard, in front of the dwelling. To that end, Applicant's professional surveyor, Kristopher Phillips, explained the location of the home and the greenhouse could be "swapped" to place the greenhouse behind the home. R.R. at 65a. Based on this testimony, Applicant did not prove the physical features of the property are unique and that based on such features it was impossible to comply with Section 803(A)(2) and place the greenhouse behind the home.
Finally, the Township asserts the ZHB properly denied Applicant's request for a variance from Section 803(A)(6) to permit the footprint of the accessory greenhouse to exceed the footprint of the single-family home because it was not the minimum variance that would afford relief. Applicant's witnesses admitted the size of the greenhouse is dictated by the number of bedrooms in the home. Specifically, Applicant's surveyor testified the size of the home could be reduced which would, in turn, reduce the size of the greenhouse. R.R. at 65a. Because Applicant did not prove the variance from Section 803(A)(6) is the least possible modification of the zoning ordinance's requirements, the ZHB also properly denied this variance.
B. Analysis
At the outset, Applicant is correct that the ZHB's decision contains several flaws. Regardless of these flaws, however, as set forth below, no error is apparent in the ZHB's ultimate denial of Applicant's variance and special exception requests.
For example, in its discussion, the ZHB stated, "Applicant purchased the land at a price [$9,000] that assumes construction is impossible and, therefore, did not suffer hardship. See, Ryan, Pennsylvania Zoning Practice, Section 6.2.13, Example 2."
Contrary to the ZHB's statement, in Manayunk Neighborhood Council v. Zoning Board of Adjustment of City of Philadelphia, 815 A.2d 652 (Pa. Cmwlth. 2002), this Court set forth the following analysis regarding a claim of self-inflicted hardship:
While older cases explain the 'purchaser with knowledge' concept ... more recent cases recognize that where hardship arises from intensity of restriction, the right to relief runs with the land. Unless the hardship arises from the purchase itself, as where the purchase price was too dear, transfer of the property does not create the hardship. Thus, pre-purchase knowledge of zoning restrictions limiting development, without more, does not create a hardship.
1. Variances
Before the ZHB, Applicant sought several variances. Specifically, as an alternative to its special exception request, Applicant sought variances from the minimum lot size and lot width requirements as well as a variance to permit construction of a single-family home on a nonconforming lot. See Sections 403(E), 602(B) of the zoning ordinance.
In addition, Applicant sought variances: to allow the proposed ET system and greenhouse to be located within 50 feet of the Wetlands and Hydric Soil Overlay District (the ET system would actually lie within the overlay district); to allow greater than 30% of the accessory greenhouse to protrude into the front yard or in front of the front façade of the principal residential dwelling; and, to allow the footprint of the accessory greenhouse to exceed the footprint of the proposed principal dwelling use. See Sections 503(E), 803.1(A)(2), 803.1(A)(6) of the zoning ordinance.
At the hearing, Applicant appeared to withdraw its requests for variances from Sections 505(C) and (D) of the zoning ordinance (requiring a permit where a property owner seeks to clear greater than 10% of the trees on his property). R.R. at 55a-56a. Also, Kerr testified Applicant no longer requires a variance from Section 803.1(A)(7) of the zoning ordinance (maximum height of an accessory structure shall not exceed 25 feet). R.R. at 35a-36a.
Further, in the Statement of the Case section of its brief, Applicant asserts in one sentence at the end of a footnote that, following the ZHB hearing, it determined it could relocate the accessory greenhouse behind the proposed residence so as to obviate the need for a variance from Section 803.1(A)(2) of the zoning ordinance (where a residential lot contains a permitted residential dwelling unit, no more than 30% of an accessory structure shall extend into the front yard or in front of the front façade of the principal building).
As is evident from Applicant's statement, it did not raise this issue before the fact-finder; therefore, it is waived. In re Kreider, 808 A.2d 340 (Pa. Cmwlth. 2002) (where parties do not request that common pleas court hear additional evidence, any issues or arguments not raised before the ZHB cannot be raised for the first time to common pleas and are waived). This is particularly true in light of the fact that this statement involves a deviation from the plot plan Applicant submitted to the ZHB without proof of what any revised plot plan would entail.
Pursuant to Section 1206(D) of the zoning ordinance, the ZHB may grant a variance provided all the following findings are made where relevant in a given case:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such condition, and not circumstances or conditions generally created by the provisions of this [z]oning [o]rdinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this [z]oning
[o]rdinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.Id.; see also Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC).
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance as granted by the [ZHB] is the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Section 910.2 of the Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10910.2.
Here, in denying the requested variances, the ZHB determined, "Applicant[] [has] failed to show hardship ...." Concl. of Law No. 4. It also determined Applicant did not prove the variances were the minimum that would afford relief. F.F. No. 19; ZHB Op. at 9. Further, the ZHB found that other permitted uses in the R-2 district include forestry, conservation uses and agricultural uses. F.F. No. 17.
a. Variance from Wetlands and Hydric Soil Overlay District Regulation
Applicant first argues the ZHB erred in denying its request for a variance for its proposed ET sewage system and accessory greenhouse. Specifically, Applicant's proposal necessitates a variance from Section 503(E) of the zoning ordinance, which states: "No on-lot sewage disposal system ... shall be located within 50 feet of the Wetlands and Hydric Soil Overlay District." In turn, Section 202 of the zoning ordinance defines an "On-Lot System" as: "A sewage disposal system which collects, conveys, treats and disposes of sewage or holds sewage from only one (1) dwelling, principal use or lot." Here, Applicant seeks to locate its ET sewage system within the Wetlands and Hydric Soil Overlay District.
Section 503(A) of the zoning ordinance sets forth the purpose of the Wetlands and Hydric Soil Overlay District as follows:
(A) The Wetlands and Hydric Soil Overlay District shall be a conservation overlay to the underlying zoning districts of West Nantmeal Township. The purpose and objective of the Wetlands and Hydric Soil Overlay District Overlay District is outlined as follows:
(1) To direct growth, development and revitalization efforts by considering environmentally sensitive land areas and ecological habitats.
(2) To sustain a high quality natural resource system and to protect a natural diversity of ecosystems.
(3) To provide aquatic habitats, which are essential breeding, rearing and feeding grounds for many species of fish, plants and other wildlife.
(4) To develop a protective zone to serve as a natural filter in the removing of pollutants such as bacteria, acid and sediment from groundwater and surface water.
(5) To implement an effective hydrological and stormwater management program that adequately addresses surface drainage, groundwater recharge and soil erosion control measures[.]
(6) To implement Best Management Practices.
(7) To implement the recommendations concerning natural features, conservation management and land use, as outlined within the West Nantmeal Township Comprehensive Plan.
Without analysis, Applicant argues the variance from Section 503(E) is a dimensional variance. However, Applicant's request in this regard is more akin to a use variance than a dimensional variance because no on-lot sewage system is permitted in the overlay district in which Applicant seeks to locate its on-lot ET sewage system and accessory greenhouse. See, e.g., Segal v. Zoning Hearing Bd. of Buckingham Twp., 771 A.2d 90 (Pa. Cmwlth. 2001) (nursing home's variance request to fill wetlands in order to construct access road was not a request for a dimensional variance, but rather was subject to standard for use variances). Cf. SPC Co., Inc. v. Zoning Bd. of Adjustment of City of Phila., 773 A.2d 209 (Pa. Cmwlth. 2001) (where applicants sought variance to erect sign within buffer zone in which signs were not permitted, variance properly characterized as use variance) (citing Rollins Outdoor Adver. v. Zoning Bd. of Adjustment, 529 A.2d 99 (Pa. Cmwlth. 1987)).
In the context of use variances, unnecessary hardship is established by evidence that: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property has no value for any purpose permitted by the zoning ordinance. SPC Co.
While Applicant claims that application of Section 503(E) "sterilizes" the property, see Appellants' Br. at 11, uses permitted by right in the R-2 district include "forestry." See Section 403(B) of the zoning ordinance, Matrix Chart 2. Here, Kerr testified the entire property is wooded. R.R. at 36a. Contrary to Applicant's current assertion that the property does not satisfy the required minimum lot area for forestry, the zoning ordinance lists the minimum lot area for forestry as "Variable." See Section 403(E) of the zoning ordinance, Matrix Chart 2.
In its brief, Applicant claims it is "patently obvious" that it cannot use the property for forestry because of its small size (slightly less than an acre), and the fact that the zoning ordinance requires a 50-foot setback and a reforestation plan. Appellants' Br. at 20. Despite these assertions, Applicant simply did not persuade the fact-finder that it could not use the property for another permitted use, forestry. See, e.g., Appeal of Cross, (Pa. Cmwlth., Nos. 2331, 2332 C.D. 2011, filed November 5, 2012) (unreported) (Pellegrini, P.J.) (landowners were not entitled to variances to build single-family homes where zoning board determined landowners could use properties for other permitted uses, including forestry and agriculture, and landowners did not persuade the zoning board otherwise). This is not surprising given that Applicants' entire proof on this point was limited to Kerr's lay testimony that forestry is not economically feasible because: "That's a one time deal." R.R. at 53a.
Similarly, Applicant did not present evidence that the property can be conformed for a permitted use only at a prohibitive expense or that the property has no value for any purpose permitted by the zoning ordinance. Thus, no error is apparent in the ZHB's denial of a variance from Section 503(E) of the zoning ordinance.
In a footnote, Applicant asserts "[t]he prohibition on location of an on-site septic system within 50 feet of [the Wetlands and Hydric Soil Overlay District] only makes sense when applied to a soil-based on-site system. The location of the treatment in a building does not pose the same risk to hydric soils as might a soil-based system." Appellants' Br. at 11, n.2. Applicant's assertion on this point is contrary to the plain language of the definition of an "On-Lot System" in Section 202 of the zoning ordinance set forth above. Applicant makes no attempt to explain how its interpretation of the zoning ordinance is consistent with the plain language of the definition of an "On-Lot System." As such, we reject Applicant's argument on this point.
Nevertheless, Applicant cites this Court's recent decision in Towamencin Township for the proposition that soil conditions on a property can constitute unnecessary hardship justifying the grant of variance relief. Here, it argues, the ZHB found soil conditions on the property are not suitable for any in-ground septic system, thereby justifying the need for a variance for the proposed ET sewage system.
In Towamencin Township, we upheld the grant of a dimensional variance from, among other things, a zoning ordinance's height requirement to allow a landowner, who operated a farm on his property, to construct a newer, larger silo for crop storage. We explained the zoning board granted the dimensional variance in order to sustain the reasonable, pre-existing use of the property, and the record supported the zoning board's finding that the landowner would suffer unnecessary financial hardship absent the grant of the variance. Specifically, soft, moist soils native to the property prevented the landowner from continuing to store crops in "hag bags." Id. at 373. We determined substantial evidence supported the zoning board's finding that this storage method threatened the continued viability of the farm necessitating construction of the newer, larger silo. Id.
Applicant's reliance on Towamencin Township is misplaced for several reasons. First, in Towamencin Township, we specifically rejected an argument that the variance relief sought was in the nature of a use variance rather than a dimensional variance. In so doing, we stated, "the silo's increased dimensions will not reach into a buffer zone or a district that ... does not permit agricultural use." Id. at 371. Here, unlike in Towamencin Township, Applicant's proposed ET system and accessory greenhouse would, in fact, be located in an overlay district that prohibits an on-lot sewage disposal system.
Further, unlike in Towamencin Township, the fact-finder here determined Applicant did not prove unnecessary hardship justifying the grant of a variance, and the record supports that determination. Also, unlike the landowner in Towamencin Township, here Applicant does not require a variance in order to ensure the continued viability of a pre-existing, permitted use. In fact, as explained above, an alternative, permitted use of the property exists.
Based on our determination that Applicant did not prove unnecessary hardship entitling it to a variance from Section 503(E) of the zoning ordinance, we need not address Applicant's argument that the ZHB erred in determining Applicant did not prove the proposed ET system would not adversely affect the public health safety or welfare of property owners in the general neighborhood based on Stewart v. Zoning Hearing Board of Radnor Township, 531 A.2d 1180 (Pa. Cmwlth. 1987) (zoning board lacked jurisdiction over applicant's chosen method of sewage disposal where method was approved by Department of Environmental Protection).
b. Variances for Location/Size of Accessory Greenhouse
In addition, as to the requested variances from the zoning ordinance's regulations on the size and location of the accessory greenhouse, the ZHB determined the variances sought did not represent the least modification possible and were not the minimum that would afford relief. It stated (with emphasis added):
Insofar as the variance requests are concerned ... Applicant has failed in many instances to show that the variances requested are the minimum variances that will afford relief and will represent the least modification possible of the regulation in issue. These include the selected size of the house to be one with three bedrooms and the configuration of the lot to provide excessive infringement into the front yard beyond the primary building facade by the proposed accessory structure.ZHB Op. at 9. The record supports the ZHB's determinations.
Specifically, before the ZHB, counsel for the Township questioned Applicant's land surveyor regarding the plot plan for Applicant's proposal. When asked if he played a part in determining the location of the greenhouse, Applicant's surveyor testified Applicant "wanted [the greenhouse] to be basically placed in the farthest west position we could put it. So I put it right up against the setback lines." R.R. at 64a. When asked if any consideration was given to the zoning ordinance's requirement that an accessory building be located behind the front façade of the principal building, Applicant's surveyor testified, "It was not discussed." R.R. at 65a.
Additionally, Applicant's surveyor agreed that Applicant could reduce the size of the greenhouse and "shift" the position of the dwelling and the greenhouse in order to meet the requirement that an accessory structure be located behind the front façade of the principal structure. R.R. at 66a. Also, when asked if there would be sufficient sunlight for the greenhouse if the positions of the dwelling and the greenhouse were "flip-flopped," Applicant's soil science expert responded, "I don't see that there's an advantage to one versus the other." R.R. at 81a.
Based on this testimony, we discern no error in the ZHB's determinations that Applicant did not establish that the variances requested were not the minimum that would afford relief and did not represent the least modification possible of the restrictions at issue.
Further, we reject Applicant's argument that the requirement that the footprint of the accessory greenhouse shall not exceed the footprint of the principal dwelling does not apply here based on an exemption in Section 803.1(A)(6) of the zoning ordinance for agricultural buildings. The exemption states: "Accessory buildings for agricultural uses shall be exempt from this requirement." Id. (emphasis added). Here, Applicant's proposed principal use is a single-family residence, not an agricultural use. Thus, the proposed greenhouse is not an accessory building for an agricultural use. As such, we disagree with Applicant that the exemption applies here. See Section 202 of the zoning ordinance (defining "Accessory building or structure" as: "A building or structure subordinate to the principal building or principal structure on a lot and used for purposes customarily incidental to those of the principal use.") (Emphasis added).
Also, contrary to Applicant's assertions, it is not clear the greenhouse is, in and of itself, an "agricultural use." See Section 202 of the zoning ordinance (defining "Agriculture (General)" as "[t]he cultivation of the soil and the raising and harvesting of the products of the soil, including but not limited to nursery, horticulture, forestry and animal husbandry. ..."). Despite Applicant's argument below, the ZHB made no finding that the proposed greenhouse, which Applicant seeks to erect and use solely in connection with the sewage disposal system for its proposed dwelling, qualifies as an "agricultural use," and, is therefore, exempt from Section 803.1(A)(6)'s requirement regarding the footprint of the buildings. We discern no error in this regard.
c. Minimum Lot Size Requirements
1. Special Exception
Applicant also sought a special exception under Section 1108 of the zoning ordinance to allow construction of a single-family home on a nonconforming lot. That Section provides:
Section 1108: Nonconforming Lots of Record
In any district in which single-family detached dwellings are permitted, a single-family detached dwelling may, as a special exception, be erected on any single lot of record at the effective date of this [z]oning [o]rdinance notwithstanding limitations imposed by other provisions of this [z]oning [o]rdinance. Such lot must be in a single and separate ownership and not have continuous frontage with other lots in the same ownership.
This provision shall apply even though such lot fails to meet all the lot and area requirements of the district.
Id.
Thus, in order to obtain a special exception, Applicant had to show: (1) it proposed to erect a home on a "single lot of record" at the effective date of the zoning ordinance; (2) the lot is in "single and separate ownership"; and, (3) the lot does not have continuous frontage with other lots in the same ownership.
The zoning ordinance defines "single and separate ownership" as "[t]he ownership of a lot by one or more persons, whereas the ownership is separate and distinct from that of any adjoining land areas." Section 202 of the zoning ordinance.
Here, the zoning ordinance became effective August 22, 2010. As of that date, the two lots now owned by Applicant, which Applicant seeks to treat as one combined lot, were not a "single lot of record." Rather, Applicant owned one lot (parcel ID #23-7-8.4), but, as Applicant concedes, it did not purchase the second, adjoining lot (parcel ID #23-7-8.4A) until after the effective date of the zoning ordinance. Appellants' Br. at 6, 14 n.3.; R.R. at 43a, 112a, 124a-25a. Thus, the property at issue, which Applicant seeks to treat as one lot, was not a "single lot of record" at the effective date of the zoning ordinance, rendering Section 1108 inoperative here.
2. Variances
As an alternative to its special exception request, Applicant asserts it is entitled to variances from the zoning ordinance's minimum lot size and width requirements. Applicant correctly cites our decision in North Pugliese for the proposition that:
An undersized lot constitutes the physical circumstances which may entitle one to a variance provided the other variance criteria are met. ... [W]here a lot is too small to conform with the minimum lot area requirements, and cannot be made to conform by merging lots or by re-subdividing a larger tract, enforcement of the ordinance would sterilize the land, creating the necessary hardship which will justify the granting of a variance.Id. at 121 (emphasis added) (citations omitted); see also N. Bethlehem Neighbors Grp. Thus, as to the minimum lot size requirements, Applicant is correct that the undersized nature of its property constitutes a physical circumstance that would entitle Applicant to variance relief from the zoning ordinance's minimum lot size requirements, provided the other variance criteria are met. Here, however, the ZHB found Applicant did not satisfy the remaining variance criteria.
Applicant also argues the requirement in Section 602(b) of the zoning ordinance that all single-family detached dwellings be located on a conforming lot should be deemed unenforceable and invalid because: (1) it conflicts with Section 1108 which allows erection of a single-family detached dwelling on a nonconforming lot by special exception, and (2) it interferes with the ZHB's authority to grant variances under the MPC and the zoning ordinance itself. It appears Applicant is correct that Section 602(B) conflicts with Section 1108. However, as discussed throughout this opinion, Applicant did not prove entitlement to a special exception under Section 1108 or its right to variances from several other provisions of the zoning ordinance that are required for Applicant to carry out its proposal. Thus, we need not definitively resolve this issue here.
To that end, Section 1206(D)(2) of the zoning ordinance requires a variance applicant to prove that "because of [the property's] physical circumstances ... there is no possibility that the property can be developed in strict conformity with the provisions of this [z]oning [o]rdinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property." See also Section 910.2(a)(2) of the MPC.
Further, this Court holds that, in determining whether an applicant satisfied the requirements for a dimensional variance, all compliant uses of the property must be considered, not just the particular use that the owner prefers. Twp. of Northampton v. Zoning Hearing Bd. of Northampton Twp., 969 A.2d 24 (Pa. Cmwlth. 2009); Yeager v. Zoning Hearing Bd. of City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001). "A variance may be granted only upon proof that a substantial burden attends all dimensionally compliant uses of the applicant's property ...." Twp. of E. Caln v. Zoning Hearing Bd. of E. Caln Twp., 915 A.2d 1249, 1254 (Pa. Cmwlth. 2007) (emphasis added).
Here, the ZHB's supported finding reveals Applicant did not prove a substantial burden attends all dimensionally compliant uses of the property. As set forth above, the ZHB found uses permitted by right in the R-2 district include forestry. Thus, Applicant did not persuade the ZHB that a substantial burden attends this dimensionally compliant use. As a result, we discern no error in the ZHB's denial of the variances from the zoning ordinance's minimum lot size requirements.
Applicant relies on our decision in North Bethlehem Neighbors Group for the proposition that it is entitled to variance relief because the zoning ordinance's lot size restrictions "sterilize" the property given its undersized nature. However, that case is distinguishable.
In North Bethlehem Neighbors Group, the applicant, Wawa, agreed to purchase two undersized, nonconforming lots. It sought to construct a convenience store on the resulting combined lot. The proposal required a use variance as well as a variance from the minimum lot size requirement. The zoning board granted the requested variances, and the common pleas court affirmed. On further appeal, we upheld the grant of the variances. As to the hardship that justified the grant of the use variance, this Court explained the zoning district in which the property was situated was created to consolidate surrounding properties with a large office complex formerly owned by Bethlehem Steel, but the consolidation never occurred. Thus, Wawa's property, which was the only remaining undeveloped property in the zoning district, could never be developed in accordance with the regulations, and it was not possible to develop the property for a permitted use. As to the variance from the lot area requirement, we stated the undersized nature of the property, which could not be brought into compliance by merging lots or subdividing a larger tract, rendered compliance with the ordinance impossible, and enforcement of the ordinance would sterilize the land. We also rejected the argument that the property could be used for another permitted purpose because the zoning ordinance did not permit the suggested use.
Here, unlike in North Bethlehem Neighbors Group, the ZHB found that other uses permitted by right in the R2 district include forestry. Thus, the undersized nature of the property here does not sterilize the land. While Applicant asserts its property is too small to allow for forestry use, it simply did not convince the ZHB on this point or prove that its property could not be used for any other permitted use. Thus, North Bethlehem Neighbors Group is distinguishable.
For all the foregoing reasons, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 19th day of June, 2013, the order of the Court of Common Pleas of Chester County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge
Id.
Id. at 657 (citations omitted); see also Solebury Twp. v. Solebury Twp. Zoning Hearing Bd., 914 A.2d 972 (Pa. Cmwlth. 2007).
In Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 936 A.2d 1061 (2007), our Supreme Court agreed with this Court's formulation of the self-inflicted hardship analysis in Manayunk. Essentially, the Court restricted the concept to a situation where the purchase price is too dear, the owner allowed the property to deteriorate, or where the transfer itself caused the hardship. Thus, pre-purchase knowledge of zoning restrictions, without more, does not create hardship. Id.; see also Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa. Cmwlth.), appeal denied, 613 Pa. 673, 34 A.3d 834 (2011).