Opinion
No. 1339 C.D. 2010
08-15-2012
Curtis W. Reid and Katherine A. Reid, husband and wife, Appellants v. Upper Augusta Township Zoning Hearing Board
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Curtis W. Reid and Katherine A. Reid, husband and wife (Landowners), appeal from the December 29, 2009 order of the Court of Common Pleas of Northumberland County (trial court) affirming the order of the Upper Augusta Township Zoning Hearing Board (Board) which denied Landowners' application for a variance. We affirm.
The underlying facts of this case are not in dispute. Landowners own a four-acre parcel of property located at 1315 Snydertown Road, Upper Augusta Township (Township), Northumberland County. Landowners sought to build a home on their property and obtained a zoning permit in November 2006 and a building permit in April 2007. Landowners thereafter commenced construction. However, on October 11, 2007, the Township issued Landowners an enforcement notice revoking their zoning permit and halting construction because the substantially completed home was as close as 20 inches from the rear property line and entirely within the 50-foot rear yard setback required by the Township's zoning ordinance. (Reproduced Record (R.R.) at 12a.)
Upper Augusta Township is a Second Class Township. 120 The Pennsylvania Manual 6 - 129 (2011).
The remarks section of the zoning permit specifically notes the setback requirements of the Township's zoning ordinance, i.e., 100 feet to the front and sides and 50 feet to the rear. (R.R. at 10a.)
The building permit, Exhibit P-1, states, in pertinent part, that "[t]he issuance of this permit does not release the applicant from the conditions of any applicable subdivision or zoning restrictions." However, the permit also states that "[w]ork shall not proceed until the inspector has approved the various stages of construction," and "[a]pproved plans and/or specifications must be retained on the job." The building permit also indicates the following approvals that were made by the Township's inspector: the plan review was approved on April 6, 2007; the footing was approved on May 24, 2007; the foundation was approved on May 29, 2007; the electrical service cut-in was approved on July 26, 2007; and the framing/masonry was approved on August 15, 2007.
Section 1601(c.1)(7) of the Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §66601(c.1)(7), provides that "[t]he board of supervisors may delegate the initial determination of ordinance violation and the service of notice of violation to such officers or agents as the township shall deem qualified for that purpose." See also section 616.1(a) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §10616.1(a) ("[i]f it appears to the municipality that a violation of any zoning ordinance enacted under this act or prior enabling laws has occurred, the municipality shall initiate enforcement proceedings by sending an enforcement notice as provided in this section.").
Landowners thereafter filed an application with the Board for a variance from this setback requirement. The Board conducted hearings on Landowners' application on January 2 and 30, 2008. Landowners testified, as did Richard Parsons, a registered land surveyor, and Eleanor Newman, the owner of the land that abuts the rear of Landowners' property. Following their testimony, the Board voted 3-2 to deny Landowners' application.
As set forth in its opinion, the Board found that Landowners did not have a survey conducted at the time they purchased the property, nor did they consult with the neighboring landowners. In addition, the Board found that during the process of purchasing the property, Landowners did not walk the boundaries of the property with their real estate agent; the agent merely pointed out the relative location of the property's boundaries. The Board found that Mr. Reid did not contact Parsons, the surveyor who prepared a subdivision plan for the previous owner, but he found a stake with surveyor's tape in the rear of the property that he believed was the marker for the corner of his property. The Board determined that the stake found by Mr. Reid was actually placed there by a neighbor and bore no relation to Landowners' property. The Board also found that Landowners' home, a modular on foundation, was substantially completed by the time Landowners received the Township's enforcement notice. The Board observed that the property contained some wetland areas, but determined that these areas did not preclude placement of the home within the buildable area defined by the setback requirements. Finally, the Board noted the neighbor's concern that the incorrect placement of the home would obstruct her view should she develop her property to the rear of Landowners' home at some future point in time.
The Board identified the criteria necessary for the granting of a variance under section 1112 of the Township's Zoning Ordinance. The Board concluded that the first criteria, unnecessary hardship resulting from unique physical circumstances or conditions peculiar to the property, was not met; although the Board noted testimony concerning wetland areas on the property, the Board concluded that the home could have been built elsewhere on the lot and still have met the zoning ordinance's setback requirements. The Board indicated that the same reasoning applied to prevent Landowners from satisfying the second criteria, i.e., that there is no possibility of developing the property in strict conformity with the ordinance. Regarding the third requirement that the unnecessary hardship had not been created by the applicant, the Board held that the opposite was true in this case, citing Landowners' minimal efforts to ascertain the extent of their property. Finally, the Board rejected Landowners' claim that the violation was de minimis, concluding that the intrusion of over 48 feet into the 50-foot rear setback area and the location of the entire home within the rear setback area was not de minimis, particularly when the hardship was created by Landowners themselves.
The Township's Zoning Ordinance is not part of the certified record of this appeal. However, section 910.2 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2, provides, in pertinent part:
(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.
The Board distinguished Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958), a case cited by Landowners involving the grant of a variance following a de minimis zoning ordinance violation. Moyerman involved a 14- to 16-inch encroachment onto the driveway of a neighboring property, which resulted from incorrect dimensions included in a plan provided to the encroaching landowner at settlement and maintained in the county plan, as well as the neighboring property owner's unapproved 7-foot increase in the width of his driveway. In contrast, as noted above, in this case Landowners' home encroaches over 48 feet into the 50-foot setback area and the entire house sits within the setback area.
Landowners filed a land use appeal with the trial court. The Township and Newman and her husband intervened. Following the submission of briefs and oral argument, the trial court issued its December 29, 2009 order affirming the Board's decision, citing section 910.2 of the MPC, and Landowners filed this appeal.
Landowners originally filed their appeal with our Superior Court. However, by order dated May 19, 2010, the Superior Court transferred the matter to this Court.
In this appeal, Landowners claim that the trial court erred in affirming the Board's decision because: (1) their violation of the 50-foot rear yard setback requirement of the Township's zoning ordinance is de minimis; and (2) they presented sufficient evidence to satisfy the criteria necessary for the grant of a variance under section 910.2 of the MPC.
Where, as here, the trial court did not take additional evidence, this Court's scope of review is limited to determining whether the zoning hearing board committed an error of law or abused its discretion. In re Appeal of Towamencin Township, 42 A.3d 366, 368 n.1 (Pa. Cmwlth. 2012). We will find an abuse of the zoning hearing board's discretion where its findings are not supported by substantial evidence. Id.
We reorder the claims raised by Landowners in this appeal in the interest of clarity.
Landowners first claim that the trial court erred in affirming the Board's decision because their violation of the 50-foot rear yard setback requirement of the Township's zoning ordinance is de minimis, thereby entitling them to a variance from the setback requirement. We disagree.
De minimis variances are only granted where the proposed dimensional deviations from the zoning requirement are relatively minor and where the insistence on rigid compliance is not absolutely necessary to preserve public policy. Patullo v. Zoning Hearing Board of the Township of Middletown, 701 A.2d 295, 300-01 (Pa. Cmwlth. 1997). As this Court has explained:
Normally, a landowner seeking a variance must demonstrate unnecessary hardship. The de minimis variance doctrine is a narrow exception to the heavy burden of proof involved in seeking a variance. The doctrine applies only where: (1) a minor deviation from the dimensional uses of a zoning ordinance is sought, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. The determination of whether or not the de minimis doctrine applies requires consideration of both factors.Appletree Land Development v. Zoning Hearing Board of York Township, 834 A.2d 1214, 1216 (Pa. Cmwlth. 2003) (citations omitted). The decision of whether to grant a de minimis variance is left to the discretion of the local zoning board. Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 163 (Pa. Cmwlth. 1997), appeal denied, 555 Pa. 693, 722 A.2d 1059 (1998).
In this case, Landowners are not seeking a minor deviation from the 50-foot rear setback requirement in the Township's zoning ordinance. Rather, while there is no precise mathematical percentage that marks the line between de minimis and significant deviations, Landowners' 96% deviation from the Township's rear setback requirement is not a de minimis variance as a matter of law. See Swemley, 698 A.2d at 162-63 (holding that a 34% deviation from the front setback requirement is not de minimis as a matter of law); D'Amato v. Zoning Board of Adjustment of City of Philadelphia, 585 A.2d 580, 583 (Pa. Cmwlth. 1991) (holding that a 13% deviation from the opens area requirement is not a de minimis variance); Leonard v. Zoning Hearing Board of City of Bethlehem, 583 A.2d 11, 13 (Pa. Cmwlth. 1990), appeal denied, 529 Pa. 665, 604 A.2d 1032 (1991) (holding that a 6% deviation from the minimum lot size requirement is not de minimis as a matter of law); Andreucci v. Zoning Hearing Board of Lower Milford Township, 522 A.2d 107, 110 (Pa. Cmwlth. 1987) (holding that an 8% deviation from the minimum lot size requirement is not de minimis as a matter of law). Thus, the Board did not abuse its discretion in refusing to grant Landowners a de minimis variance from the rear setback requirements of the Township's zoning ordinance.
Cf. Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900, 901-02 (Pa. Cmwlth. 1996) (holding that a 6.76% increase in square footage of a building beyond the dimensional maximum was a de minimis variance); Appeal of Ressler Mill Foundation, 573 A.2d 675, 676 (Pa. Cmwlth. 1990) (holding that a 4.7% dimensional variance in the width of a one-acre lot size is a de minimis variance).
Landowners also claim that the trial court erred in affirming the Board's decision because they presented sufficient evidence to satisfy the criteria necessary for the grant of a variance under section 910.2 of the MPC. More specifically, Landowners outline how they have satisfied the five requirements of section 910.2 of the MPC warranting the grant of a dimensional variance. Again, we disagree.
Under section 910.2 of the MPC, a zoning hearing board may grant a variance provided that the applicant has shown that compliance with the relevant ordinance would work an unreasonable hardship upon the applicant and that the proposed use would not be contrary to the public interest. In re Appeal of Towamencin Township, 42 A.3d at 370. The determination of whether the evidence in a particular case satisfies this test is the function of the zoning hearing board and the courts will not disturb this determination unless it is not supported by substantial evidence. Id.
In Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), the Pennsylvania Supreme Court recognized a distinction in the requirements to establish unnecessary hardship when a dimensional variance is sought as opposed to a use variance, the latter of which involves a proposal to use property in a manner entirely outside of the zoning regulation. The court explained:
See, e.g., Appletree Land Development, 834 A.2d at 1216-17 (holding that the unnecessary hardship standard is the test to be applied in a variance case where the de minimis doctrine cannot be invoked).
The issue here involves a dimensional variance and not a use variance—an important distinction ignored by the Commonwealth Court. When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.Hertzberg, 554 Pa. at 257, 721 A.2d at 47.
In Hertzberg, the Supreme Court also indicated that the quantum of proof required to establish unnecessary hardship is lessened when a dimensional variance is sought, stating:
[W]e now hold that in determining whether unnecessary hardship has been established, courts should examine whether the variance sought is use or dimensional. 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....Hertzberg, 554 Pa. at 263-64, 721 A.2d at 50. See also In re Appeal of Towamencin Township, 42 A.3d at 370 ("[t]he Court explained that in a dimensional variance analysis, because of this lesser quantum of proof, courts may consider multiple factors not traditionally considered in the analysis for use variances, 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.'") (quoting Hertzberg).
However, In re Appeal of Towamencin Township, we stressed that while Hertzberg may have relaxed the degree of hardship that will justify a dimensional variance, it does not stand for the principle that a property owner may receive a dimensional variance anytime the owner is prevented from using the property exactly as he or she wishes by dimensional requirements. --------
Nevertheless, a dimensional variance is not appropriate unless it would result in only a mere technical and superficial deviation from the ordinance's requirements. One Meridian Partners, LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706 (Pa. Cmwlth. 2005). Further, this Court has "consistently held that an applicant is not entitled to a dimensional variance under the relaxed standard set forth in Hertzberg where no hardship is shown...." Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011); see also Township of Northampton v. Zoning Hearing Board of Northampton Township, 969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting an applicant's request for a variance from off-street parking requirements where no evidence of hardship was presented and evidence revealed that the applicant could use the property in a manner consistent with ordinance requirements).
In the present case, Landowners failed to present sufficient evidence warranting the grant of a variance. As the Board noted in its decision, while there was some testimony concerning the unique physical circumstances of Landowners' 3.9 acre lot, namely certain wet areas/slopes on the property, the record revealed that the home could have been built elsewhere on the lot and still have met the setback requirements. In other words, the property could still be developed in strict conformity with the Township's Zoning Ordinance. Further, as the Board also noted, any unnecessary hardship in this case was self-created by Landowners because they "[d]id very little to ascertain the extent of their property, other than relying on the representations of a real estate agent and the location of a single stake without further investigation." (Board decision at 4.) Landowners did not have a survey conducted at the time of purchase, did not consult neighboring landowners, did not walk the boundaries of the property, and did not contact the surveyor who prepared a subdivision plan for the previous owner. While we are sympathetic to Landowners' situation, we cannot conclude that the trial court erred in affirming the Board's decision.
Accordingly, the order of the trial court is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 15th day of August, 2012, the order of the Court of Common Pleas of Northumberland County, dated December 29, 2009, is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge