Opinion
No. 973 C.D. 2008.
Argued: June 8, 2009.
Filed: July 17, 2009.
BEFORE: JUBELIRER, Judge; FLAHERTY, Senior Judge; McCLOSKEY, Senior Judge.
OPINION NOT REPORTED
Upper Merion Township (the Township), the Upper Merion Township Zoning Hearing Board (the ZHB) and the various landowners identified above appeal from an order of the Court of Common Pleas of Montgomery County (trial court) that reversed the ZHB's decision and order denying variance relief requested by BBW Properties, Inc. (BBW). BBW had sought approval to construct a single-family home on a parcel of land that is surrounded and land-locked by other developed lots. We affirm the trial court's order.
BBW owns the lot, known as No. 7 (hereinafter referred to as No. 7) on Block 23 of the Township's map, which is located in an R-2 district in the Township. The Township's Zoning Ordinance (Ordinance) contains a minimum lot size requirement of 10,000 square feet for the construction of a single-family dwelling; however, No. 7 consists of only 9,750 square feet, and, as noted above, is land-locked and without frontage on a public street. BBW also owns an improved adjacent lot to the north, No. 21, which has a street address of 437 Eastburn Avenue. No. 7 sits behind No. 21. No. 21 has seventy-five feet of frontage. BBW acquired both lots on the same day, December 15, 2006.
At the time BBW purchased the lots, No. 21 had been owned by Debra Fridley and Michael Uhrin (executors of the estate of John Uhrin). BBW paid $315,000 for No. 21. John Uhrin had acquired No. 21 in 1953 from Kenneth Zacaro. Debra Fridley is John Uhrin's daughter. Debra Fridley and her husband, Ron Fridley, owned No. 7 and BBW paid them $10,000 for this lot. The Fridleys had acquired No. 7 in 2004 from Helen Iacovitti and the deed indicates that they paid no monetary consideration for the land-locked lot. Hence, there has not been any apparent unity of ownership of the two lots, except that Debra Fridley was executor of the estate of her father, who had owned No. 21.
Both lots had originally been part of a larger tract which appears to have been owned by Donald Tuffillaro. Mr. Tuffillaro had conveyed No. 7 to Mr. Iacovitti in 1952 and Mr. Iacovitti's widow, Helen, thereafter conveyed the lot to the Fridleys in 2004.
The record indicates, and the ZHB determined, that No. 7 was owned by the Iacovittis for fifty years, that the Iacovittis resided at 433 Eastburn Avenue, that No. 7 connected to the lot encompassing 433 Eastburn Avenue at a far corner of the property and that the Iacovittis used No. 7 simply as a backyard.
As indicated above, both No. 7 and No. 21 are in an R-2 zoning district. Before 1957, this district required 7,500 square feet for building. The Township amended the Ordinance in 1957 to require 10,000 square feet for building. The Ordinance contains no grandfathering clause for nonconforming lots. BBW would like to construct a 2,200 square foot, two-story, single-family dwelling on No. 7, proposing possible access to the house by a ten-foot wide easement/driveway along the side of No. 21, increasing the impervious surface on No. 21 to at least 1,200 square feet (120 feet long by ten feet wide).
BBW also suggests there is a chance that a paper street that abuts in a parallel manner the rear-most part of No. 7 could provide access to the lot.
BBW's representatives met with the Township's zoning officer before purchasing the lots. The zoning officer informed them that No. 7 was undersized and that BBW would need zoning relief in order to develop the property. However, after purchasing the property, BBW, instead of requesting zoning relief, directly asked for a building permit, which the Township denied. BBW filed an application with the ZHB on March 16, 2007, which ultimately involved only the question of whether the lot constituted an existing nonconforming lot and, alternatively, whether the ZHB should grant BBW a dimensional, de minimis or validity variance.
BBW had raised other grounds for relief, but ultimately dropped all but those noted above.
The ZHB denied all of BBW's requests, concluding that BBW had failed to satisfy the criteria necessary for the grant of any type of variance, that any hardship BBW experienced was self-inflicted, that the proposed construction of the house would alter the character of the neighborhood and that the required easement/driveway would adversely affect the health and safety of the community, notably that of the adjoining neighbors. The ZHB presumably reasoned, based upon the concerns attested to by the adjoining landowners, that delivery trucks would have difficulty navigating down the proposed easement/driveway to No. 7 and that a greater number of automobiles would be using the easement/driveway in order to gain access to No. 7. The ZHB also opined that Nos. 7 and 21 could be merged.
BBW appealed that decision to the trial court, which reversed the ZHB, concluding that BBW was entitled to a dimensional variance from the minimum lot size requirements of the Township's Ordinance, essentially based upon the view that the law disfavors the "stigma" of nonconformity and that BBW is an innocent victim of the 1957 amendment that removed a nonconforming lot provision.
In this appeal, the Township and the ZHB raise the following issues: (1) whether the trial court erred as matter of law in concluding that the ZHB's decision was not supported by substantial evidence; (2) whether the trial court erred by substituting its judgment for that of the ZHB; (3) whether the trial court erred as a matter of law in interpreting the zoning ordinance in such a manner as to conclude that it supported the grant of a variance from the minimum lot size requirements; (4) whether the trial court erred in concluding that the ZHB erred in its interpretation of the zoning ordinance; (5) whether the trial court erred as a matter of law by "frustrating the intent of the . . . Township Supervisors in granting a variance;" (6) whether the trial court erred in concluding that the ZHB abused its discretion and committed an error of law; and (7) whether the trial court applied an erroneous standard in considering the application for a variance.
This Court's standard of review in an appeal of a trial court decision reversing a zoning hearing board's order denying variance relief to a property owner is limited, when the trial court takes no additional evidence, to considering whether the zoning hearing board erred as a matter of law or abused its discretion. Piecknick v. South Strabane Township Zoning Hearing Board, 607 A.2d 829 (Pa.Cmwlth. 1992).
The trial court rested its decision to reverse the ZHB by considering the elements necessary for the grant of a dimensional variance. The traditional elements applicable for variances are set forth in the Pennsylvania Municipalities Planning Code (MPC). Section 910.2 of the MPC, 53 P.S. § 10910.2, provides that zoning hearing boards may consider requests for variances when a party asserts that application of the provisions of an ordinance will "inflict unnecessary hardship upon the applicant." When acting on such an application, Section 910.2 instructs zoning hearing boards that they may grant such relief "provided that all of the following findings are made where relevant in a given case." Those necessary findings, which by implication from the first quoted passage of this section, relate to the question of whether an unnecessary hardship exists and whether the grant of minimal relief will not affect the character of a given neighborhood or detrimentally effect the public welfare, can be summarized as follows:
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 — 11202.
(1) unique physical circumstances or conditions exist relating to the particular property that are not created by the provisions of the zoning ordinance;
(2) the identified unique physical characteristics of the property preclude development of the property in conformity with the ordinance such that the grant of a variance is the only means by which the property may be reasonably used;
(3) the hardship is not self-created;
(4) the grant of the variance, and the development approved thereunder, will not alter the essential character of the neighborhood or be detrimental to the public welfare; and
(5) the relief granted through the approval of a variance is the least necessary deviation from the applicable ordinance provisions.
All of the parties, as well as the trial court, discuss our Supreme Court's decision in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, (1998), which signaled a departure from a strict application of the traditional requirements necessary for the grant of a variance, by concluding generally that the quantum of evidence necessary for the granting of a dimensional variance is lower than that required for the grant of a use variance.
In response to BBW's reliance upon this principle, the Township asserts that, even though under Hertzberg dimensional variances may require a less stringent showing regarding the appropriateness of variance relief, a party must still establish that it is the property itself that is subject to the alleged hardship, rather than the owner. Further, the Township argues, even under a relaxed standard, a property owner does not have the right to use his property for the highest and best financial purpose. Following this reasoning, the Township asserts that a reasonable use of No. 7 is just what the property has been used for over the years, i.e., a backyard.
The Township, arguing that dimensional variance cases decided afterHertzberg have applied the traditional elements in a variance request analysis, refers us to our decision in Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103 (Pa.Cmwlth. 2001). Cardamone involved a land owner who had one lot with an improvement and wanted a dimensional variance so she could subdivide her lot in order to sell the proposed rear lot. The problem in that case involved the need for the owner to get a dimensional variance from (1) the twenty-five foot ordinance requirement for a common driveway, where the owner only had twelve feet, and (2) the ordinance frontage provision, which required thirteen more feet than the thirty-seven feet on the owner's property. This Court agreed with the court of common pleas in that case, noting that even under the relaxed standard set forth in Hertzberg, the property owner had not established her right to a variance.
