Opinion
No. 2401 C.D. 2010
04-24-2012
Board of Supervisors, Township of Covington, Appellant v. Zoning Hearing Board Township of Covington
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
The Board of Supervisors of Covington Township (Township) appeals from the October 15, 2010, order of the Court of Common Pleas of Lackawanna County (trial court) affirming the decision of the Township's Zoning Hearing Board (ZHB) to grant a dimensional variance to Leonard and Joan Smith (Applicants) from the development standards of section 407 of the Township's zoning ordinance (Ordinance) necessary for them to construct a single family dwelling on their nonconforming, .84 acre lot. The undersized lot does not meet the minimum 2-acre lot size or the minimum 150-ft width requirements applicable to developing a property that is not served by a central sewer system. (Reproduced Record (R.R.) at 109.)
Applicants purchased the lot in 1967, before the Township adopted its Ordinance in 1995. The lot is situated in the R-2 (high density residential) district. The intent of the R-2 district "is to provide for residential development at high densities in areas where off-site sewage disposal and water supply are provided." (Section 404.3 of the Ordinance, R.R. at 106.)
Principal permitted uses in the R-2 district include: conservation design development; crop production; forestry development; single-family detached dwellings; and two-family dwellings. Conditional uses include: apartment buildings; garden apartments and townhouses; group care facilities; livestock operations; public buildings and uses; and public recreation. Uses permitted by special exception include; cemeteries; child care centers; churches; funeral parlors; semi-public buildings and uses; and towers. (R.R. at 112.)
Section 507.11 of the Ordinance (Use of Nonconforming Lots of Record) states as follows:
A. Single Family Dwelling - A single-family dwelling may be erected or expanded on any lawful nonconforming lot of record in any District, provided:(R.R. at 147.) The minimum lot size for a property with off-site sewage is 1 acre. (Section 407 of the Ordinance, Schedule of Development Standards.) The record reflects that Applicants' lot is an area that has central sewage but it is not connected to the sewage system. For lots with on-site sewage, section 407 of the Ordinance requires a minimum lot size of 2 acres; a minimum width/depth of 150 feet/200 feet; and minimum yards of 50 feet (front), 25 feet (rear), 15feet/40feet (sides). (R.R. at 109.) Applicants' lot is .84 acre in size and is 100 feet wide.
1. Yards- The required front, side and rear yard setback is maintained as required for the District in which the lot is located.
2. Other Standards - All other applicable standards in this Ordinance are satisfied.
3. Sewage Disposal - Sewage disposal is provided in accord with applicable Township and PA DEP requirements.
On October 15, 2008, Applicants applied for a variance. (R.R. at 232.) The application states that they seek a variance for their less-than-1-acre nonconforming parcel which is valueless under the Township's Ordinance and with respect to which the Township's Sewage Enforcement Officer had approved the results of a percolation test. The application does not specify the Ordinance provision(s) from which the variance is sought or identify Applicants' proposed use of the property. However, in a cover letter, (R.R. at 233), Applicants explained that their real estate agent had informed them that the property is not a buildable lot due to its size. The letter further stated that Applicants had been granted an on-lot sewage disposal permit after paying the Township $455 for the percolation test. In addition, Applicants stated that the properties surrounding their lot are similar in size or smaller.
The ZHB held a hearing on the application on November 13, 2008. (R.R. at 14-19.) Applicants did not attend the hearing, but Roberta Cedenka, a realtor who listed Applicants' property, testified on their behalf. According to Cedenka, the Township's Sewer Authority advised her to have the property "perked" because sewers were not available. Cedenka stated that after the property passed the "perc" test, she listed it as a buildable lot. However, Cedenka stated that after a buyer had shown interest in the property, she contacted the Township's Sewer Authority again and was then told that the property was not buildable.
The ZHB members engaged in some discussion about the dimensions and location of the property and then heard testimony from Township Supervisor Tom Yerke. Yerke stated that the Township's sewage system was not connected to Applicants' property because the land was "all rock." (R.R. at 17.) He also opined that there "is no such thing as grandfathering when it comes to that size of a lot." Id. Following a brief recess, the ZHB unanimously approved the variance request.
In its written decision, the ZHB concluded that, because the Township had granted Applicants a permit for on-site sewage disposal, Applicants satisfied the requirement of Ordinance section 507.11(3). The ZHB also stated that it did not waive the requirements of sections 507.11(1) and (2) concerning setbacks and other provisions. Finally, the ZBH concluded that Applicants met the requirements for a variance as set forth in Ordinance section 608.3, in that: the undersized lot cannot be developed in conformity with the Ordinance; Applicants did not cause the hardship; granting a variance will not alter the essential character of the neighborhood or be detrimental to the public welfare; and the issuance of a dimensional variance is the least modification possible of the regulation at issue. (R.R. at 23-26.) By order dated November 25, 2008, the ZHB granted the variance permitting Applicants to construct a single-family dwelling, conditioned upon their compliance with all other Ordinance requirements.
The Township appealed to the trial court, arguing that the ZHB erred in granting the variance because the property was not unique in that there are other undersized lots in the Township and asserting that the grant of the variance is contrary to the public interest. The trial court affirmed, and the Township now appeals to this Court.
Where, as here, the trial court receives no additional evidence on appeal from a decision of a zoning hearing board, our scope of review is limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law. Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998). An abuse of discretion will be found only where the zoning hearing board's findings are not supported by substantial evidence. Id.
The Township argues that Applicants have not satisfied the requirements for a variance set forth in Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). Specifically, the Township asserts that Applicants have not established an unnecessary hardship that is unique to the property.
Generally, to establish entitlement to a variance, an applicant must prove the following: (1) unnecessary hardship resulting from unique physical circumstances or conditions; (2) the property cannot be developed in strict conformity with the zoning ordinance and therefore authorization of a variance is necessary to enable the reasonable use of the property; (3) the unnecessary hardship has not been created by the applicant; (4) the grant of a variance will not alter the essential character of the neighborhood, substantially impair the appropriate use of adjacent property, or be detrimental to the public welfare; and (5) the variance represents the minimum variance that will afford relief. Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S §10910.2.
In determining whether unnecessary hardship has been established, the court must first examine whether the variance sought is use or dimensional. Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998). Where, as here, an applicant seeks a dimensional variance for a permitted use, the applicant is asking only for a reasonable adjustment of the zoning regulation in order to utilize the property in a manner consistent with the applicable regulations. Id. Thus, courts may consider multiple factors to justify the grant of a dimensional variance, including economic detriment to the applicant if the variance is denied, financial hardship created by achieving compliance with the zoning requirements, and the characteristics of the surrounding neighborhood. Id.
The Township asserts that Applicants did not present sufficient evidence to support the grant of a variance from the applicable width or minimum lot requirements. To the contrary, the Township argues that the hardship of the 2-acre minimum lot requirement was not unique to Applicants' property and that the grant of a variance is contrary to the public interest. However, in making these conclusory arguments, the Township applies the traditional burden necessary to obtain a use variance, whereas here, Applicants sought a dimensional variance, which is analyzed under the standards set forth by our Supreme Court in Hertzberg.
The Township also discusses Ordinance provisions that require the grant of a conditional use in order to a change in a nonconforming use; no change of use is at issue here.
In response, the ZHB observes that "a zoning hearing board's interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court." Borough of Milton v. Densberger, 719 A.2d 829, 831-32 (Pa. Cmwlth. 1998). More important, the ZHB points out that, in cases such as this, where a dimensional nonconformity predates the applicable zoning ordinance, the law requires that some relief be granted in order to allow the owner some productive use of his property. Jacquelin v. Horsham Township, 312 A.2d 124 (Pa. Cmwlth. 1973).
In Jacquelin, the landowner's property was located in a zoning district that permitted only single family detached dwellings, and agricultural, conservational and recreational uses. As in the present case, the lot had been in existence prior to the enactment of the zoning ordinance and was too small to build upon without violating a number of the ordinance's dimensional requirements. Specifically, in order to build a small home on the lot, variances were needed from the ordinance's area requirement, setback requirement, aggregate side yard requirement, and requirement of minimum width at the building line. The zoning hearing board denied the requested variances citing the "'magnitude of the variances requested" as well as a possible traffic hazard that could result due to the location of the house close to the road. Id., 312 A.2d at 125. The trial court affirmed the board.
After rejecting the proffered traffic concerns as a reason for denying the variance, we observed in Jacquelin that the combined effect of the ordinance and the board's refusal to grant the requested variances imposed an unnecessary hardship. Citing Poster Advertising Company, Inc. v. Zoning Board of Adjustment, 408 Pa. 248, 182 A.2d 521 (1962), we reversed the denial of the variances, reasoning that denying the variances would effectively deny the property owner of any reasonable use of the land. Poster Advertising involved the condemnation of all but a small portion of a lot. The zoning board denied a variance to permit the construction of outdoor advertising signs, and our Supreme Court reversed. In Jacquelin, we quoted the following passage from that case:
The size and dimension of the land as presently constituted prevent the construction and use thereon of any residence property. The conclusion of the board to the contrary was not justified. In fact, the size and dimension permit a very limited number of productive uses, the most likely and practical being that contemplated. If this use is denied, the owner will be compelled to continue to pay taxes thereon, maintain the actual surface and adjoining sidewalks in a clean and reasonably safe condition in order to escape possible damage claims, without any return from the use of the property whatsoever.
Of course, an economic hardship is not sufficient in itself to warrant the grant of a variance . . . . But this is not a case of "economic hardship" such as where the owner seeks to use the land in a more profitable manner. This is a case
wherein any productive use of the land will be denied altogether. It is a case of the existence of a substantial hardship peculiar to this particular land. . . .Jacquelin, 312 A.2d at 125-26 (citations omitted).
Thus, in cases involving lots of a reduced size, a zoning hearing board is obligated to grant variances because denying the same would be tantamount to prohibiting any construction at all on such lots. Id. See also Tinicum Township v. Jones, 723 A.2d 1068, 1071 (Pa. Cmwlth. 1998) ("It is well established that a preexisting lot which has been rendered undersized by the subsequently enacted zoning requirement must be permitted either as a nonconforming lot or by a variance, to avoid a confiscation of property. Jacquelin...."); Rudd v. Lower Gwynedd Township Zoning Hearing Board, 578 A.2d 59, 62 (Pa. Cmwlth. 1990) ("As we pointed out in Jacquelin, refusal to grant the variances in a 'small lot' case would effectively preclude the landowner from obtaining any reasonable use of the land.") Based on our review of the record and applicable law, we conclude that the ZHB did not err or abuse its discretion in granting Applicants' variance request.
Moreover, the ZHB followed the requirements of Ordinance section 507.11, finding that the sewage permit obtained by Applicants evidenced compliance with Ordinance section 507.11A.3 (Sewage Disposal) but specifically not waiving the yard setback and "other standards" requirements governing the use of nonconforming lots set forth in section 507.11.
The Township also argues that the mere fact that Applicants' lot is nonconforming does not mean that Applicants are excused from MPC provisions governing subdivisions, specifically citing section 508(4)(ii) of the MPC, 53 P.S. §10508(4)(ii). According to the Township, "the converse of [section 508(4)(ii)] is that after five years from approval, any aspect of development not commenced is subject to a change in any township ordinance." (Township's brief at 14-15.) The Township relies on this provision of the MPC to contend that Applicants' lot is now subject to the requirements of other Township ordinances, including its Subdivision and Land Development Ordinance (SALDO), and suggests that a future purchaser of Applicants' property might be denied a building permit and then sue the Township.
Section 508(4)(ii) of the MPC, 53 P.S. §10508(4)(ii), states as follows:
When an application for approval of a plat, whether preliminary or final, has been approved without conditions or approved by the applicant's acceptance of conditions, no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the approved development in accordance with the terms of such approval within five years from such approval.
However, the ZHB correctly points out that this matter involves neither a subdivision nor land development as those terms are defined by the MPC, and, therefore, section 508(4)(ii) of the MPC is inapplicable. Martorano v. Board of Commissioners of Cheltenham Township, 414 A.2d 411 (Pa. Cmwlth. 1980) (holding that a township could not apply its SALDO to regulate the rebuilding of a dinner theater, a legal nonconforming use, when the rebuilding did not involve a subdivision or land development as those terms were defined by the MPC).
See section 107 of the MPC, 53 P.S. §10107. --------
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 24th day of April, 2012, the order of the Court of Common Pleas of Lackawanna County, dated October 15, 2010, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge