Opinion
No. 1770 C.D. 2008.
Argued: June 11, 2009.
Filed: July 24, 2009.
BEFORE: HONORABLE PELLEGRINI, Judge; HONORABLE BUTLER, Judge; HONORABLE FRIEDMAN, Senior Judge.
OPINION NOT REPORTED
John J. Miravich and Patricia J. Miravich (together, Objectors) appeal from the August 29, 2008, order of the Court of Common Pleas of Berks County (trial court) denying Objectors' appeal and sustaining the decision of the Zoning Hearing Board of the Township of Alsace (ZHB), which granted a variance to Metrodev V, L.P. (Landowner). We affirm.
Landowner owns 47.29 acres of former farmland (Property) extending over three municipalities, Alsace Township (Township), Lower Alsace Township (Lower Alsace) and Exeter Township (Exeter), on which it plans to develop a thirty-three-lot residential subdivision (Subdivision). The land situated in the Township (Township Property) is zoned R-2 — Woodland Conservation and Rural Farm Zoning District (R-2 District), and, in conformity with the Township Zoning Ordinance's (Ordinance) lot size and density regulations, Landowner plans to develop six or seven three-acre lots in that portion of the Subdivision. Section 401 of the Ordinance allows, but does not encourage, residential uses, provided that there is sufficient space available for on-lot sewage disposal that would not create any menace to public health and that natural features are not unduly disturbed. Section 402 of the Ordinance provides that single-family, detached dwellings are uses by right in the R-2 District. (ZHB's Findings of Fact, Nos. 2-6.)
Landowner originally planned the Subdivision with one access road located in Exeter; however, the Township Planning Commission (Commission) required Landowner to construct a second access road in the Township for safety reasons. If constructed as planned, the second road will violate section 624.B of the Ordinance, which requires a minimum buffer zone of fifty feet along all areas delineated as wetlands and prohibits the removal of existing natural vegetation and the installation of sewage disposal systems. On or about June 22, 2007, Landowner submitted a zoning application to the Township, seeking a variance from section 624.B of the Ordinance. (ZHB's Findings of Fact, Nos. 7-11, 13.) The ZHB held a hearing on the application, where Landowner and Objectors presented evidence.
In support of its application, Landowner offered the testimony of Brian K. Kobularcik, Landowner's vice-president of development and a professional engineer. Kobularcik explained that the Township Property's physical characteristics, including its wetlands and steep slopes, make it impossible to construct the required second access road and adjacent storm water drainage system in strict conformance with the Ordinance. Kobularcik stressed that the proposed location for the road and drainage system was the most feasible because it was the only area with adequate road frontage and, thus, would require only a variance from the Ordinance's wetland buffer zone regulations. Kobularcik explained that, if the road were placed elsewhere, Landowner would need a variance from both the wetland buffer zone regulations and the Ordinance's steep slope regulations. Kobularcik also testified that: the surrounding area is residential in nature; the Subdivision plans are consistent with the Ordinance and the R-2 District; the unique physical characteristics of the Township Property create an unnecessary hardship; and the requested variance would be the least amount of deviation from the Ordinance's requirements that would relieve that hardship. He also stated that it was not financially feasible for the Property to use the land for farming. (R.R. at 15a-28a, 31a-32a, 42a-43a.)
On cross-examination, Kobularcik acknowledged that Landowner did not examine whether it would be financially feasible to develop the Property as Objectors suggested, with homes only in Lower Alsace and Exeter. Kobularcik also acknowledged that Landowner would have to do some grading into the wetlands; however, he stated that the Department of Environmental Protection (DEP) regulates the wetlands area and that Landowner cannot disturb the wetlands if DEP does not grant Landowner a permit.
Michael Moore, chairman of the Commission, testified that the Commission was requiring Landowner to construct a second access road for safety reasons. Moore also stated that, after considering the proposed location for that road and determining that this was the best location, the Commission recommended to the ZHB that the variance be granted contingent on Landowner obtaining the necessary state permits and approvals. According to Moore, an access road with adequate sight distances necessarily would infringe either on the wetland buffer zone area or on the steep slopes area of the Township Property, and the Commission believed that disturbing the steep slopes would create increased runoff directed toward the existing wetlands. Moore stated that the Commission also considered whether a cul-de-sac would address the safety concerns but concluded that the second access road was a better solution. (R.R. at 65a-72a.)
Section 905 of the Ordinance provides that the ZHB will forward applications for variances to the Commission for the opportunity to review and comment on the variance application at one of the Commission's regularly scheduled public meetings. (R.R. at 113a.)
In opposition to the variance request, John Miravich (Miravich) testified that the neighboring landowners rely on groundwater for drinking water and that preexisting traffic, water runoff and flooding issues on the road where the second access road would exit would adversely affect the neighbors. He stated that the Property had been farmland prior to Landowner's purchase, and there is no evidence to suggest that the Property could not be a viable farm again. However, Miravich admitted that, when Landowner purchased the Property, the only bidders were land developers. (R.R. at 86a-89a, 91a.)
Miravich believed the prior farm had been financially viable, but he acknowledged that he did not know how much the prior owner received for leasing the Property, what was farmed on the land or what the property taxes were on the farm. (R.R. at 86a-89a.) Emmanuel Eifert, a member of the audience, testified that he worked on the Property for twenty years, that the prior owners must have made money because the owner purchased a new car or truck every few years and that the farm was the prior owner's sole income for thirty years. (R.R. at 95a-96a.)
After considering the evidence, the ZHB concluded that Landowner established entitlement to a variance pursuant to section 910.2 of the Pennsylvania Municipalities Planning Code (MPC). Tracking the requirements for a variance set forth in that section of the MPC, the ZHB specifically found that: (1) the unique physical circumstances of the Township Property cause unnecessary hardship on Landowner that is not due to the circumstances or conditions generally created by the Ordinance in the neighborhood in which the Township Property is located; (2) due to these unique circumstances, it is not feasible for the Township Property to be developed in strict conformity with the Ordinance; (3) the unnecessary hardship was not created by Landowner; (4) the requested relief will not alter the essential character of the neighborhood, nor substantially or permanently impair the appropriate use or development of adjacent properties; (5) the variance represents the minimum variance that will afford relief and the least modification of the Ordinance's requirements; (6) the variance is consistent with the spirit, purpose and intent of the Ordinance; and (7) the variance will serve the best interests of the community and public welfare. (ZHB's Conclusions of Law, Nos. 1-12.) Therefore, the ZHB concluded that a variance was necessary to enable Landowner's reasonable use of the Township Property, and it granted the variance subject to certain conditions. Objectors appealed to the trial court, which affirmed.
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.
The ZHB required Landowner to obtain all the necessary permits from the DEP and the Pennsylvania Department of Transportation and stated that the variance will expire if Landowner fails to obtain a zoning permit, where required, within twelve months of the date of its decision. (ZHB's order.)
On appeal, Objectors assert that substantial evidence does not support the ZHB's determination that Landowner is entitled to a variance. We disagree.
Where, as here, the trial court takes no additional evidence, our scope of review is limited to determining whether the ZHB committed an error or an abuse of discretion. Laurel Point Associates v. Susquehanna Township Zoning Hearing Board, 887 A.2d 796 (Pa.Cmwlth. 2005), appeal denied, 588 Pa. 766, 903 A.2d 1235 (2006). This court may only conclude that the ZHB abused its discretion if its findings of fact are not supported by substantial evidence. Id. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).
1. Unique Physical Conditions
Objectors assert that because the wetlands and wetland buffer zone exist on other properties in the Township, which are subject to the same restrictions in order to protect the wetlands, the record does not support the ZHB's determination that the Township Property suffers from unique physical conditions. However, Kobularcik testified that the Township Property's steep slopes, wetlands and adjacent wetland buffer zone make it impossible for Landowner to build the required second access road without disturbing one or both areas. Further, Kobularcik and Moore explained that the most feasible site for the road and accompanying storm water drainage system is the one proposed by Landowner. We conclude that this evidence is adequate to support the ZHB's finding that unique physical characteristics on the Township Property created an unnecessary hardship affecting Landowner's reasonable use of the Township Property.
2. Unnecessary Hardship
Whether an applicant is seeking a dimensional or a use variance, the applicant must show that unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest. Great Valley School District v. Zoning Hearing Board, 863 A.2d 74 (Pa.Cmwlth. 2004), appeal denied, 583 Pa. 675, 876 A.2d 398 (2005). In Hertzberg v. Zoning Board of Adjustment, 554 Pa. 249, 721 A.2d 43 (1998), our supreme court concluded that the grant of a dimensional variance is of lesser moment than the grant of a use variance and, thus, is subject to less stringent standards. In a dimensional variance situation, courts may consider multiple factors in determining whether an applicant established unnecessary hardship, including: (1) the cost of strict compliance with the ordinance; (2) the economic hardship or burden that will result from denial of a variance; and (3) the characteristics of the surrounding neighborhood. Great Valley School District; Yeager.
By comparison, in a use variance situation, a successful application must establish that: (1) the physical features of the property are such that it cannot be used for any permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property has no value for any purpose permitted in a zoning ordinance. Segal v. Zoning Hearing Board, 771 A.2d 90 (Pa.Cmwlth. 2001).
Relying on Segal v. Zoning Hearing Board, 771 A.2d 90 (Pa.Cmwlth. 2001), Objectors also assert that Landowner's request to disturb the wetland buffer zone is a request for a use variance subject to the more stringent unnecessary hardship requirements. Landowner responds that Segal is distinguishable and that, because the wetland buffer zone is akin to a setback requirement, its variance request is dimensional in nature and subject to the relaxed unnecessary hardship standards. We agree with Landowner.
In Segal, the landowner sought to construct an additional building, driveway and access roads on his property, which required him to seek a variance from the local zoning ordinance's prohibition against filling wetlands. During the hearing, the landowner acknowledged that he would construct the additional building and use the already existing access road even if he is denied the variance. On appeal from the denial of the variance request, the landowner asserted that the variances to fill the wetlands were dimensional in nature; however, we rejected this argument, stating: "[e]xamples of dimensional variances include set backs, lot width, building area and impervious surface limitations and minimum lot areas. . . . [W]e do not believe that the prohibition against filling wetlands . . . constitutes a dimensional variance. This prohibition is substantially different in character than a set back." Id. at 94-95 (emphasis added).
Segal is readily distinguishable. First, unlike the ordinance in Segal, section 624 of the Ordinance does not regulate the wetlands area beyond establishing the wetland buffer zone and requiring landowners to seek the necessary wetlands disturbance permits from the DEP and the Army Corps of Engineers. (R.R. at 108a.) Moreover, unlike the landowners in Segal, Landowner cannot go forward with developing the Township Property without a variance because the Commission requires the second access road. Finally, because Landowner requests a variance only to encroach upon the fifty-foot wetland buffer zone, not to fill the wetlands themselves, the variance requested is substantially similar to a request for a variance from a setback requirement. Objectors next assert that, even under the relaxed variance standards of Hertzberg, Landowner failed to prove that it would suffer an unnecessary hardship if it was denied the variance to construct the access road. First, according to Objectors, the "uncontroverted evidence" of record establishes that the Township Property can be used as a farm without the access road, and, therefore, there is no unnecessary hardship if Landowner is denied the variance. Again, we disagree.
The Ordinance provides no definition for "setback" or "buffer zone." However, the dictionary defines "setback" as the "minimum amount of space required between a lot line and a building line. . . ." Black's Law Dictionary 1404 (8th ed. 2004). A "buffer zone" is "[a]n area of land separating two different zones or areas to help each blend more easily with the other. . . ." Id. at 207. Here, the wetland buffer zone is not restricted wetlands but a fifty-foot area that separates the wetlands from the rest of the zoning district. Thus, we conclude that the wetland buffer zone is a dimensional restriction on land subject to the relaxed variance standards set forth in Hertzberg.
The "uncontroverted evidence" Objectors rely upon is Miravich's testimony that he believed the farm was profitable because the prior owner leased the farmland and was able to pay her bills. However, on cross-examination, Miravich admitted that he did not know how much the lease was, how much the farm made or how much the taxes were; he did not know whether the lease amount covered the taxes; and the only bidders on the Property were other developers. In contrast, Kobularcik testified that it was not financially feasible to maintain the Property as a farm. This testimony provides substantial evidence to support the ZHB's conclusion that Landowner would suffer an unreasonable hardship if not granted a variance.
Objectors next argue that Landowner will not suffer unnecessary hardship because it will not suffer financially if it is required to develop only the Lower Alsace and Exeter portions of the Property, thus reducing the number of lots and obviating the need for the second access road in the Township. However, Objectors' proposed solution would preclude all reasonable use of the Township Property.
Objectors rely on Appeal of Boyer, 960 A.2d 179 (Pa.Cmwlth. 2008), Township of East Caln v. Zoning Hearing Board, 915 A.2d 1249 (Pa.Cmwlth. 2007), and Yeager, for the proposition that a landowner's inability to use his or her property in the exact manner desired is not sufficient to establish unnecessary hardship associated with the property where there are other, dimensionally-compliant permitted uses possible. However, these cases are distinguishable.
In Boyer, Township of East Caln and Yeager, the landowners sought dimensional variances, asserting that some physical feature of their properties precluded the reasonable use of the properties and resulted in unnecessary hardship. We rejected these arguments, noting that: a variance may be granted only on proof that a substantial burden attends all dimensionally compliant uses of the property, we observed that the properties in these cases were well-suited for the purposes for which they were zoned, and the landowners actually could continue to use their properties for permitted uses. In contrast, the already existing permitted use, farming, is not financially feasible and would result in an unnecessary hardship on Landowner if it was required to continue that use.
Property owners have a constitutional right to use and enjoy their property as they wish, unfettered by governmental interference except as necessary to protect the interests of the public and of neighboring property owners. In re Realen Valley Forge Greenes Associates, 576 Pa. 115, 838 A.2d 718 (2003). Section 402 of the Ordinance provides two permitted uses in the R-2 District, non-intensive farming/agriculture and single family homes. (R.R. at 103a.) Having concluded that Landowner would suffer an unnecessary hardship if required to maintain the Property as a farm, only one permitted use remains for Landowner, i.e., single family homes. However, as found by the ZHB, Landowner's development of the Township Property was hindered by the unique physical conditions of the Township Property. Given the unreasonable financial burdens involved, the unique physical conditions of the Township Property and the residential nature of the surrounding area, we are satisfied that the ZHB did not err in finding that Landowner would suffer an unnecessary hardship if denied the variance.
Section 402 of the Ordinance also permits accessory uses, such as accessory structures, home offices, home businesses and certain signs.
3. Self-Inflicted Hardship
Objectors next contend that any hardship suffered by Landowner results from Landowner's desire to "so intensively develop the Subject Property that it will require two access roads." (Objectors' brief at 15.) However, this argument is the reiteration of Objectors' assertions that Landowner could limit development solely to Lower Alsace and Exeter, which we already have rejected. Moreover, Kobularcik testified that the unique physical conditions that dictate the placement of the second access road and storm water drainage system were not created by Landowner. (R.R. at 27a.) We conclude that this evidence is adequate to support the ZHB's finding that Landowner's unnecessary hardship is not self-inflicted.
4. Character of Neighborhood
Citing Miravich's testimony that the area around the Subdivision is rural, Objectors next assert that the grant of a variance to construct the access road and storm sewer system will adversely affect the public health, safety and welfare of the neighborhood. However, by finding that the variance would not alter the essential character of the neighborhood, nor substantially or permanently impair the use or development of the adjacent properties nor be detrimental to the public welfare, the ZHB implicitly rejected Miravich's testimony and accepted the contrary testimony of Kobularcik and Moore that Landowner's development plans were consistent with the surrounding area. (R.R. at 27a-28a, 65a-66a, 69a.) As the fact finder in zoning cases, the ZHB is entitled to determine witness credibility and evidentiary weight, and we are bound by those determinations on appeal. In re Rural Route Neighbors.
5. Minimum Relief
Objectors finally argue that Landowner failed to prove that the variance it sought was the minimum variance that would afford relief, reiterating that the Township Property could be left undeveloped or be used as a farm; however, we have already discussed and rejected these arguments. Furthermore, Kobularcik and Moore testified that this was the minimum variance required, explaining that, due to the steep slopes, the wetland buffer zone and wetlands, the proposed location required a variance only from the wetland buffer zone, and any other location in the Township Property would either violate sight distance requirements or require two variances, one for the wetland buffer zone and one for the steep slopes.
Moreover, based on Moore's testimony that the Commission considered a cul-de-sac but ultimately concluded that the access road was the better choice, (R.R. at 71a), we reject Objectors' assertions that Landowner could construct a cul-de-sac instead of the second access road. Further, based on the testimony of Kobularcik and Moore that Landowner could not locate a second access road in Exeter or Lower Alsace because of sight distance problems, (R.R. at 31a, 38a, 72a), we also reject Objectors assertions that Landowner could locate the second access road in those townships. Accordingly, we conclude that the ZHB properly held that the requested variance was the minimum relief required to afford Landowner relief. Because the record contains substantial evidence to support the ZHB's findings of fact and decision to grant Landowner a variance, we affirm.
ORDER
AND NOW, this 24th day of July, 2009, the order of the Court of Common Pleas of Berks County, dated August 29, 2008, is hereby affirmed.