Opinion
No. 1821 C.D. 2012
07-10-2013
Williams Township Board of Supervisors v. Williams Township Zoning Hearing Board and Michael Arthur Ivenz and Patty Jo Ivenz John Jepsen, David Fredericks, and The Bougher Hill and Sunnyside Coalition v. Zoning Hearing Board of the Township of Williams, and Michael Arthur Ivenz and Patty Jo Ivenz Appeal of: Michael Arthur Ivenz and Patty Jo Ivenz
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Michael Arthur Ivenz and Patty Jo Ivenz (the Ivenzs), appeal from the order of the Court of Common Pleas of Northampton County (trial court) reversing the decision of the Zoning Hearing Board of Williams Township (ZHB) which granted the Ivenzs' application for a use variance. After review, we affirm.
The Ivenzs own a 14-acre tract of land located at 370 County Line Road East in Williams Township. The property is located in the Township's "A" Agricultural District and contains a residence which was formerly occupied by Mr. Ivenz's family and is currently being renovated by the Ivenzs for their own use. The property also includes a barn and storage areas used by Mr. Ivenz in his building material supply business. The material being stored on the property includes large stones and reclaimed lumber from torn down structures, which the Ivenzs would like to sell wholesale and "by appointment only" from the property. The property is also operated as a farm, primarily run by Mrs. Ivenz, for growing lavender and raising goats.
After an inspection of the property by the Township's zoning officer, Richard Adams, the Ivenzs applied for a permit to continue their use of the property for storing and selling building materials. By letter dated August 8, 2011, the use permit was denied on the grounds that the "stone mason and related materials sales business" was not a permitted use in the "A" Agricultural Zoning District under Article IV, Section 402 of the Williams Township Zoning Ordinance (Ordinance). The Ivenzs then applied for a use variance with the ZHB, which held a hearing on October 24, 2011. Mr. and Mrs. Ivenz appeared at the hearing and testified.
Certified Record, Item 5.
The Ordinance permits in the "A" Agricultural zoning district a single-family detached dwelling and crop farming/orchards, animal husbandry, and plant nurseries, (among others) by right. Article IV, Section 402 A (1), B (1), (2) and (3) of the Ordinance.
After the hearing, the ZHB voted to approve the Ivenzs' application and granted their use variance. The Williams Township Board of Supervisors (Board of Supervisors) appealed the ZHB's decision to the trial court on December 16, 2011. On December 22, 2011, Williams Township residents John Jepsen and David Fredericks, along with The Bougher Hill and Sunnyside Coalition (collectively, Objectors), also filed an appeal. On August 31, 2012, without taking any additional evidence, the trial court reversed the ZHB's decision granting the Ivenzs' request for a variance. The Ivenzs have now appealed to this court.
The Ivenzs filed Notices of Intervention in both appeals on January 12 and 9, 2012, respectively. The matters were consolidated by order of the court dated May 1, 2012.
The Ivenzs present two questions for review. First, they argue that the trial court abused its discretion when it reversed the ZHB's decision on the basis that they had not met their burden of establishing their entitlement to a use variance. Second, the Ivenzs aver that the trial court erred in not ordering, sua sponte, a remand to the ZHB for additional evidence once it concluded that there was "a gratuitous record and absolutely no evidence whatsoever therein to establish a hardship . . . ." Appellants' Brief at 13.
The Ivenzs contend that the ZHB employed the proper test for determining whether they had met the requirements for granting a use variance and that this court should defer to the ZHB's findings that they had proved hardship if the variance was not granted, and that the continued use of the property for the stone mason and building material supply business would not be detrimental to the public health, safety, or welfare. In addition, they contend that the ZHB also found that granting the variance would not alter the essential character of the neighborhood or in any way impair the appropriate use or development of adjacent properties. Finally, the Ivenzs assert that the ZHB specifically limited the use variance by imposing conditions that they could operate the business only by appointment; that they could utilize only two acres near the center of the property for the business; that the business essentially remain a sole proprietorship with no other employees; and that the truck traffic associated with the business be limited to accessing the property on average of less than one truck per day.
The Board of Supervisors and Objectors argue that the ZHB abused its discretion in granting the variance requested by the Ivenzs because the record created before the ZHB did not include any evidence upon which it could have concluded that the physical conditions of the Ivenzs' property created an undue hardship for them, and that the only "hardship" asserted was financial. Objectors argue that there was no evidence that the Ivenzs were unable to make a reasonable use of the premises and, in fact, that there was evidence to the contrary. They point out that the Ivenzs testified that they were using the property for growing lavender and for raising goats, and that they were currently renovating the residence on the property for their own future use, all of which are permitted uses in the agricultural district. They further argue that allowing a business use in an agricultural district is contrary to the zoning scheme and thus would be detrimental to the public welfare and would also impair the appropriate development of neighboring properties. They argue that there was no evidence from which the ZHB could conclude that granting the variance was the minimum relief to enable the reasonable use of the property, when no such testimony or other evidence of the same was introduced at the hearing. Finally, they argue that by inserting "limitations" on the use variance, the ZHB essentially usurped the legislative powers of the Board of Supervisors and thus amended the zoning ordinance.
While it is not necessary for this court to address this last argument, we note only that Section 910.2(b) of the Pennsylvania Municipalities Planning Code, provides that, "[i]n granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the zoning ordinance." 53 P.S. § 10910.2(b).
In order to establish entitlement to a variance, an applicant must prove, inter alia, that: 1) the zoning ordinance imposes unnecessary hardship resulting from the unique physical characteristics of the property, as distinguished from hardship arising from the impact of the zoning regulation on the entire district; 2) because of such physical conditions there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; 3) the alleged hardship is not self-inflicted; 4) the required variance will not destroy the character of the neighborhood, nor be detrimental to the public welfare; and 5) granting a variance represents the minimum relief to enable the reasonable use of the property. 53 P.S. §10910.2(a); Valley View Civic Ass'n v. Zoning Bd. of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 640 (1983). The applicant seeking a use variance bears a heavy burden, which should only be granted sparingly and under exceptional circumstances. Rittenhouse Row v. Aspite, 917 A.2d 880, 885 (Pa. Cmwlth. 2006). Furthermore, in order to prove unnecessary hardship, the applicant must prove either that the physical features of the property are such that it cannot be used for a permitted purpose; that the property can be conformed for a permitted use only at a prohibitive expense; or that the property is valueless for any purpose permitted by the zoning ordinance. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 812 (Pa. Cmwlth. 2005). However, "[m]ere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance." Id.
Section 910.2(a) of the Pennsylvania Municipalities Planning Code, 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(a). --------
We agree with the Board of Supervisors and Objectors that there was no evidence from which the ZHB could have determined that the Ivenzs met their burden of proving entitlement to a use variance. There was no testimonial or documentary evidence indicating that unique physical characteristics of the property prevented the Ivenzs from using the property for a permitted purpose. In fact, as was pointed out by both the Board of Supervisors and Objectors, the Ivenzs admitted that they were using the property to grow lavender and to raise goats, both permitted uses in an agricultural district. The only evidence of hardship presented was arguably one of financial hardship, when Mr. Ivenz testified that he needed to use the property for his business because he lost the lease on his commercial space on Route 611 where he had previously stored the materials used in his business. Specifically, he testified that, "[i]f I'm not allowed to operate as a legal business, it would be an extreme hardship to my family and my children." Hearing of October 24, 2011, Notes of Testimony (N.T.) at 46. Without presenting evidence of hardship related to the condition of the land as required in order to establish their right to a variance, the Ivenzs failed to carry their burden of proof and the ZHB abused its discretion in granting the variance. Valley View Civic Ass'n.
Next, the Ivenzs argue that if the trial court believed that the record was deficient and that there was insufficient evidence or no evidence to establish unnecessary hardship, then the court should have either taken additional evidence or remanded the matter to the ZHB to do the same, citing Sparacino v. Zoning Board of Adjustment, 728 A.2d 445 (Pa. Cmwlth. 1999). The Ivenzs assert that Section 754 of the Local Agency Law, 2 Pa. C.S. § 754, allows the court, in its discretion, "to determine the manner of implementing a deficient record before a local agency." Appellants' Brief at 13. Asserting that they appeared pro se before the ZHB and they "lacked the appropriate legal ammunition to succeed in [their] variance request[,]" they contend that the trial court's "remedy" in this instance should have been to take additional testimony or remand the matter to the ZHB. Id.
Both the Board of Supervisors and Objectors argue that because the issue of the deficient record was not raised before the trial court, it is waived on appeal. Pa. R.A.P. 302(a). Even if not waived, however, they contend that the Ivenzs' pro se status before the ZHB does not entitle them to protection and preferential treatment from the trial court, where they were represented by counsel, and that they did not avail themselves of the opportunity to request that the trial court supplement the record before the ZHB.
Sparacino, cited by the Ivenzs, involved a landowner who similarly appeared pro se before the zoning hearing board in support of his application for a variance and failed to create an adequate record to establish hardship. However, the landowner was represented by counsel before the trial court, who then petitioned the court to remand the matter to the zoning hearing board to take additional evidence. Upon remand and after a hearing, the landowner's application for a variance was granted and a neighbor appealed to the trial court, which quashed the neighbor's appeal on the ground that he lacked standing to appeal. On the neighbor's further appeal to this court, we reversed. In a footnote, while acknowledging that the propriety of the trial court's order remanding the matter to the zoning hearing board on the basis of an "incomplete record" was not before it, we stated that "the record before the local agency is full and complete, if 'there is a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal, and also, that the appellate court is given a sufficient record upon which to rule on questions presented.'" Id. at 447 n.4 (citations omitted). This court went on to state, however, that:
The trial court is, however, without authority under Section 754(a) of the [Local Agency] Law to remand the matter to the local agency to give the appellant another opportunity to prove what he or she should have proved in the first place; therefore, the record before the local agency is not considered incomplete based solely on the appellant's failure to present evidence available at the hearing.Id. Thus, while we agree that the Ivenzs have waived this issue, we also conclude that the trial court was without authority to remand the matter to the ZHB solely to allow the Ivenzs another opportunity to prove what they should have proved in the first place, and its failure to do so was not error.
Accordingly, for all of the foregoing reasons, we affirm the order of the trial court.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge Senior Judge Colins dissents. ORDER
AND NOW, this 10th day of July 2013, the order of the Court of Common Pleas of Northampton County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge