Opinion
No. 1429 C.D. 2012
05-31-2013
Jeffrey Landis & Marie Landis and Michael Marano & Janine Marano v. Bedminster Twp. Zoning Hearing Board & Hugh M. Pepper Appeal of: Hugh M. Pepper
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Hugh M. Pepper (Pepper) appeals from an order of the Court of Common Pleas of Bucks County (trial court) reversing the Bedminster Township (Township) Zoning Hearing Board's (Board) decision granting Pepper a variance to store and sell cars from a barn on his property. For the reasons that follow, we affirm.
Pepper owns property located at 1101 Briar Way, Perkasie, which is zoned as an Agriculture Preservation Zoning District. His property is at the end of a cul-de-sac, consists of 22 acres, and contains a two-story detached house and a barn which holds farming equipment used in connection with the permitted accessory farming use. Pepper also stores his collection of classic and exotic cars in the barn. Jeffrey and Marie Landis (Intervenors) live adjacent to Pepper's at 1103 Briar Way.
Pepper had been privately purchasing and selling cars for some time and had been using the barn on his property to store them. He sought a Pennsylvania car dealership license from the Board of Vehicle Sales in order to avoid paying sales tax when he purchased vehicles. To get the license, he had to list his home as the proposed location of the dealership, but such a use was not permitted in the zoning district. He therefore filed an application for a use variance on August 25, 2011.
Before the Board, Pepper testified that his proposed use would involve trading or selling "classic, exotic and high-line vehicles," (Reproduced Record [R.R.], at 93a), and there would not be a showroom, outdoor display of vehicles, exterior lighting, or any other external indicia of a dealership. He said that he did not anticipate having more than two to four vehicles on the property at any given time, with a maximum of five, given the permit restrictions. Pepper said that he had been involved in these sales for several years and that most transactions were dealer-to-dealer, wholesale transactions, so there would be minimal impact on traffic within the area. He further testified that he would not have any employees and had already applied for and was granted a zoning certificate for a No-Impact Home-Based Business, but had to obtain a dealer's license from the Board of Licensing, and as a requirement to receive the license, needed zoning permission for vehicle sales. Pepper said that he was "willing to make this variance extinguishable if this property is ever sold or transferred," (id.), because it was solely for his own use. He said that the nearest neighbor was approximately 800 feet away from the barn he would use for the vehicles. Pepper further testified that the purpose for seeking the license was that he would not incur tax liability, whereas being a collector, which he had been engaged in for several years, he was subject to tax liability. Thus, when he would conduct a dealer trade of two cars, he would only have to pay taxes on the difference in value between the two vehicles.
The Township Zoning Ordinance (Ordinance) defines a No-Impact Home-Based Business (C9 Business) as:
A business or commercial activity administered or conducted as an accessory use to a residential use that is clearly secondary to the residential use of the dwelling. The activities shall not involve any customer, client, or patient traffic, either vehicular or pedestrian, in excess of that normally associated with a residential use, and shall not involve pick-up, delivery, or removal functions to or from the premises in excess of that normally associated with a residential use. The activity shall satisfy the following requirements:
a. The activity shall be compatible with the residential use of the property and the surrounding residential uses.
b. The activity shall not employ anyone other than family members residing in the dwelling.
c. There shall be no display or sale of retail goods, and no stockpiling or inventory of a substantial nature.
d. There shall be no outside appearance of a business use including, but not limited, parking, signs, or lights.
e. The activity may not generate any solid waste or sewage discharge, in volume or type that is not normally associated with a residential use in the neighborhood.
f. The activity shall be conducted only within the residential dwelling and may not occupy more than twenty-five percent (25%) of habitable floor area.