The Court pointed out that the Supreme Court's newly established standard under Hertzberg related to the hardship element and involved a property owner's attempt to revitalize a blighted neighborhood.
However, there is a significant factual difference between the present case and Cardamone. The lot in Cardamone was not a separate lot when the owner sought subdivision approval. There was an existing building on the single lot, and, therefore, the owner was not deprived of the reasonable use of her property. In this case, we are dealing with land that had already been subdivided at the time BBW purchased the lots.
In considering the hardship element in a variance case, this court has previously noted that "the requirement in variance cases of `unique physical circumstances' serves only to distinguish and to disqualify for the purposes of variance relief, properties burdened only by the zoning restrictions which bear equally on all properties zoned." Jones v. Zoning Board of North Catasauqua, 455 A.2d 754, 755 (Pa.Cmwlth. 1983). Nevertheless, in cases involving requests for variance relief to allow the construction upon a dimensionally small lot, this Court has held that a hardship peculiar to the land itself results where the operation of dimensional aspects of a zoning ordinance would preclude "any productive use of the land." Jacquelin v. Horsham Township, 312 A.2d 124, 126 (Pa.Cmwlth. 1973). Further, "productive use" contemplates not simply any use, but rather one that provides the owner with the opportunity to develop the property for uses that are appropriate in the particular zoning district, i.e., the construction of a residential dwelling in a residential district.
Based upon these decisions, we cannot agree with the Township that the proposed use of the lot as a backyard constitutes a reasonable use of the property. Consequently, we conclude that the ZHB erred in its analysis regarding the existence of a hardship in this case. See also Sombers v. Stroud Township Zoning Hearing Board, 913 A.2d 306 (Pa.Cmwlth. 2006),petition for allowance of appeal denied, 594 Pa. 701, 934 A.2d 1280 (2007).
This is not a case where a hardship is self-inflicted based upon a purchaser's payment of an inflated price (as an apparent means to create a financial hardship) in anticipation of variance relief. See Harper v. Zoning Hearing Board of Ridley Township, 343 A.2d 381, 384 (Pa.Cmwlth. 1975).
In accordance with Jacquelin, and contrary to the ZHB's conclusion, the factual findings support the legal conclusion that a hardship exists with respect to No. 7 (which has always been legally separate from No. 21), because No. 7's dimensional deficiency precludes development in conformity with the Ordinance.
The Township, relying upon this Court's decision in Dudlik v. Upper Moreland Township Zoning Hearing Board, 840 A.2d 1048 (Pa.Cmwlth. 2004), asserts that, even if a hardship exists, it is self-inflicted. In that case, a landowner had made an initial purchase of a lot and then later bought two smaller lots on either side of the first lot. At the time of purchase, for building purposes, the zoning ordinance required lots to be a minimum size of one-half acre, but then shortly thereafter Upper Moreland Township amended the ordinance to require lots to be one acre in size. The landowners thereafter conveyed the first lot and one side lot to a third party and requested a special exception for the remaining side lot in order to build a house. The remaining lot was just slightly larger than one-half acre in size, and, thus, under the amended ordinance, did not satisfy the minimum lot-size requirement. This Court held that, since the property was held in single ownership at the time of the zoning amendment, the common ownership had resulted in merger at the time of the amendment, and, therefore, the owner had failed to show that the hardship was not self-created.
The case now before the Court does not involve a situation in which No. 7 and No. 21 were held in single ownership. The owner here acquired two distinct lots, but the lots were not held in single ownership at the time of the zoning amendment. Further, there does not appear to be any argument offered that the Ordinance operated to merge the two lots subsequent to BBW's purchase. The original owner of the improved No. 21 never held title to No. 7. Hence, Dudlik is not applicable here.
Further, in In re: Appeal of Grace Building Co., Inc., 401 A.2d 407 (Pa.Cmwlth. 1979), this Court held that a hardship is not self-inflicted even where a purchaser of a dimensionally deficient lot knew of the non-conformity and also purchased the lot for a price below fair market value.
The only remaining grounds upon which the ZHB denied variance relief concerned Section 910.2(a)'s requirements that the grant of relief will not adversely affect the safety of the public and that the proposed development will not alter the essential character of the neighborhood. The ZHB made specific factual findings relating to these factors. The findings indicate that the owner of an adjacent property had concerns about potential danger to her children who sometimes play in their driveway, which area has no barrier separating it from the easement/driveway that would provide access to No. 7. The findings also indicate that other owners of property located near No. 7 believe that the style of single-family dwelling BBW proposes to construct will alter the character of the neighborhood. The ZHB also noted in its discussion that "all of the lots in the immediate area of the Parcel have what appears to be large rear yards, except Lot 21." (ZHB Decision at 21).
In essence, these findings simply summarized the testimony of neighborhood residents.
With regard to the public interest element, we note that the ZHB's reliance upon the potential impact on the adjacent property owners, while not insignificant, does not support a conclusion that the grant of variance relief will indeed result in harm to the general public. The evidence in the record with respect to this element consisted of the testimony of neighbors concerning their fears relating to increased vehicular traffic if an easement/driveway is created to allow vehicular access to No. 7. The limited implicit fact deducible from that testimony is that a neighbor has a fear regarding possible additional vehicles in the area. However, BBW merely sought to construct a single-family dwelling, not a commercial building. Although the easement/driveway may be adjacent to a particular neighbor's driveway, there is no evidentiary support for a finding that a real danger exists as to an easement/driveway associated with No. 7. Further, there remains uncertainty as to whether BBW will settle upon the easement/driveway as a means for access to No. 7. As indicated above, BBW suggests that an alternative means of access may eliminate the need for this easement/driveway.
Finally, we disagree with the ZHB's conclusion that granting variance relief to allow the construction of a single-family home on No. 7 would alter the essential character of the neighborhood. The neighborhood is presently a residential area with single-family dwellings. We cannot agree with the ZHB insofar as it attempts to distinguish the proposed construction from the present character of the neighborhood. The neighborhood is composed of single-family dwellings. The proposed dwelling may be stylistically different from many of the homes in the area, but style is essentially an aesthetic consideration. The ZHB also concluded that most of the improved lots in the area were lots with large backyards. However, the evidence in the record illustrates that, while some of the adjacent lots are larger than No. 7, many of the lots in the neighborhood are of a size similar to No. 7, and, in fact, No. 21 is of a size nearly identical to No. 7.
BBW, citing N. Pugliese, Inc. v. Palmer Township Zoning Hearing Board, 592 A.2d 118 (Pa.Cmwlth. 1991), argues that there is no evidence in the record supporting the notion that a single house on a 9,750 square foot lot would change the essential character of the neighborhood. In N. Pugliese, the Court stated that the character of the subject neighborhood would not be altered by the construction on a landlocked lot of a single family home where the neighborhood had similar homes. More significantly, the Court indicated that purely aesthetic considerations are not a valid reason for rejecting a variance. Hence, we believe the ZHB erred in concluding that the proposed construction would alter the essential character of the neighborhood.
Based upon the above considerations, granting BBW's request to construct a modestly sized single-family dwelling on the property represents the least necessary deviation from the applicable Ordinance provisions to accommodate BBW's right to the reasonable use of its property.
We also note that, in total area, No. 7, which consists of 9,750 square feet, represents a deviation from the required 10,000 square feet of only 250 square feet, or a 2.5% deficiency. Although the courts that have addressed requests for de minimis variances have not set forth a standard for determining when a deviation from a zoning ordinance's dimensional requirements is de minimis, 2.5% appears to this Court to qualify as such.
In order to obtain de minimis variance relief, a party must demonstrate that the deviation is minor and that rigid compliance is not necessary for the protection of the underlying concerns of the ordinance. Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900 (Pa.Cmwlth. 1996). In this case, the slight deviation does not appear in any way to contradict the underlying concerns in the Ordinance for the R-2 district in which No. 7 is located.
Additionally, because the denial of a variance would preclude BBW from making any reasonable use of its property, the grant of a de minimis variance in this case is also appropriate. Consequently, we believe that, even if we were to have concluded that certain of the necessary elements under Section 910.2 were not present, these factors would warrant the grant of relief on de minimis grounds.
Accordingly, we affirm the trial court's order reversing the decision and order of the ZHB.
ORDER
AND NOW, this 17th day of July, 2009, the order of the Court of Common Pleas of Montgomery County is affirmed.