Opinion
No. 52 MAP 2021
04-28-2022
Ruth L. KNEEBONE v. ZONING HEARING BOARD OF the TOWNSHIP OF PLAINFIELD and Patrick Lutz and Pamela Lutz Appeal of: Patrick Lutz and Pamela Lutz
Gary Neil Asteak, Esq., for Appellants. Thomas M. Caffrey, Esq., Lehigh County Department of Law, James Lee Zulick, Esq., Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, for Appellee Zoning Hearing Board of the Township of Plainfield. Theodore R. Lewis, Esq., Lewis & Walters, Easton, for Appellee Ruth L. Kneebone.
Gary Neil Asteak, Esq., for Appellants.
Thomas M. Caffrey, Esq., Lehigh County Department of Law, James Lee Zulick, Esq., Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, for Appellee Zoning Hearing Board of the Township of Plainfield.
Theodore R. Lewis, Esq., Lewis & Walters, Easton, for Appellee Ruth L. Kneebone.
ORDER
PER CURIAM
AND NOW, this 28th day of April, 2022, because the participating Justices are unable to reach consensus on the merits of the question as to which the Court granted allowance of appeal, the order of the Commonwealth Court is AFFIRMED by operation of law.
Former Justice Saylor did not participate in the consideration or decision of this matter.
JUSTICE MUNDY, in support of affirmance
We allowed appeal to consider whether the Commonwealth Court correctly applied its standard of appellate review relative to the grant of a dimensional zoning variance.
Appellants, Patrick and Pamela Lutz ("Homeowners"), own a single-family, detached home on a half-acre lot along Kesslersville Road in Plainfield Township, Northampton County. The property is located in a farm and forest district under the township's zoning code. Single-family dwellings are permitted in that district but, per the zoning code, they are subject to setback requirements – namely, 50 feet for the front and back yards, and 20 feet for the side yards.
Homeowners decided to add onto the back of their home. The design called for an addition to extend to the building envelope in the back – that is, to 50 feet shy of the rear property line – with a raised, covered deck extending 18 feet into the rear setback area. When Homeowners submitted their plan to the township for approval, the zoning officer sent them written notice that the deck would not be allowed because it intruded into 50-foot setback area. He observed Homeowners could seek relief from the zoning hearing board (the "Board") in the form of a dimensional variance. The officer noted dimensional variances must meet the requirements of the zoning code. See Plainfield Twp. Zoning Code § 27-804.5.C. Those requirements are substantively identical to the ones contained in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (the "MPC"), which lists five prerequisites for a variance:
Act of July 31, 1968, P.L. 805, No. 247 (as amended 53 P.S. §§ 10101 -11202 ). The MPC is enabling legislation authorizing municipalities to enact and enforce zoning regulations. See Wilson v. Plumstead Twp. Zoning Hearing Bd. , 594 Pa. 416, 936 A.2d 1061, 1064 (2007) ; see also 53 P.S. § 10105 (relating to the MPC's purposes).
(a) The board shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant.
... The board may grant a variance, provided that all of 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 conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance 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 the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(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, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Homeowners submitted a dimensional-variance application to the Board, indicating their house was built in the 1960s on a non-conforming lot which was not part of any development, and it is adjacent to a large tract of open farmland to the rear with no structures nearby. The Board held hearings in September and October 2018.
At the September hearing, Homeowners appeared, represented by Attorney Gary Asteak. Attorney Asteak recited that the requested variance was for a covered deck attached to the back of the house and encroaching 18 feet into the 50-foot rear yard, thus leaving a 32-foot setback from the rear property line. He presented the testimony of Adam Pooler, the general contractor for the work on the addition and the deck. Mr. Pooler testified that: the half-acre lot was not created by Homeowners, but was a pre-existing lot that would not have been permitted under the current zoning regulations; the land behind the subject property is a farm consisting of 130 acres; given the size of the property and the design of the addition and proposed deck, he cannot construct the deck and still meet the ordinance's setback requirements; and the submitted design represents the minimum size for the deck to be functional as a covered deck, meaning that Homeowners were seeking the minimum variance that would afford the relief they wanted. He also pointed out that Homeowners used to have an above-ground pool and deck within the rear-yard setback area, that these items had been removed, and that the proposed new, covered deck would not extend as far back as did the pool and the old deck. See N.T., Sept. 11, 2018, at 5-11. When asked if construction of the deck would alter the essential character of the neighborhood, Mr. Pooler opined it would improve the neighborhood because the subject property would have enhanced curb appeal, and this would be unlikely to harm the next-door neighbors. See id . at 10.
At the October hearing, Attorney Asteak presented a topographical survey with a site plan showing the exact lot dimensions, confirming that the addition to the house is wholly within the building envelope, and reflecting that the proposed deck would intrude about 18 feet into the setback area. These documents also showed that Appellee Ruth Kneebone ("Objector"), Homeowners’ next-door neighbor, has a shed located on her property about 19 feet from the rear yard line. See N.T. Oct. 4, 2018, at 3-6. The only persons opposed to the variance were Objector and her son Jeffrey. Due to a medical condition, Objector was unable to speak, so Jeffrey spoke on her behalf.
In his prefatory remarks to the Board, Attorney Asteak portrayed the addition of living space and a covered deck as "bringing the house into the 21st Century on an existing lot." Id . at 4.
At the September hearing, Jeffrey read into the record a letter written by his mother expressing that: she has lived at her current residence since 1965; she strongly agrees with the 50-foot setback requirement for properties in the farm and forest district; constructing improvements within that area appears intrusive to neighboring property owners; houses in the 1960s were small, whereas now larger homes are being placed on relatively small lots; many residents oppose this practice and prefer open space; and granting the requested variance would change the character of her home and rear yard and set a bad precedent. See N.T., Sept. 11, 2018, at 26-28. At the October hearing, Jeffrey testified on his own behalf and repeated many of these sentiments. See N.T., Oct. 4, 2018, at 11-15. On cross-examination, Jeffrey acknowledged that his mother owns a shed behind her house which intrudes approximately 31 feet into the rear setback area of her lot, and that a dimensional variance had to be obtained for its construction many years ago. See id . at 17, 29-31. However, he described the shed as smaller and less prominent than the construction proposed by Homeowners. See id . at 29, 31.
The Board approved the variance by unanimous vote. In its written decision, the Board made a number of factual findings based on the testimony and documents submitted. It observed, initially, that the land immediately behind the subject property is a 130-acre farm, there are no adjacent buildings or dwellings located in that area, and Objector herself has a shed located about 19 feet from the rear of her lot. The Board continued that: in view of the undersized dimensions of the lot in question, compliance with the dimensional requirements for setbacks creates a hardship; although Objector opposed the additions, most of the improvements to which she and her son articulated specific objections are located within the permitted building envelope, and only the deck encroaches into the setback; the structures at issue will be in the center of the property and will meet the zoning ordinance's side-yard setback requirements; the unique physical characteristics – i.e. , having open farmland directly behind the property, coupled with the fact that it is a small lot in a farm and forest district – are sufficient to justify relief; and the 18-foot encroachment into the rear-yard setback will not detrimentally impact the surrounding properties or the character of the neighborhood, particularly because, as noted, the property immediately behind the subject property is a large tract of open farmland. See In re Request for Dimensional Variance , No. 2018-06, Opinion at 8-9 (Plainfield Twp. Zoning Hearing Bd. Nov. 5, 2018) (Findings of Fact Nos. 51-60).
The Board couched its findings in terms of a deck and a patio intruding into the setback, and the parties’ present advocacy is framed in similar terms. The site plan shows the patio as sitting beside the deck and not encroaching any further than the deck into the rear setback area. Objector only took issue with the raised, covered deck, and not the patio, which would be at ground level. See N.T., Oct. 4, 2018, at 6. At the hearing, the patio seemed most relevant to an ancillary discussion about the subject property's impervious surface, which is not at issue in this appeal. See id . at 9-10.
Objector sought review in the common pleas court, which affirmed based on the record made before the Board. The court noted, initially, that where (as here) it does not take additional evidence, the Board is the sole judge of witness credibility and evidentiary weight, and its decision is reviewed for an abuse of discretion. See Kneebone v. Plainfield Twp. Zoning Hearing Bd. , No. C-48-CV-2018-11586, 2019 WL 13131735 (C.P. Northampton June 7, 2019). The court elaborated that the Board acts within its discretion so long as its findings are supported by "substantial evidence," meaning, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id . (quoting Valley View Civic Ass'n v. Zoning Bd. of Adjustment , 501 Pa. 550, 462 A.2d 637, 640 (1983) ).
The court explained, further, that where a dimensional variance is sought the landowner is asking for an adjustment of zoning restrictions so as to use the property in a manner consistent with applicable regulations, and hence, the variance is of lesser moment than when an applicant seeks a use variance – that is, permission to use the property in a manner falling outside such regulations. Thus, the court continued, an assessment of unreasonable hardship is based on a lesser quantum of proof than in the use-variance context and may subsume factors such as: the economic detriment to the applicant if the variance is denied, the financial hardship created by any work necessary to bring the property into strict compliance with zoning requirements, and the characteristics of the surrounding neighborhood. See id . at 9-10 (citing and quoting Hertzberg v. Zoning Bd. of Adjustment of Pittsburgh , 554 Pa. 249, 721 A.2d 43, 47-48, 50 (1998) ). The court then reviewed the hearing testimony in some detail and held that the Board's findings and determinations, including its ultimate decision to grant the variance, were supported by substantial evidence.
The Commonwealth Court reversed. Like the common pleas court, it recited the standard of judicial review applicable to local zoning board decisions, as well as the premise that a more relaxed administrative assessment applies in the first instance to requests for a dimensional variance than for a use variance. See Kneebone v. Plainfield Twp. Zoning Hearing Bd. , No. 807 C.D. 2019, 2020 WL 3866643, at *2-3 & n.2 (Pa. Cmwlth. July 9, 2020) (citing Hertzberg , 721 A.2d at 50 ). It disagreed with the county court, however, on the question of whether substantial evidence supported the Board's conclusion that complying with the dimensional setback requirements imposed a hardship upon Homeowners.
In this respect, the court expressed, initially, that Mr. Pooler's testimony comprised the only evidence of hardship. It acknowledged such testimony supported the concept that the small size of Homeowners’ lot, together with the zoning setback requirements, limited Homeowners’ use of their property. But it did not consider the testimony adequate to demonstrate the type of hardship needed to justify a dimensional variance because, in the court's view, these constraints only interfered with Homeowners’ preferences. See id . at *5 ; see also id . at *3 (expressing that "a conflict between dimensional zoning requirements and a landowner's personal preference regarding property use alone does not create a hardship meriting a variance" (citing Yeager v. Zoning Hearing Bd. of Allentown , 779 A.2d 595, 598 (Pa. Cmwlth. 2001) )). The court indicated that any hardship arising from difficulties of that nature relate to the person and not the property. See id . at *2 ("A variance, whether labeled dimensional or use, is appropriate only where the property, not the person, is subject to hardship." (indirectly citing Szmigiel v. Kranker , 6 Pa.Cmwlth. 632, 298 A.2d 629, 631 (1972) )).
We allowed further appeal to address the following issue as framed by Homeowners:
Did the Commonwealth Court panel abuse its discretion by using an incorrect standard of appellate review and substitute its judgment for that of the trial court and zoning hearing board in reversing the zoning hearing board's grant of a dimensional variance?
Kneebone v. Plainfield Twp. Zoning Hearing Bd., ––– Pa. ––––, 256 A.3d 1089, 1090 (2021) (per curiam ) (brackets removed, some capitalization altered).
Initially, we find Homeowners’ statement of the issue to be imprecise. Although a local zoning board acts within its discretion when finding unnecessary hardship and in deciding whether to grant a variance, see Marshall v. City of Phila. , 626 Pa. 385, 97 A.3d 323, 333 (2014) ; Upper Leacock Twp. Supervisors v. Upper Leacock Twp. Zoning Hearing Bd. , 481 Pa. 479, 393 A.2d 5, 7-8 (1978), appellate review is not a discretionary exercise: it is conducted according to standards set forth by law regarding the degree of deference to be accorded to the judicial or administrative body which, in the first instance, renders the underlying adjudication. See In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1080 (2013). It is helpful for litigants to keep this distinction in mind when framing issues and formulating their advocacy, because review for an abuse of discretion is substantially more deferential than review for legal error. See In re Doe , 613 Pa. 339, 33 A.3d 615, 624 (2011). See generally Francis M. Allegra, Section 482: Mapping the Contours of the Abuse of Discretion Standard of Judicial Review , 13 VA. TAX REV. 423, 462-73 (1994) (describing various standards of judicial review). Where, as here, the litigant's central contention is that the intermediate court utilized an incorrect standard in reviewing a discretionary decision, the claim is, in its central aspect, one of legal error. It thus implicates de novo review of the analysis of that tribunal, while also taking into account the necessity for deferential review of the decision of the agency or court of original jurisdiction. See, e.g. , In re Adoption of Atencio , 539 Pa. 161, 650 A.2d 1064, 1066 (1994). With that said, our consideration is not impeded in the present matter as it is clear that the substance of Homeowners’ complaint is that the Commonwealth Court overstepped its bounds by failing to accord sufficient deference to the Board's determination that they suffered a hardship sufficient to justify relief in the form of a dimensional variance.
Sometimes appellate review involves a mix of standards. For example, trial court decisions to admit or exclude evidence are reviewed for an abuse of discretion, see, e.g. , Commonwealth v. Jordan , 619 Pa. 513, 65 A.3d 318, 325 (2013), but to the extent the ruling is based on the trial court's interpretation of legal authority – such as a rule of evidence, a statute, or the Constitution – that aspect of the decision is reviewed de novo . This type of review can be described within an abuse-of-discretion framework detailing that one way discretion can be abused is through a misapplication of the law. See Commonwealth v. Rogers, ––– Pa. ––––, 250 A.3d 1209, 1215 (2021) (recounting that the trial court excluded evidence per Pennsylvania's rape shield law, noting its decision would be reviewed for an abuse of discretion, and specifying the defendant's contention that that statute was misapplied raises an issue of law subject to de novo review).
Where the common pleas court takes additional evidence in a zoning appeal, the test is whether that court, rather than the zoning board, committed an abuse of discretion or error of law. See Appeal of Volpe , 384 Pa. 374, 121 A.2d 97, 100 (1956).
To the extent the Board, as factfinder hearing the evidence firsthand, assessed witness credibility or resolved conflicts in the testimony, we do not supplant those determinations. See Nettleton v. Zoning Bd. of Adjustment of Pittsburgh , 574 Pa. 45, 828 A.2d 1033, 1041 n.10 (2003). See generally Commonwealth v. Johnson, 659 Pa. 277, 231 A.3d 807, 818 & n.7 (2020). As well, although Homeowners bore the burden of proof before the Board with regard to the prerequisites for a variance, see Appeal of Bilotta , 440 Pa. 105, 270 A.2d 619, 620 (1970), at the appellate level we review the record in the light most favorable to Homeowners, as the prevailing party before the agency, and give them the benefit of all reasonable inferences arising from the proofs adduced. See Cinram Mfg., Inc. v. W.C.A.B. (Hill) , 601 Pa. 524, 975 A.2d 577, 583 (2009) ; Lawrenceville Stakeholders v. City of Pittsburgh Zoning Bd. of Adjustment , 247 A.3d 465, 473 (Pa. Cmwlth. 2021).
As discussed, the Board specifically found, inter alia , that the lot was small for the district it was in, and that in light of its undersized dimensions, strict compliance with the rear-yard setback requirement would create an unnecessary hardship; most of the improvements opposed by Objector were located within the permitted building envelope; the proposed deck will be in the center of the property and comply with all prescribed side-yard distances; and the encroachment into the backyard will not have an adverse effect upon the surrounding properties or the character of the neighborhood. As to the size of the lot and the open character of the farm behind it, the placement and dimensions of the deck, the main structure's inclusion within the building envelope, the compliance with side-yard requirements, and the like, the Board's findings were supported by the testimony and exhibits offered by Homeowners. There is no factual controversy concerning these items. The dispute centers primarily on the question of unnecessary hardship.
Homeowners emphasize the deferential nature of review which applies to zoning board decisions, together with the Hertzberg precept that the litmus for assessing hardship for purposes of entitlement to a dimensional variance is relaxed somewhat as compared with a use variance. They explain an appellate court should only overturn a zoning board's decision where the board abused its discretion or committed legal error. Homeowners recount the various findings made by the Board, including that their lot is undersized for the district and there is open farmland behind them. They maintain these findings are based on substantial evidence which, when viewed as a whole in a light favorable to themselves as the prevailing party, adequately supports the relief granted – and that in concluding to the contrary the intermediate court interposed its own view of the evidence instead of deferring to the findings made by the Board.
Homeowners are correct in highlighting that appellate review in the present context is deferential and limited to whether the Board's findings are supported by substantial evidence and its decision is free from legal error. See Peirce v. Zoning Bd. of Adjustment of Upper Dublin Twp. , 410 Pa. 262, 189 A.2d 138, 141 (1963). Still, as Homeowners acknowledge, any assessment of substantial evidence requires an independent record review, as otherwise a reviewing court could not gauge whether a reasonable mind might accept the proofs as adequate to support the findings reached. See Brief for Appellants at 13; accord Brief for Appellee at 6. To the degree, moreover, that Homeowners suggest the Commonwealth Court's action was improper because it simply disagreed with the judgment of the county court, the argument is not well taken because the intermediate court's disagreement pertained to whether substantial evidence supported the Board's findings, which was well within its appellate standard. See Kneebone , 2020 WL 3866643, at *5 ("[W]e do not agree with the Trial Court's assessment that substantial evidence supports the Board's conclusions."). Finally, a careful review of the Commonwealth Court's opinion does not disclose any instance in which that tribunal sought to displace the Board's credibility determinations or its resolution of conflicting evidence. Accordingly, we conclude that the Commonwealth Court utilized the correct standard in conducting its review of the Board's decision. And for the following reasons, we agree with its ultimate determination that, even when reviewed deferentially, the Board's judgment cannot be sustained.
Contrary to Justice Wecht's suggestion, see Opinion in Support of Dismissal ("OISD") at 725-26, the Commonwealth Court did not dispute the Board's characterization of the lot as "undersized," see Kneebone , 2020 WL 3866643, at *5, and we likewise have no occasion to disagree with that adjective. "Undersized," however, is a colloquial description in the present context; it is not a term used by the MPC, and as such, it carries no legal significance standing alone. The crucial finding on which there was disagreement was whether the size of the lot, combined with the applicable zoning requirements, resulted in an unnecessary hardship. Compare id .with Finding of Fact No. 55. This topic is addressed below.
It may be argued that a strict reading of the question framed by Homeowners does not encompass the intermediate court's application of the review standard, so long as that court correctly identified what it was looking for, i.e. , an abuse of discretion or error of law. In the deferential-review context, however, there is little distinction between failing to afford deference while citing the right standard and doing the same pursuant to a wrong one. Further, it would make little sense for us to affirm the judgment of the intermediate court if we were convinced that the Board did not abuse its discretion, on the sole basis that the Commonwealth Court nominally undertook deferential review. This is so particularly where, as here, the parties have briefed the question. See Lomas v. Kravitz , 642 Pa. 181, 170 A.3d 380, 388 n.10 (2017).
As we read the Board's decision, it was focused largely on the premise, which we accept as supported by substantial evidence, that the variance would not have an adverse impact upon the adjacent properties or the neighborhood as a whole, particularly as the subject property backs up to open farmland with few if any structures nearby. See Findings of Fact Nos. 56, 58, 60. That is a valid consideration, but it implicates only one of the variance prerequisites listed in the MPC and the local zoning law. See 53 P.S. § 10910.2(a)(4) (specifying that the variance may 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"); Plainfield Twp. Zoning Code § 27-804.5.C(2)(d) (same). As quoted above, Section 910.2(a) of the MPC, as well as the counterpart provision of the local zoning code, contain four additional factors all relating in one way or another to the existence of an unnecessary hardship. Thus, beyond the effect on adjacent properties and the neighborhood, the presence and nature of the claimed hardship are critical to whether a variance should be granted. See Wilson v. Plumstead Twp. Zoning Hearing Bd. , 594 Pa. 416, 936 A.2d 1061, 1065 (2007) (explaining the party seeking a variance must show "(1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest" (internal quotation marks and citation omitted)).
These factors require an unnecessary hardship that: (i) stems from the unique physical characteristics of the property which, when combined with the zoning regulations, make it particularly difficult to develop the property in conformity with those regulations; (ii) makes it so that there is no possibility the property can be developed in conformity with the zoning ordinance, and hence, a variance is needed for the reasonable use of the property; (iii) was not created by the applicant; and (iv) would not be alleviated by a variance appreciably more modest in extent than the one requested. See 53 P.S. § 10910.2(a)(1), (2), (3), (5) ; Plainfield Twp. Zoning Code § 27-804.5.C(2)(a), (b), (c), (e).
Initially, we recognize that there is always a tension between the exercise of the state's police powers in the form of land-use restrictions in the public interest, and individual property rights as guaranteed by the constitution. We are also aware that the way these competing interests are balanced in practice can be substantially influenced by the nature of the hardship which must be demonstrated as a precondition for a zoning variance. In light of this reality, courts have at times shifted between strict and lenient standards in response to how their interpretation of the statutory hardship requirement has been applied over time. See, e.g. , Simplex Techs. Inc. v. Town of Newington , 145 N.H. 727, 766 A.2d 713, 717 (2001) (moving to a comparatively lenient standard).
Property rights are guaranteed by several constitutional provisions, including the Declaration of Rights, see Pa. Const . art. I, § 1, the due process requirement, see U.S. Const. amend. XIV, and the prohibition on uncompensated takings, see U.S. Const. amend. V ; Pa. Const. art. I, § 10.
This Court in particular has rejected an overly strict construction, both in use-variance disputes, see Allegheny W. Civic Council, Inc. v. Zoning Bd. of Adjustment of Pittsburgh , 547 Pa. 163, 689 A.2d 225, 228 (1997) (citing Valley View Civic Ass'n v. Zoning Bd. of Adjustment , 501 Pa. 550, 462 A.2d 637, 641-42 (1983) ); Halberstadt v. Borough of Nazareth , 546 Pa. 578, 687 A.2d 371, 373 (1997), and in dimension-variance cases, see Hertzberg , 721 A.2d at 50. For purposes of the present appeal, we need not outline the exact contours of the unnecessary-hardship prerequisite as they apply to a situation like the one under review; but we do believe that, to give meaning to the statutory language appearing in the MPC, property owners must make some showing beyond that their proposed use is reasonable and they cannot build according to their preferences without violating the zoning law. Cf. Krummenacher v. City of Minnetonka , 783 N.W.2d 721, 731 n.13 (Minn. 2010) (explaining that many jurisdictions with a statutory unnecessary-hardship predicate "require that the variance applicant establish real hardship if the variance is denied rather than simply requiring that the applicant show the reasonableness of the proposed use").
The Board, notably, did not address the statutory elements relating to hardship, nor did it acknowledge or draw upon any judicially-expounded standard regarding what must be proved to establish unnecessary hardship under the MPC. It opted, instead, to articulate a single, generalized finding that, "due to the undersized dimensions of the lot, compliance with the dimensional requirements for setbacks creates a hardship relative to the property." Finding of Fact No. 55. The Board's failure to elaborate on the nature and genesis of the hardship is a material omission because this Court has held, in light of the statutory language, that "the hardship must truly be an ‘unnecessary’ one" unique or peculiar to the property, "and not simply a ‘mere’ hardship." Larsen v. Zoning Bd. of Adjustment of Pittsburgh , 543 Pa. 415, 672 A.2d 286, 290 (1996) ; accord MacLean v. Zoning Bd. of Adjustment of Crafton , 409 Pa. 82, 185 A.2d 533, 536 (1962) ; Richman v. Phila. Zoning Bd. of Adjustment , 391 Pa. 254, 137 A.2d 280, 284 (1958).
As we review the record, the only person to testify for Homeowners was Mr. Pooler, Homeowners’ general contractor. His testimony established that, due to the plans for the addition, Homeowners cannot build both the addition and a covered deck behind their house without violating the zoning ordinance. But he did not explain why putting Homeowners to a choice between those two options causes them unnecessary hardship, nor did he provide any other testimony concerning the existence of a hardship. We can understand that a homeowner may prefer both of these items, but this does not constitute the kind of "unnecessary hardship" contemplated by the MPC or this Court's decisions applying that statute. See Kneebone , 2020 WL 3866643, at *5 ("While Pooler's testimony evidences [Homeowners’] preference to build a deck of a certain size, it does not represent substantial evidence of a hardship requiring a variance[.]").
Homeowners’ attorney, as noted, expressed that the proposed improvements, including the covered deck, will serve to update the house to 21st Century standards. See supra note 2. That may be a laudable goal, but it does not imply the kind of hardship which justifies relief from the zoning code. Rather, it suggests that the code might benefit from amendment, which is a task for the township's governing body.
Separately, the Board made two other findings that do not implicate the factors set forth in the zoning ordinance. First, it stressed that Objector had a shed in her own rear-yard setback area. See Finding of Fact No. 52. Absent discrimination (which has not been alleged), this is an equitable concern, but it is not directly relevant under the governing statutory framework. See Richman , 137 A.2d at 284 ; Vito v. Zoning Hearing Bd. of Whitehall , 73 Pa.Cmwlth. 270, 458 A.2d 620, 621 (1983). Second, the Board noted most of the improvements Objector complained about are contained within the building envelope allowed by the zoning law. See Finding of Fact No. 57. That, too, is immaterial as the question before the Board was whether the zoning code's variance prerequisites were satisfied in relation to the portion of the site plan intruding into the setback area.
The question of unnecessary hardship was addressed by this Court in a case with facts nearly identical to those of the present dispute. In Larsen , the property owners purchased a single-family house and later built an addition onto the back of it. They then wanted to build a raised deck attached to the rear of their house so their minor child would have a place to play, as the backyard sloped steeply downward toward a river. Due to the addition, however, the deck would intrude into the rear-yard setback. The local zoning board granted a variance and the common pleas court affirmed. After the Commonwealth Court reversed, the property owners appealed to this Court claiming the intermediate court had exceeded its scope of review. See id . at 287-88. This Court held that the board had erred by failing to consider the legislatively-imposed prerequisites to the grant of a variance, and moreover, there was insufficient evidence of unnecessary hardship. See id . at 289-90. The Court stated:
Here, the Board found that appellants would suffer an "unnecessary hardship" from a denial of the variance because they would be denied the reasonable use of their land if they could not provide a
play area for their child. However, the mere desire to provide more room for a family member's enjoyment fails to constitute the type of "unnecessary hardship" required by the law of this Commonwealth.
Id . at 290 (citing Appeal of Kline , 395 Pa. 122, 148 A.2d 915, 916 (1959) (where the homeowner who suffered from hay fever and asthma wanted to create more living space by enclosing a porch, holding that the circumstances did not reflect the type of hardship contemplated by the zoning law)).
Instantly, to the extent the Board considered the subject property to suffer from a unique hardship due to its small size, we make two observations. First, any such reading of the Board's findings is problematic because the only finding which mentions uniqueness does not expressly connect it with hardship. See Finding of Fact No. 59 ("The Board finds that the unique physical characteristics of having open farmland directly behind the property, coupled with the fact that the lot in question is a small lot of record in the Farm and Forest District, are sufficient unique characteristics to justify relief."). Second, and more important, Larsen ’s focus was on whether being denied the ability to have both an addition and a back deck amounted to a hardship for purposes of the MPC. Its holding was not directly tied to whether the subject lot's size was uniquely small for the district it was in.
Notably, Larsen also clarified that a condition that affects even "a small portion of a district is not sufficiently unique to warrant a variance, but rather should be remedied by re-zoning." Larsen , 672 A.2d at 291 (citing English v. Zoning Bd. of Adjustment of Norristown , 395 Pa. 118, 148 A.2d 912, 914 (1959) ; Walter v. Zoning Bd. of Adjustment , 437 Pa. 277, 263 A.2d 123, 126 (1970) ); cf. Halberstadt v. Borough of Nazareth , 546 Pa. 578, 687 A.2d 371, 373 (1997) ("A neighborhood affected by a general hardship should be rezoned.").
While we need not read the statutory "uniqueness" qualifier in its most literal or restrictive sense, see 53 P.S. § 10603.1 (providing any ambiguity in the text of local zoning laws is to be resolved in favor of the property owner); Bakerstown Container Corp. v. Richland Twp. , 508 Pa. 628, 500 A.2d 420, 421-22 (1985) (same); see also Hunt v. Zoning Hearing Bd. of Conewago Twp. , 61 A.3d 380, 384 n.8 (Pa. Cmwlth. 2013) (observing the uniqueness requirement is substantially relaxed where the property owner is denied any reasonable use by an unduly restrictive ordinance), this is potentially relevant because, while the property is smaller than presently allowed for the district, there is no evidence it is unique in this regard, and an aerial photo included with the architect's drawing that Homeowners submitted to the township discloses a number of other similarly-sized properties along Homeowners’ side of Kesslersville Road. See also N.T., Oct. 4, 2018, at 12 (reflecting uncontradicted testimony, consistent with the aerial photo, indicating the presence of several half-acre lots in the area). With that said, nothing in this opinion should be construed as precluding relief where a new hardship affecting multiple properties is created by some significant change in the neighborhood.
Justice Wecht interprets our reliance on Larsen as amounting to an implicit holding that a lot's comparatively small size due to prior zoning regulations can never, as a matter of law, constitute a hardship. See OISD at 725-26. He criticizes this position on two grounds. First, he notes under Hertzberg , which post-dated Larsen , a lesser quantum of proof is needed to establish hardship in dimensional-variance cases, and he describes our analysis as incomplete without considering the change effectuated by that decision. Id . at 725. Second, Justice Wecht suggests this case may be distinguished from Larsen on the basis that the lot here is "constrained by a bygone zoning scheme" and as a consequence, compliance with the existing setback requirements may create a hardship here where it did not in Larsen . Id . at 726-27. In this respect, he acknowledges a hardship cannot be deemed to arise from "conditions generally created by the provisions of the zoning ordinance," 53 P.S. § 10910.2(a)(1), but he posits the statutory phrase "the zoning ordinance" may signify the current one and not include circumstances or conditions created by prior versions of the zoning code. OISD at 726-27. He therefore discerns a novel issue worthy of this Court's review in a case where it has been raised and preserved, namely, whether a finding that a lot is "undersized" due to a prior zoning code can ever support a finding of unnecessary hardship. See id . at 727 n.4.
We have acknowledged that, post- Hertzberg , a relaxed standard of proof is applied in assessing whether an unnecessary hardship exists. With that said, there must still be some evidence of hardship, and we believe it would stretch the concept of relaxation beyond the breaking point to affirm such a finding on the present record. Notably, the OISD does not hazard even a suggestion of what it might cull from the record to sustain a finding of hardship under Hertzberg leniency. And while the OISD's proposed issue of law may be worth considering at the appropriate juncture, it is hard to see what relevance it has to the present controversy. Contrary to the OISD's suggestion, Homeowners do not raise that specific question, see OISD at 726-27 (referring to "Lutz's novel argument"); id . at 727 (same), which is readily understandable: the only aspect of the prior zoning regulations that has been mentioned by any party or tribunal in this matter is the fact that the lot size conformed with that ordinance – and there is no suggestion the setback requirements were different under the ordinance in effect when the lot was created and when Homeowners purchased it than they are now.
As discussed below, the evidentiary record created by Homeowners established two essential points: (a) building the deck would not significantly affect the surrounding area because the subject property backs up to open farmland; and (b) Homeowners cannot build both an addition and a raised, covered deck without intruding into the setback area. We are not aware of any authority indicating these factors, without more, can support the finding of an unnecessary hardship even under a lenient evidentiary standard. Cf., e.g. , Weinstein v. Zoning Bd. of Appeals of Highland Park , 312 Ill.App.3d 460, 245 Ill.Dec. 208, 727 N.E.2d 655, 658 (2000) (granting a variance to construct an addition intruding into the setback area where the lot was small for the neighborhood and the home was functionally obsolete).
Even assuming, arguendo , that not having a raised, covered deck of the size proposed by Homeowners amounts to an unnecessary hardship, and that it can be considered unique, one of the most conspicuous omissions by the Board was on the question of whether the hardship was self-created. See 53 P.S. § 10910.2(a)(3) (setting forth as an independent requirement for a variance that the hardship was not self-created); Plainfield Twp. Zoning Code § 27-804.5.C(2)(c) (same); POA Co. v. Findlay Twp. Zoning Hearing Bd. , 551 Pa. 689, 713 A.2d 70, 74 (1998) (same). Compare Daley v. Zoning Hearing Bd. of Upper Moreland Twp. , 770 A.2d 815, 820 (Pa. Cmwlth. 2001) (affirming the grant of a variance for additional parking where the need for such parking to make reasonable use of the property was created by changes in the surrounding neighborhood), with Ken-Med Assocs. v. Bd. of Supervisors of Kennedy Twp. , 900 A.2d 460, 466-67 (Pa. Cmwlth. 2006) (denying a variance to allow for more parking where the need for such parking was created by, inter alia , the landowner's own decision to add more offices to the building). The record reflects that the house already on the lot is two stories with a 30-by-60 footprint, and that Homeowners constitute a family of four who have lived there for a number of years. See N.T., Sept. 11, 2018, at 6; N.T., Oct. 4, 2018, at 15. It is undisputed that without the addition, the deck would not extend into the rear setback area, and there were no proofs that the addition was necessary to a reasonable use of the home. See generally N.T., Oct. 4, 2018, at 15 (reflecting Mr. Pooler's testimony that Homeowners comprise a family of four and the addition does not include additional bedrooms). Thus, Homeowners offered no evidence to carry their burden with respect to the third statutory prerequisite for a variance – that the hardship was not self-created. Accord Larsen , 672 A.2d at 291 (indicating the applicants created their own hardship by first building an addition onto their house, thereby rendering it impossible to build a deck that did not intrude into the rear setback area); Brief for Appellee at 17 (concluding that the fact Homeowners cannot "put all these structures within the building envelope is, in fact, a self-created hardship"). See generally Sweeney v. Zoning Hearing Bd. of Lower Merion Twp. , 534 Pa. 197, 626 A.2d 1147, 1152-52 (1993) (finding that the zoning board erred where it made what it believed to be relevant findings but omitted any finding as to one of the MPC's enumerated prerequisites for a variance).
The addition is designed to extend 26 feet toward the rear property line, see N.T., Sept. 11, 2018, at 6, whereas the deck, including its ingress/egress stairway, would only extend around 18 feet in that direction.
We have little doubt that municipal zoning boards are better positioned than reviewing courts to assess local conditions and make reasoned judgments about when circumstances prevailing in their area, combined with strict adherence to local zoning regulations, may give rise to an unnecessary hardship. That is one of the main reasons judicial review of such judgments is deferential. At the same time, a variance by nature authorizes actions inconsistent with legislative restrictions on land use. As a consequence, any such authorization, while allowed by law, must be accomplished in compliance with standards set forth by law. It is at least one function of judicial review to ensure that the local agency's decisional process comports with those standards. Our present review discloses that the Board erred by not predicating the variance on satisfaction of the prerequisites set forth by the MPC and the Plainfield Township Zoning Code, and that to the extent it found unnecessary hardship, such finding was not based upon substantial evidence.
Cf. Huntley & Huntley, Inc. v. Borough Council of Oakmont , 600 Pa. 207, 964 A.2d 855, 866 (2009) (explaining that "the MPC's authorization of local zoning laws is provided in recognition of the unique expertise of municipal governing bodies to designate where different uses should be permitted in a manner that accounts for the community's development objectives, its character, and the ‘suitabilities and special nature of particular parts of the community’ " (quoting 53 P.S. § 10603(a) )).
In sum, we conclude that the Commonwealth Court applied the correct standard of review, and that the Zoning Hearing Board's adjudication granting Homeowners a dimensional variance cannot be sustained.
Justices Todd and Donohue join this opinion in support of affirmance.
CHIEF JUSTICE BAER, in support of reversal
This Court granted allowance of appeal to decide whether the Commonwealth Court applied an incorrect standard of review and substituted its judgment for that of the lower tribunals when it reversed the grant of a dimensional variance. The Opinion in Support of Affirmance ("OISA") answers this question in the negative, holding that the intermediate court applied the correct standard, and accurately concluded that there was an absence of substantial evidence to support the Board's conclusion that an unnecessary hardship existed. I respectfully disagree.
It is well-settled that "the grant of a dimensional variance is of lesser moment than the grant of a use variance," as the "latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation[,]" rather than merely requesting a reasonable adjustment of an ordinance in order to utilize the property in a way that is consistent with the applicable regulation. Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 47 (1998). In fact, in Hertzberg , this Court held that this important distinction entitled courts to employ a more relaxed standard of unnecessary hardship when considering a request for a dimensional variance. See id. at 50 (finding that to "justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood").
Importantly, when, as here, the trial court does not conduct its own independent hearing or receive additional evidence beyond that which was taken before the zoning board, the applicable standard of appellate review is an abuse of discretion. "An abuse of discretion will be found only where the zoning board's findings are not supported by substantial evidence." Id. at 46. See also id. (defining substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion").
Turning to the case sub judice , following two hearings, the Board, by unanimous vote, approved the Lutzs’ request for a dimensional variance. In its written opinion, the Board made a number of factual findings, including that the: (1) Lutzs’ lot is undersized; (2) land immediately behind the Lutz’ property is a 130-acre farm; (3) proposed construction would meet the zoning ordinance's side-yard setback requirements; and (4) 18-foot encroachment into the rear-setback would not negatively impact the surrounding properties or the character of the neighborhood. Given its findings, the Board determined that the Lutzs’ ability to comply with the rear-setback requirement of the zoning ordinance created a hardship, and that granting the Lutzs’ variance request was appropriate because the proposed addition would not be offensive to the surrounding area.
Specifically, the Board found "that due to the undersized dimensions of the lot, compliance with the dimensional requirements for setbacks creates a hardship[ ] relative to th[e] property." In re Request for Dimensional Variance , No. 2018-06, Opinion at 9 (Plainfield Twp. Zoning Hearing Bd. Nov. 5, 2018) (Finding of Fact No. 55); see also id. at 3, ¶9 ("[T]he subject property is a previously existing non-conforming lot, in that it only measures one-half (1/2) acre in area, and therefore, is a smaller lot than what is currently required in the Farm and Forest Zoning District.").
Section 10910.2 of the Pennsylvania Municipalities Planning Code ("MPC") enumerates five factual findings a zoning board must make in order to grant a request for any variance on the basis of unnecessary hardship. Specifically:
The board may grant a variance, provided that all of 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 conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance 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 the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(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, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
53 P.S. § 10910.2(a).
This decision was upheld by the trial court, which found that the Board's decision was supported by substantial evidence of record. As explained in greater detail by the OISA, the Commonwealth Court reversed, criticizing the Board's determination that a hardship existed and disagreeing with the lower court that substantial evidence supported the Board's determination.
Respectfully, I conclude that the Commonwealth Court erred in reversing the Board. As acknowledged by the OISA, "municipal zoning boards are better positioned than reviewing courts to assess local conditions and make reasoned judgments about when circumstances prevailing in their area, combined with strict adherence to local zoning regulations, may give rise to an unnecessary hardship." OISA at 721. Indeed, I believe that local zoning boards should be afforded great deference, given their intimate knowledge of the areas in which these variances are sought. See e.g. Metal Green Inc. v. City of Philadelphia, ––– Pa. ––––, 266 A.3d 495 (2021) (noting that "we have cautioned that reviewing courts are not super boards of adjustment or planning commissions of last resort").
Moreover, as an overarching matter, as discussed above, the Commonwealth Court has supplanted in many instances, including the instant matter, zoning hearing board discretion by errantly substituting its own viewpoint disfavoring zoning variances for the decision of local zoning boards. See e.g. Graybrook v. City of Pittsburgh Zoning Board of Adjustment , 2017 WL 6523000, *5 (Cmwlth Ct. 2017) (unpublished memorandum) (reversing a trial court's affirmation of a zoning hearing board's grant of dimensional variances and finding, inter alia , that although the homeowner wished to renovate his house to make it larger in a way that was not permitted under the zoning ordinance, "[w]ishes and desires alone ... do not give rise to a hardship for dimensional variance purposes") and McEwen v. Zoning Hearing Bd. of Sadsbury Twp., 2016 WL 50855, at *10 (Cmwlth Ct. 2016) (unpublished memorandum) (reversing the grant of a dimensional variance and holding, inter alia , that an owner's desire to maximize the value of his property by adding a dimensionally non-compliant garage was "insufficient to establish an unnecessary hardship warranting the grant of a dimensional variance under the relaxed Hertzberg standard").
Both as a matter of policy and law, the Commonwealth's Court's conduct in this regard supplants both the Legislature and this Court by interpreting unnecessary hardship too narrowly in the context of dimensional variances, ignoring the deferential standard of review under which the local zoning hearing board's decisions should be assessed. See Hertzberg , supra . I believe the Hertzberg decision was aimed at providing more flexibility to zoning hearing boards when assessing whether a dimensional variance is appropriate. Thus, unlike the intermediate court here, I would interpret more broadly what constitutes an unnecessary hardship and respectfully call on the Commonwealth Court to follow the law, which mandates that zoning hearing boards have broad discretion to grant dimensional variances without concern that the Commonwealth Court will engage in plenary review and substitute its judgment inappropriately.
Considering the foregoing, I would hold that it was well-within the Board's discretion to find that the adjustment sought by the Lutzs was warranted under the aforementioned circumstances. Quite simply, the Board's decision, as affirmed by the trial court, was supported amply by the record. Consequently, the grant of the dimensional variance should have been affirmed.
Justice Dougherty joins this opinion in support of reversal.
JUSTICE DOUGHERTY, in support of reversal
I fully join the Opinion in Support of Reversal authored by Chief Justice Baer. I also join the thoughtful analysis of Justice Wecht's Opinion in Support of Dismissal, with the exception of his preferred disposition of dismissal.
JUSTICE WECHT, in support of dismissal
The Opinion in Support of Affirmance ("OISA") compounds into one issue what should be considered two separate questions. First, as a matter of law, can the undersized nature of a property support a finding of unnecessary hardship, which might in turn allow a zoning hearing board to grant a dimensional variance pursuant to 53 P.S. § 10910.2(a) ?1 Second, in the instant case, did the Commonwealth Court misapply its standard of review in reversing the trial court and the zoning hearing board?
Due to a lack of developed advocacy on the first question, I would dismiss this appeal as improvidently granted. Moreover, and regardless of the answer to that first question, the parties’ arguments demonstrate that the second question amounts merely to error review and does not merit consideration by this Court. Cf. Pa.R.A.P. 1114.
I.
The OISA aptly relates the factual context for this dispute, see OISA at 710-14, leaving little need for expansion or clarification. Therefore, I begin with our well-settled standard of review. When neither the trial court nor the Commonwealth Court conducts a hearing or receives additional evidence that was not before the zoning board, our question is whether the board committed an abuse of discretion or an error of law in granting the variance. Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh , 543 Pa. 415, 672 A.2d 286, 288 (1996). An abuse of discretion exists only where the zoning board's findings are not supported by substantial evidence. Id. at 289. Substantial evidence, in turn, is what a reasonable person might accept as adequate to support a conclusion. Oasis v. Zoning Hearing Bd. of S. Annville Twp. , 94 A.3d 457, 461 n.5 (Pa. Cmwlth. 2014) (citations omitted). Courts must view the evidence in the light most favorable to the party who prevailed before the fact-finder, In Re McGlynn , 974 A.2d 525, 534 n.9 (Pa. Cmwlth. 2009) (citations omitted), and the only inquiry is whether there was evidence to support the findings made—not whether the evidence could have supported other findings. Keslosky v. Old Forge Civil Serv. Comm'n , 73 A.3d 665, 671 (Pa. Cmwlth. 2013) ; see also Taliaferro v. Darby Twp. Zoning Hearing Bd. , 873 A.2d 807, 811 (Pa. Cmwlth. 2005).
Here, Patrick and Pamela Lutz’ contractor, Adam Pooler, conveyed to the Plainfield Zoning Hearing Board ("the Board") that the lot at 5735 Kesslersville Road in Nazareth was undersized, due to outdated zoning regulations. See Notes of Testimony ("N.T."), 9/11/18, at 10 (opining that the Lutzes’ property occupied a "[p]re-existing lot that would not be permitted today"). The Commonwealth Court held that Pooler's testimony did not "convert [the Lutzes’] preference [for a deck of a certain size] into a hardship or substantial evidence thereof." Kneebone v. Zoning Hearing Bd. of the Twp. of Plainfield , 2020 WL 3866643 at *5 (Pa. Cmwlth. 2020). The panel did not "agree [with the trial court] that Pooler's testimony ... established that the size and configuration of the [lot] created a hardship requiring the granting of a dimensional variance." Id.
The OISA upholds that decision, finding that "the Board erred by not predicating the variance on the satisfaction of the prerequisites set forth by the MPC and the Plainfield Zoning Code" and adds that, "to the extent it found unnecessary hardship, such finding was not based upon substantial evidence." OISA at 721. Following the Commonwealth Court's lead, the OISA again invokes both available justifications for reversal—(i) as a matter of law, the OISA concludes that undersized lots are not themselves hardships within the meaning of the MPC and (ii) even if they were, the OISA finds that there was a lack of substantial evidence here to support such a conclusion. Because neither opinion flatly concludes that the Board committed either an abuse of discretion or an error of law to the exclusion of the other, I consider the grounds for both.
In light of our precedent, I would hold that the Commonwealth Court exceeded its scope of review to the extent that it found that Pooler's testimony did not constitute substantial evidence of the lot being undersized. The intermediate panel was limited to determining whether that testimony, considered in the light most favorable to Lutz, see McGlynn , 974 A.2d at 534 n.9, could have supported the Board's finding that the lot was undersized; it was not empowered to consider the import of Pooler's statements anew and replace the decision below with one more consistent with its own judgment. Here, a reasonable mind could conclude that Pooler's statements established that the lot in question was undersized and would not have been permitted by current regulations. Accordingly, the Board was entitled to rely upon that evidence for its finding that the lot is undersized, and I fail to see how doing so could constitute an abuse of its discretion.
While the OISA initially adheres to Lutz’ phrasing of the relevant hardship, see OISA at 715 ("the Board specifically found, inter alia , that the [Lutz] lot was small for the district it was in, and that in light of its undersized dimensions, strict compliance with the rear-yard setback requirement would create an unnecessary hardship"), it later gives way to rearticulations that encompass the ultimate issue and, I believe, thereby complicates the analysis. Id. at 717-18 (referring to the hardship as the choice between building an addition onto the Lutz house and building a covered deck onto the addition); id at 720 (referring to the hardship as "not having a raised, covered deck of the size proposed by [Lutz]").
What more likely explains the reversal below, as upheld by the OISA, is the determination that a lot being undersized based on prior regulations can never constitute a hardship, as a matter of law (despite any invocations of the phrase "substantial evidence"). The question then becomes not whether Pooler sufficiently established that Lutz’ lot is undersized, but whether that fact, in turn, is cognizable as a hardship under Section 10910.2(a) of the MPC. Like the Commonwealth Court, the OISA holds that it should not be so cognizable. As articulated below:
Some lots are smaller than others. Owning the smallest lot in a development does not, in itself, create a hardship triggering an automatic right of a landowner to a variance to encroach upon setbacks established by local zoning. Coupling a small lot with an owner's preference for a deck larger than what local zoning permits does not transform a small lot into one burdened by a hardship.
Kneebone , 2020 WL 3866643 at *5. While the OISA falls short of announcing such a rule in explicit terms, it does so implicitly through its reliance on Larsen . There, a zoning board granted property owners a variance to build a large deck onto the back of their house, and the Commonwealth Court reversed. 672 A.2d at 288. This Court affirmed, because (i) "the mere desire to provide more room for a family member's enjoyment" failed to constitute a hardship, (ii) the deck's encroachment into the rear setback owed to an addition the variance-seekers had constructed the year prior, and (iii) the physical circumstances cited to justify a variance were not sufficiently unique to the property in question. Id. at 290-291 ; cf. 53 P.S. § 10910.2(a)(1), (3). The OISA appears to treat Larsen as the flagship for an entire category of cases, those in which a property owner seeks a variance based on "the mere desire to provide more room [for their family]," 672 A.2d at 290, and concludes that requests falling in that category will forever fail to satisfy the first prong of Section 10910.2.
As such, the OISA is confident that Larsen is sufficient to resolve the case at hand. See OISA at 718-19. I cannot agree. For one thing, Larsen predates our guidance in Hertzberg —holding that dimensional variances are "of lesser moment" than use variances, requiring a lesser "quantum of proof" to support findings in their favor, and thereby establishing a "relaxed" standard for determinations of hardship—by two years. 721 A.2d at 47 ; see also Township of Northampton v. Zoning Hearing Bd. of Northampton Twp. , 969 A.2d 24, 28 (Pa. Cmwlth. 2009) (" Hertzberg directs that a more relaxed standard should be employed when analyzing the hardship"). Even assuming that the instant case was on all fours with Larsen , I would submit that the OISA's present analysis is incomplete without considering whether and how review of a decision granting a similar variance might have changed in a post- Hertzberg world.
Moreover, the case sub judice is not on all fours with Larsen . Lutz argues, as the homeowners in Larsen never did, that the lot in question is undersized, due to outdated zoning regulations. We must not gloss over this crucial difference. The OISA seems to assume that wanting more space is wanting more space, period. But Lutz does not argue that the property at 5735 Kesslersville Road is undersized for the family's desires or in the general sense of the word. Lutz specifically contends that the lot in question is constrained by a bygone zoning scheme, such that strict compliance with the rear setback constitutes an unnecessary hardship. To be sure, the MPC provides that a hardship must arise from physical circumstances, "and not the circumstances or conditions generally created by provisions of the zoning ordinance in the neighborhood of district where the property is located." 53 P.S. § 10910.2(a)(1). But one could make a colorable argument that the phrase "provisions of the zoning ordinance" should be presumed to mean provisions of the current zoning ordinance, thereby allowing claims that arise from conditions or circumstances created by a past zoning ordinance. Lutz's novel argument may conceivably change the analysis regarding whether the hardship was self-created and whether it was unique. In hastily reasoning that this case is analogous to Larsen , though, the OISA fails to confront these nuances.
The OISA asserts that "undersized" is a "colloquial description in the present context," and determines that, because "it is not a term used by the MPC ... it carries no legal significance standing alone." OISA at 716 n.6. To be clear, I do not ascribe any independent meaning to the word. Rather, I consider its import in the context of the specific passages of Board testimony that discuss the fact that the lot would not be permitted under current zoning regulations.
Beyond the fact that I find consideration of the general (or "colloquial") sense of the word "undersized" to be inconsistent with Lutz’ argument and the Board's findings, I would further observe that the term is inherently relative. For instance, an elephant cannot be considered "undersized" without knowing what size it is expected to be. And for this same reason, "undersized" cannot function as a synonym for "small"—an undersized elephant is still quite large. We must then investigate Lutz’ use of the word. The lot is undersized in relation to what? Lutz, Pooler, and the Board provide the answer: the lot is undersized in relation to what would be "permitted under current zoning regulations." N.T., 9/11/18 at 10.
A variance request based on the notion that a lot is undersized is different in kind from a variance request based only in the desire for more space, when considering these statutory commands. As to self-creation, it would seem circular (not to mention unresponsive to the argument) to simply fault the owner of an undersized lot for using too much of the space allotted to them, thereby "pushing" a structure such as a deck into a setback and necessitating a variance. Meanwhile, determining which lots are most, and therefore uniquely, restricted by past zoning regulations such that relief is warranted would involve a complex and comparative analysis of nearby properties, a detailed understanding of the timeline of zoning decisions, or both.
II.
Putting aside the fact that our precedent may command us to reason through this appeal differently from the Larsen Court in the wake of Hertzberg and the fact that Lutz raises a novel argument with which the lead opinion does not truly contend, I recognize that the instant appeal presents a question of substantial importance which merits allocatur . But neither party focuses its briefing on this question. And neither presents any statutory analysis. Moreover, the lower courts did not have the opportunity to pass on the issue. Accordingly, this Court lacks the developed advocacy necessary to come to a well-reasoned conclusion. This case is not an appropriate vehicle through which we may offer an answer. I make no comment on the ultimate merits of the issue. I am compelled to recognize, however, that the intersection of the MPC, Hertzberg , and Lutz’ novel argument presents an issue far thornier than the OISA makes it out to be.
Stated succinctly, the question would be whether, as a matter of law, a determination that a lot is undersized because of an outdated zoning scheme can support a finding of unnecessary hardship under the MPC?
The OISA asserts that "[c]ontrary to [my] suggestion," Lutz does not raise the issue as I have phrased it in Footnote 5. OISA at 720. Further, the OISA contends that "the only aspect of the prior zoning regulations that has been mentioned by any party or tribunal in this matter is the fact that the lot size conformed with that ordinance." Id. These statements are contradicted by the record. Before the Board, Pooler was asked whether the lot size was "created by the Lutzes or ... [whether it was] a pre-exisitng half acre lot that would not have been permitted under current zoning regulations." N.T., 9/11/18, at 10. Pooler responded, "Pre-existing lot that would not be permitted today." Id. Nowhere else does the Board discuss how, why, or to what extent the lot is undersized. Therefore, we can presume that it relied upon Pooler's statement when it recognized "the undersized dimensions of the lot" and referred to it being a "small lot of record." See ZHB Opinion, 11/15/18, at 9; see also Tr. Ct. Op. at 10 ("Property's lot is undersized which creates a hardship"). Contrary to the OISA's retelling, both (i) the finder of fact and (ii) the trial court that upheld its decision plainly acknowledged and relied upon the understanding that the Lutz lot would not conform with the current ordinance.
Furthermore, to the extent that the OISA faults Lutz for not articulating the specific question of whether outdated regulations might work a hardship on a property as a matter of law, I would observe that Lutz was the verdict winner before the trial court and therefore bore no burden to raise or preserve this issue before the Commonwealth Court. Thereafter, Lutz appealed on the basis that the Commonwealth Court abused its discretion when it resolved the case in one paragraph, devoid of meaningful analysis, in which it simply stated that it "did not agree" with the trial court. Kneebone , 2020 WL 3866643 at *5. Indeed, we may have held that an abuse of discretion occurred if we found that the panel brazenly substituted its judgment for that of the court below. Accordingly, a discussion of the merits of Lutz’ application for a variance was never necessary to the resolution of this case up until now, when, for the first time, the Court seems to conclude that, for purposes of analysis, a claim of hardship based upon the undersized nature of a lot is indistinguishable from a claim of hardship based upon the desire to provide family members more space.
The foregoing examination, indicating a difficult question of law that requires more direct and nuanced analysis than the Court can provide in light of the arguments before it, serves to underscore the fact that our resolution of this case in its current posture would constitute error review. Neither party advocates for a particular interpretation of Hertzberg or of the MPC, nor does either party request our guidance in navigating this Court's zoning law precedent. Rather, the parties argue only over the application of these commands to the instant dispute. Indeed, both parties agree that the standard of appellate review contemplates an abuse of discretion or an error of law, compare Lutz Br. at 3 with Kneebone Br. at 7 (both citing Baker v. Chartiers Twp. Zoning Hearing Bd. , 677 A.2d 1274 (Pa. Cmwlth. 1996) ), and both agree that Hertzberg applies. Compare Lutz Br. at 12 with Kneebone Br. at 7-8 (both citing Hertzberg , 721 A.2d at 47 ). Lutz claims error and asks that we correct it, while Kneebone denies that any error exists. Without any opportunity to "elucidate broad legal principles or otherwise refine or advance Pennsylvania law," we are once again left with a "fact-specific appeal under a highly deferential abuse-of-discretion standard." See Steltz v. Meyers, ––– Pa. ––––, 265 A.3d 335, 353 (2021) (Wecht, J., dissenting). Because the only resolution to this matter I foresee would be of import to no one outside the Kneebone and Lutz households, and because neither party's argument indicates any opportunity to expand upon or clarify relevant legal principles, I believe that this case constitutes error review of the type this Court generally does not entertain. See Pa.R.A.P. 1114. For the foregoing reasons, I would dismiss this case as improvidently granted and await a more appropriate vehicle to resolve these important questions.
53 P.S. §§ 10101 -11202.
Justice Dougherty joins this opinion in support of dismissal, except for the improvidently granted disposition.