Pepper agreed to the following conditions on the variance: (1) the variance would cease to exist if Pepper ever transferred the property; (2) there would be no outside storage of any vehicles or parts; (3) there would be no change to the external appearance of the property aside from a home occupation sign which was one foot tall and two feet wide and was not visible from the road; (4) prospective buyers may only access the property by invitation; (5) no more than five vehicles or parts of vehicles may be stored on the property at a time; and (6) no one other than the owners of the property would work as employees of Pepper's business. He also said there would be no flatbed truck deliveries of vehicles.
On cross-examination, Pepper testified that finding an off-site location from which he could conduct his business was never a consideration because it would be financially impractical. He said that while he has a good relationship with his neighbors, he knew some had expressed concerns over his application.
Mr. Landis testified that he has lived at 1103 Briar Way, next to Pepper's property, since May, 2005. He said that he has a good relationship with Pepper, but was leery of Pepper's application because of the negative impact such a business might have on the neighboring property values. He also said that, given the high-value homes in the neighborhood, adding a business of buying and selling high-end and exotic cars would "simply enhance[] a security risk." (Id., at 124a.) Mr. Landis also noted that, because the street is a cul-de-sac, "[e]very method of ingress and egress onto Mr. Pepper's property is in front of every home and through that cul-de-sac." (Id., at 125a.) Mr. Landis further testified that he was concerned that unfamiliar traffic would increase as the business grew and saw more success. He also said that it would be an unfair burden on Pepper's neighbors to have to be the ones to inform the Township if Pepper failed to adhere to the conditions of the variance.
A number of other neighbors indicated that they objected to the application for the same reasons Mr. Landis voiced; at least one neighbor indicated that he did not object to the application and did not see any potential impact on the neighborhood. One neighbor noted that Pepper had already been buying and selling cars from his home-based business, and that the license application was merely for tax purposes.
Based on the testimony and evidence presented at the hearing, the Board noted that Pepper had been privately buying and selling vehicles for some time, and could continue to do so without any approvals, so there would not be any more traffic in the area than there had already been. It concluded that "the use shall be a business or commercial activity administered or conducted as an accessory use to a residential use." (Id., at 19a.) The Board further concluded that the use Pepper proposed was "compatible with the residential use of the property and the surrounding residential uses," (id.), and the variance was de minimis. It therefore granted the variance to permit Pepper to use his property as a C9 Business so he could meet state vehicle dealership licensing requirements, subject to the conditions established at the hearing.
Intervenors appealed to the trial court, which reversed the Board's decision. In its opinion pursuant to Pa. R.A.P. 1925(a), the trial court held that Pepper's proposed use did not qualify as a C9 Business for three reasons: (1) a sign would have to be placed outside the barn to meet Pennsylvania dealership licensing requirements; (2) buying, selling, and storing vehicles would not be conducted within the residential dwelling, but in an accessory barn on the property; and (3) the business would involve pick-up and delivery traffic that would exceed normal residential use. It further opined that Pepper failed to prove unnecessary hardship, which is required in seeking a use variance; the only hardship demonstrated was financial, and that was insufficient. The trial court therefore concluded that the Board erred as a matter of law in granting the variance. This appeal followed.
Where a trial court takes no additional evidence, our scope of review is limited to determining whether the zoning board abused its discretion or committed an error of law. North Chestnut Hill Neighbors v. Zoning Board of Adjustment of Philadelphia, 928 A.2d 418, 423 n.6 (Pa. Cmwlth. 2007). A zoning hearing board abuses its discretion only where its findings are not supported by substantial evidence. Id.; see also 2 Pa. C.S. § 754(b). Substantial evidence is such relevant evidence as a reasonable person might consider sufficient to support a conclusion. Chestnut Hill Neighbors, 928 A.2d at 423 n.6. --------
On appeal, Pepper argues that this Court should recognize a de minimis exception in a situation such as this, where the proposed use is essentially already occurring and the conduct may continue even without the variance. He avers that because he may already conduct this private business from his property, and has for some time without any negative effect, the Board's decision was proper.
A party seeking a variance bears a heavy burden of demonstrating substantial and compelling reasons for granting the variance. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). The party seeking a variance must show:
(1) an unnecessary hardship stemming from unique physical circumstances or conditions of the property will result if the variance is denied; (2) because of such physical characteristics or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the ordinance; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.Oxford Corp. v. Zoning Hearing Board of Oxford, 34 A.3d 286, 295-96 (Pa. Cmwlth. 2011) (internal citations omitted); see also Section 910.2 of the 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. As to a use variance specifically, the applicant must show that the physical characteristics of the property are such that it either could not be used for any permitted purpose, such use would be prohibitively expensive, or the lot is rendered valueless for any permitted purpose. Oxford Corp., 34 A.3d at 295.
First, Pepper has failed to demonstrate an unnecessary hardship which would warrant a variance. The property is currently used for both residential and accessory agricultural purposes, both of which are permitted by the Ordinance. Therefore, the only hardship Pepper truly faces by being denied the variance is economic. See Wilson v. Plumstead Township Zoning Hearing Board, 594 Pa. 416, 430, 936 A.2d 1061, 1070 (2007) (quoting City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 60, 559 A.2d 896, 903 (1989)) ("[M]ere economic hardship will not of itself justify a grant of a variance."). With this in mind, the trial court properly found that Pepper failed to show unnecessary hardship sufficient to warrant a use variance.
As to the de minimis doctrine Pepper seeks to have this Court apply, this doctrine has repeatedly been rejected in a use variance case. See Rollins Outdoor Advertising, Inc. v. Zoning Board of Adjustment, 529 A.2d 99, 103 (Pa. Cmwlth. 1987) (quoting Cook v. Zoning Hearing Board of Ridley Township, 408 A.2d 1157, 1159 (Pa. Cmwlth. 1979)) ("[I]t is difficult to conceive of a use variance which would be truly 'de minimis.'"). This is because "the effect on the public interest of a use variance usually is greater than the effect of a variance necessitated by only a minor deviation from a dimensional requirement." Evans v. Zoning Hearing Board, 732 A.2d 686, 691 n.4 (Pa. Cmwlth. 1999) (citing Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 490, 263 A.2d 426, 431 (1970)). Nonetheless, Pepper notes that none of the cases in which we rejected the application of this doctrine to a use variance application involved conduct which had already been and could continue to occur on the property, even without the variance.
While we understand that Pepper is already utilizing his property in the manner which he proposes to use it under the variance, the fact remains that the de minimis doctrine has never been applied in the case of a use variance, and established law blatantly rejects its application in these instances. Further, his argument essentially advances an argument for a variance by estoppel, for which the record provides no basis. See Pietropaolo v. Lower Merion Township Zoning Hearing Board, 979 A.2d 969, 980 (Pa. Cmwlth. 2009) (requiring, among other factors, demonstration of unnecessary hardship to warrant a variance by estoppel). Pepper is not engaged in an unlawful use of the property and, as discussed above, the only hardship he faces if the variance is denied is economic, which is insufficient.
Pepper also argues that the Board properly determined that his proposed use constituted a C9 No-Impact Home-Based Business, pursuant to the Ordinance. However, as discussed by the trial court, Section 405.C.9 of the Ordinance requires that no signage be present and that the business be conducted within the residential dwelling. Pepper testified that the vehicles are stored in a barn and that he would place a sign outside the barn pursuant to Pennsylvania vehicle dealership licensing requirements. While Pepper suggests that such a reading of the Ordinance is "hyper-technical," the Ordinance appears quite specific and restricts a home-based business to a residential dwelling and prohibits any exterior indicia of a business. See 1 Pa. C.S. §1903(a) ("[W]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage."). Thus, the requirements for a C9 Business have not been met and the trial court's decision reversing the Board was proper.
Accordingly, we affirm the order of the trial court.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 31st day of May, 2013, the order of the Court of Common Pleas of Bucks County, dated June 25, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
(Township of Bedminster Zoning Ordinance §405.C.9.)