Opinion
No. 2212 C.D. 2012
08-08-2013
William Crothers, Appellant v. Springfield Township Zoning Hearing Board
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
William Crothers appeals an order of the Court of Common Pleas of Delaware County (trial court) affirming the Springfield Township Zoning Hearing Board's grant of a variance to Leonard and Coleen Jefferis (Applicants). The trial court found that Applicants would suffer an unnecessary hardship if a variance were not granted. We affirm.
Applicants reside in a "Residential District" at 432 West Springfield Road, Springfield, Pennsylvania. The property was created when Crothers subdivided his own property. Applicants purchased the property in 2002 from a development company, which had constructed a home on the property.
The Springfield Township Zoning Ordinance (Zoning Ordinance) requires that "[t]here shall be two side yards. The aggregate width of the side yards shall not be less than 30 feet, and neither side shall be less than 10 feet in width...." SPRINGFIELD TOWNSHIP ZONING ORDINANCE §143-16(A)(8) (2010). Applicants' lot currently conforms with the Zoning Ordinance. The lot is 70 feet wide and Applicants' home is 40 feet wide. The side yards are each 15 feet wide, satisfying the 30-foot aggregate side-yard setback requirement. Applicants' home currently occupies 12 percent of the property, and the Zoning Ordinance permits homes to occupy up to 30 percent of the property.
Applicants applied for a variance to construct an addition to the side of their home that measures 8 feet by 30 feet. The addition will result in the residence covering an additional 2.2 percent of the property. The addition will reduce Applicants' side-yard setback from the minimum of 10 feet to a setback of 7 feet. It will reduce the aggregate of the two side-yard setbacks from the existing width of 30 feet to a total of 22 feet. The addition will not require the removal of bushes and trees that presently screen the side of Applicants' house from the adjacent property.
On February 23, 2012, a hearing was held before the Zoning Hearing Board on the merits of Applicants' variance. Applicants argued that their lot was uniquely narrow and the variance was necessary for reasonable use of their property. Crothers, who owns the adjoining property, objected to the variance. Crothers argued that no hardship existed. Alternatively, Crothers argued that if a hardship did exist, it was created by Applicants when they constructed a swimming pool behind their home, which prevented them from expanding the rear of the home. Crothers presented no documentary evidence and no credible testimonial evidence. At the conclusion of the hearing, a motion to grant the variance was not seconded; the Zoning Hearing Board granted a continuance and the parties submitted briefs.
On March 22, 2012, the Zoning Hearing Board reconvened and unanimously approved the variance. The Board held that Applicants' requested variance was de minimis and that they would suffer unnecessary hardship if the variance were not granted. Crothers appealed to the trial court, which heard oral argument. The trial court affirmed the Zoning Hearing Board and this appeal followed.
On appeal, Crothers makes three arguments. First, Crothers argues that the Zoning Hearing Board erred in granting a variance because Applicants failed to meet the requirements for a variance in Section 910.2 of the Pennsylvania Municipalities Planning Code, 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. Second, Crothers argues that the Board erred in concluding that Applicants requested only a de minimis variance. Finally, Crothers argues that the trial court erred in finding that he waived his argument that the variance was not de minimis because he did not raise it in his Notice of Land Use Appeal.
This Court's review in land use appeals where the trial court takes no additional evidence is limited to determining whether the zoning hearing board committed an error of law or abused its discretion. Coal Gas Recovery, L.P. v. Franklin Township Zoning Hearing Board, 944 A.2d 832, 837-38 (Pa. Cmwlth. 2008).
Having reviewed the record and the arguments of the parties, we hold that the trial court properly affirmed the Zoning Hearing Board's decision to grant Applicants' dimensional variance because Applicants presented sufficient competent evidence to satisfy the requirements for a variance. Because the trial court accurately articulated and thoroughly analyzed the issues, and correctly applied the law, this Court affirms the trial court's order on the basis of the well-reasoned opinion by the Honorable Charles B. Burr, II in Crothers v. Springfield Township Zoning Hearing Board (Delaware County Court of Common Pleas, No. 12-03466, filed January 25, 2013).
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 8th day of August, 2013, the order of the Court of Common Pleas of Delaware County dated October 31, 2012, in the above-captioned matter is hereby AFFIRMED on the basis of the well-reasoned opinion by the Honorable Charles B. Burr, II in Crothers v. Springfield Township Zoning Hearing Board (Delaware County Court of Common Pleas, No. 12-03466, filed January 25, 2013).
/s/_________
MARY HANNAH LEAVITT, Judge
DISSENTING OPINION BY JUDGE COHN JUBELIRER
I respectfully, and reluctantly, dissent. I do not believe the Applicants have shown the hardship that we have previously required others to show in order to meet the requirements for a variance and I do not believe that the variance is de minimis under our case law. Therefore, I would reverse the Order of the trial court.
One of the requirements for a variance under Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC) is hardship: that because of a unique physical condition or circumstance of the property, "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." 53 P.S. § 10910.2(a)(2) (emphasis added). While the hardship required to establish an entitlement for a dimensional variance "is less than that needed to obtain a use variance," an applicant must still "demonstrate something more than a mere desire to develop a property as it wishes or that it will be financially burdened if the variance is not granted." Singer v. Philadelphia Zoning Board of Adjustment, 29 A.3d 144, 149-50 (Pa. Cmwlth. 2011).
Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
Applicants have a home on the Property, in which they reside. This shows that it is possible to make reasonable use of the Property without a variance. Our previous cases have held that a desire for extra space is a purely personal hardship that will not justify a variance. For example, in Aquaro v. Zoning Board of Adjustment, 673 A.2d 1055, 1062 (Pa. Cmwlth. 1996), this Court held that a dentist failed to show undue hardship that would justify a variance allowing him to expand his practice where he admitted that he could "operate his practice in a limited capacity" without the addition. Similarly, in Larsen v. Zoning Board of Adjustment, 654 A.2d 256, 260 (Pa. Cmwlth. 1995), this Court held that applicants failed to show hardship where they desired an outdoor deck to provide space for their two-year-old child to play. In Ottaviano v. Zoning Board of Adjustment, 376 A.2d 286, 288 (Pa. Cmwlth. 1977), this Court rejected the argument that a small kitchen and the lack of room for a greenhouse constituted an undue hardship. Although I empathize with the Applicants' desire for more space, I do not believe that upholding the Board's grant of a variance in this case is in line with our Court's case law or the requirements of the MPC.
This Court has reached similar holdings in a number of unpublished cases as well. See, e.g., Donovan v. Philadelphia Zoning Board of Adjustment (Pa. Cmwlth., No. 1164 C.D. 2011, filed March 21, 2012) (need for an off-street space in which to park while traveling not undue hardship); Mills v. City of Pittsburgh Zoning Board of Adjustment (Pa. Cmwlth., No. 1345 C.D. 2010, filed May 3, 2011) (inability to build a sunroom not undue hardship); Center City Residents' Association v. Zoning Board of Adjustment (Pa. Cmwlth., No. 943 C.D. 2011, filed March 21, 2012) (desire for additional living space not undue hardship that would justify addition of another floor); Worth v. Solebury Township Zoning Hearing Board (Pa. Cmwlth., No. 1983 C.D. 2007, filed September 8, 2008) (inability to construct a swimming pool and a garage not undue hardship). --------
I also do not believe that the variance in this case is de minimis in the way we have previously applied that concept. While the expansion would only result in an additional 2.2% coverage, the variance is not from the coverage ratio but from the side-yard setbacks and the aggregate side-yard setbacks. Looking at the degree of infringement on the side-yard setbacks and aggregate side-yard setbacks, the addition will constitute a 30% infringement on the side-yard setback on the side on which it is built and a 26.7% infringement on the aggregate side-yard setback. Given the substantial deviations from the standards upon which the variance was sought, I do not believe this would constitute de minimis infringements under our case law. See, e.g., Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 163 (Pa. Cmwlth. 1997) (a 34% deviation from a front setback requirement was "plainly not de minimis"); Leonard v. Zoning Hearing Board of the City of Bethlehem, 583 A.2d 11, 13 (Pa. Cmwlth. 1990) (a 6% deviation from a minimum lot size requirement was not de minimis).
Because I do not see how we can reconcile this case with the previous decisions of our Court, I would reverse the Order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge