In re: Appeal of Merion Ridge, LLC ~ Appeal of: Merion Ridge, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of Merion Ridge, LLC :

from the Decision dated :

March 31, 2022, of the Zoning :

Hearing Board of West :

Conshohocken :

: No. 1567 C.D. 2023

Appeal of: Merion Ridge, LLC : Argued: November 7, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: December 9, 2024

Merion Ridge, LLC (Merion Ridge) appeals from an Order of the Court of

Common Pleas of Montgomery County (common pleas), which affirmed a decision

by the Zoning Hearing Board of West Conshohocken Borough (Board) denying

Merion Ridge’s requests for multiple variances involving steep slopes and cluster

development. On appeal, Merion Ridge argues it met its burden of establishing an

entitlement to the zoning relief and the Board made numerous errors of law and

findings of fact unsupported by the record when it denied that relief. Upon careful

review, we affirm.

I. BACKGROUND

A. The Property and Proposed Plan

Merion Ridge owns a 5.5-acre vacant parcel of land along Valley Road,

straddling West Conshohocken Borough (Borough) and Lower Merion Township

(Township) in Montgomery County. (Board’s Remand Decision, Findings of Fact

(Remand FOF) ¶¶ 1, 3-4.)1 At issue in this appeal is the 4.75-acre portion of property

located within the Borough (Property), on which Merion Ridge proposed to develop

four single-family dwellings in a cluster configuration, which would be rented.2

(Board’s Remand Decision at 1; Remand FOF ¶ 8.) A significant amount of the

Property has “moderate steep slopes” of 15 to 25% and “severe steep slopes” of 25%

or greater, but some is not impacted by steep slopes.3 (Id. ¶¶ 5, 14; see also Ex. A-

10, Reproduced Record (R.R.) at 72a (depicting the Property’s slopes).) It is also

heavily wooded. (Id. ¶ 11.)

The Property is in the R-1 Residential District (R-1 District), which permits

one single-family dwelling per 10,000 square feet. (Remand FOF ¶ 3; BOROUGH OF

W. CONSHOHOCKEN, MONTGOMERY CNTY., PA., ZONING ORDINANCE (1976)

(Zoning Ordinance), as amended, § 113-36.A.) The Zoning Ordinance also permits

a single-family detached cluster development as a conditional use in the R-1 District.

(Zoning Ordinance § 113-183.) Such cluster developments require a minimum tract

size of 15 contiguous acres, adequate road access, and public water and sewer, and

should comply with the legislative intent of the Single-Family Detached Cluster

1

By order dated December 21, 2022, common pleas remanded the matter for the Board to

issue additional findings of fact and conclusions of law. Remand Findings of Fact refer to those

issued in accordance with that order.

2

Merion Ridge’s application originally proposed a cluster of five single-family detached

dwellings. (Reproduced Record (R.R.) at 4a.) That number was later reduced to four. (Id. at 57a.)

The four-unit clustered plan was further revised to the most recent version, a copy of which is

included in the record as part of Exhibit A-18, which can be found in the Reproduced Record at

89a.

3

Although the Zoning Ordinance does not use the terms “moderate” or “severe” to define

the categories of steep slopes, it does differentiate between slopes of 15% but less than 25% and

slopes of more than 25%. (Zoning Ordinance § 113-71.B.1.)

2

Overlay District4 and further the general welfare and public interest of the Borough.

(Id.) In addition, the maximum density per gross acre is four units. (Id. § 113-

185.A.1.)

However, the Zoning Ordinance prohibits, relevant here, any structures,

roads, driveways, parking areas, construction, or other development on steep slopes

of 25% or more. (Id. § 113-75.B.) The Zoning Ordinance further provides:

No building lot shall be created unless it contains sufficient buildable

area with slopes less than 25%. If it is infeasible to provide this

buildable area in accordance with the setbacks required by the

underlying district, the lot area shall be increased as necessary to

provide a buildable area equal to at least 1/2 the building envelope

provided by the minimum lot dimensional standards of the underlying

district.

(Id. § 113-78.C.)

Thus, to develop the Property as planned, Merion Ridge filed an application,

requesting the following four variances:

1. A variance from Section 113.75.B of the Zoning Ordinance, so

as to permit structures, roads, driveways, parking areas, construction,

or other development on steep slopes of 25% or more.

4

Section 113-182 of the Zoning Ordinance, entitled “Declaration of legislative intent,”

identifies the following intent:

A. To provide performance standards and density controls to ensure that single-

family detached cluster developments will be compatible with the character and

density of existing adjacent land uses as well as planned uses and densities

shown in the Borough’s Comprehensive Plan.

B. To preserve sensitive natural features such as floodplains, woodlands and steep

slopes.

C. To provide greater design flexibility and a more efficient development pattern

through shorter roads and utility lines.

(Zoning Ordinance § 113-182.)

3

2. A variance from Section 113.78.C of the Zoning Ordinance, so

as to create four (4) building lots without sufficient buildable area of

steep slopes less than 25%.

3. A variance from Section 113.183.A of the Zoning Ordinance, so

as to permit a cluster development on a tract measure less than fifteen

(15) acres.

4. A variance from Section 113.183.C of the Zoning Ordinance, so

as to permit a cluster development on a tract without connection to

public sewer.

(Board’s Remand Decision at 1-2; see also R.R. at 57a-58a.)

B. Hearing before the Board

A hearing on Merion Ridge’s application was scheduled for March 22, 2022,

at which Merion Ridge, the Borough, and Virginia Lowe, a Township resident

(Intervenor),5 appeared with counsel. Jeremy Wood, Merion Ridge’s principal

(Principal), Jonathan Ceci, a landscape architect (Landscape Architect), and Robert

Lambert, a civil engineer (Merion Ridge’s Engineer), testified on behalf of Merion

Ridge, and Khaled Hassan, a civil engineer (Borough’s Engineer), testified on behalf

of the Borough.

Merion Ridge’s Principal testified as follows. Merion Ridge has owned the

Property for 14 years when he purchased it and the property in the Township for

$375,000. (R.R. at 105a, 112a.) It was part of a larger tract on which a larger, higher

density development was planned in 1948, but after a taking for construction of the

intersection of the Blue Route and Schuylkill Expressway by the Pennsylvania

Department of Transportation (PennDOT), the Property is now smaller and

irregularly shaped. (Id. at 106a-08a.) On cross-examination, Principal testified he

5

Intervenor indicated her property is directly across the street from the Property. (R.R. at

210a.)

4

did not foresee the steep slopes of the Property as “a major problem” when he

purchased it. (Id. at 111a.) When pressed about whether constructing more houses

would yield more profit, Principal replied he had “a number of motivations. Money

[wa]s one of them. Yes.” (Id. at 119a.)

Landscape Architect testified as an expert in landscape architecture as

follows. Access to the Property is through the Township, and “a good amount” of

the Property is woodland, “which is one of the motivations for preserving through

the clusters.” (Id. at 121a.) There is also a stream “down the middle” of the Property.

(Id. at 123a.) Landscape Architect prepared a topographic map of the Property,

illustrating the different slopes.6 (Id.) These features, Landscape Architect opined,

created a hardship to developing the Property. (Id.) Landscape Architect worked

with an engineer to develop different plans for the Property, from traditional to

clustered development, which he described. (Id. at 123a-28a.) Landscape Architect

also described how clustered plans limited the amount of disturbance to the steep

slopes compared to traditional plans and also preserved the woodlands. (Id. at 124a-

25a, 129a.) Based on feedback from Borough officials, Merion Ridge developed the

present plan comprised of four single-family dwellings in a cluster configuration.

(Id. at 128a.)

Landscape Architect explained that, in his professional opinion, a variance

from the 15-acre minimum lot size for a cluster development was appropriate

“[b]ecause we think that it’s the best means of developing the [P]roperty to the

density that seems reasonable given its size, and yet without impacting the steep

slopes . . . or minimizing the impact of steep slopes.” (Id. at 130a-31a.) Landscape

Architect opined the Property’s other physical conditions were also compatible with

6

The topographic map is Exhibit A-10 and may be found in the Reproduced Record at 72a.

5

a cluster development. (Id. at 131a.) Moreover, it promoted the purpose of cluster

developments per the Zoning Ordinance by protecting the Property’s natural

features, which was “one of the most important motivations for it.” (Id.)

Landscape Architect further opined that it was impossible to develop the

Property in compliance with the Zoning Ordinance without a variance from the steep

slopes provision. (Id. at 132a.) However, the proposed plan would minimize

disturbance to the steep slopes by “mov[ing] the units as close together as possible,”

“shift[ing] the anchor for th[e] cul-de-sac” to the edge of a cluster of moderate

slopes, and “limit[ing] any kind of crossing of the stream.” (Id. at 133a.) Although

there were flatter portions of the Property, they were located near the narrow

Township tract or the stream, which Merion Ridge sought to protect. (Id. at 134a.)

In addition, according to Landscape Architect, development on these areas would

still require variance relief, would disturb a larger portion of the steep slopes due to

the need to provide access drives, and would increase the amount of impervious

surface due to more road infrastructure, which would, in turn, cause erosion and

sedimentation.7 (Id. at 134a-36a.) Landscape Architect estimated this type of plan

would disturb 3.6 acres overall, 2 of which would be to slopes areas of 25% or more.

(Id. at 135a.)

On cross-examination, Landscape Architect admitted one unit could be

constructed on the Property, but denied one unit would disturb less of the steep

slopes than four units. (Id. at 137a-39a.) Landscape Architect further testified one

unit would be different than the four “very modestly scaled units,” resulting in “a

different kind of market.” (Id. at 140a.) When asked why Merion Ridge could not

“build just the two houses . . . and then have [] less disturbance of the steep slope,”

7

The plan depicting this development is Exhibit A-14, which can be found in the

Reproduced Record at 76a.

6

Landscape Architect responded, “[o]bviously, financial.” (Id. at 141a.) Landscape

Architect later elaborated that in addition to financial reasons, another reason is two

units would not create a “hamlet of homes,” “the same sense of community,” or the

“esthetic and [] relational aspect,” which was Principal’s motivation. (Id. at 142a.)

Regardless of the number of units constructed, Landscape Architect reiterated that a

variance would still be needed. (Id. at 143a.) Because a two-unit plan was not

studied, Landscape Architect could not opine whether it would require the same

amount of disturbance to the steep slopes. (Id.)

Merion Ridge’s Engineer, who was offered as an expert in civil engineering

and land development, testified as follows. In his professional opinion, a clustered

development was appropriate for this Property, despite it not meeting the minimum

lot size requirement, because of its slopes and configuration. (Id. at 153a.) Merion

Ridge’s Engineer also testified that because there was more than one acre of land

per unit, there was ample space for on-site septic in lieu of public sewer. (Id.) He

explained that public sewer is usually required for larger cluster developments

because they are denser, having approximately four units per acre. (Id.) Properly

designed and permitted on-lot systems would not be detrimental to the neighboring

properties or public health, safety, and welfare, in his opinion. (Id. at 154a.)

Merion Ridge’s Engineer also agreed with Landscape Architect that it is

impossible to use the Property for a residential use without variance relief from the

steep slope provisions. (Id. at 155a.) He opined that, “with proper engineering and

geotechnical studies[, the Property] can be developed in a safe manner,” explaining

there are many areas in the Borough that have been safely developed on steep slopes.

(Id.) According to Merion Ridge’s Engineer, the configuration, steep slopes, and

stream are unique features of the Property that create a hardship. (Id. at 156a.)

7

In his view, the proposed plan would not alter the essential character of the

neighborhood. (Id.) He explained that, but for the Property’s physical

characteristics, 22 to 23 single-family detached dwellings could otherwise be

constructed on the Property, depending on the configuration (traditional versus

clustered); therefore, the proposed density of 4 homes is 5 times less. (Id. at 157a-

58a.) Merion Ridge’s Engineer also described an adjoining 23-acre, 92-unit

development called Merion Hill, which “was developed in a safe and efficient

manner.” (Id. at 158a-60a, 186a.) Merion Ridge’s Engineer did not know the

amount of steep slopes on the Merion Hill development or what the Zoning

Ordinance required at the time it was constructed in the 1990s. (Id. at 182a-83a.)

Merion Ridge’s Engineer further testified that the amount of slope disturbance

is not directly related to the number of planned units, explaining infrastructure, such

as access, plays a role. (Id. at 161a.) He also opined that if fewer homes were

constructed, their respective size would increase in order to be consistent with

similar properties in the area. (Id. at 161a, 186a.) As an example, Merion Ridge’s

Engineer stated that if it was one unit, that unit would be a larger home with

amenities, such as a pool and parking area. (Id. at 162a.) He also explained how

disturbance of the steep slopes differed between the various plans Merion Ridge

considered, with the one-unit and four-unit plans being largely equivalent in terms

of disturbance. (Id. at 162a-64a.) On cross-examination, Merion Ridge’s Engineer

explained that if three of the four units were eliminated, leaving just one unit to be

constructed on the moderate slope area, the amount of disturbance to the steep slopes

would not reduce substantially, just by the footprint of the two units that would have

been located in the steep slopes.8 (Id. at 166a-67a.)

8

The third eliminated unit would have been on moderate slopes.

8

Merion Ridge’s Engineer also described the retaining walls that would be

constructed ranging from 5 to 10 feet tall. (Id. at 167a-68a.) He explained that

retaining walls can reduce the amount of disturbance needed and reduce erosion.

(Id. at 186a-87a.) He acknowledged the Property had not been tested for private

sewer systems and that the adjoining development, Merion Hill, has public sewer.

(Id. at 168a.)

Borough’s Engineer, who was qualified as an expert in civil engineering, land

development, and planning and zoning, testified as follows. In Borough Engineer’s

professional opinion, the minimum relief necessary to provide reasonable use of the

Property would be one unit. (Id. at 188a.) Borough Engineer considered steep slopes

to be a “very touchy subject.” (Id.) While “nothing is impossible,” he explained

“[t]here is a cost to everything,” and with steep slopes exceeding 25%, there is a risk

of “lack of stabilization and vegetation, which in turn turns into severe runoff,

erosion[,] and then in some cases as some of us may know, it also is an issue of a

landslide.” (Id. at 189a.) He further testified about the safety concerns with retaining

walls and concerns with adequate access for emergency personnel. (Id. at 190a-

91a.) Borough’s Engineer testified public sewer could be introduced to the Property.

(Id. at 189a.) He did not think it was “a good idea” to compare properties to one

another because of their unique characteristics and explained some of the problems

that arose during the development of other properties on steep slopes. (Id. at 191a-

92a.)

On cross-examination, Borough’s Engineer acknowledged that the concerns

he expressed about developing on steep slopes can be addressed during the land

development stage. (Id. at 194a-95a.) He further acknowledged during his 20-plus

9

years of experience as the engineer for the Borough that relief from the steep slope

provisions has been both granted and denied in other projects. (Id. at 195a.)

During public comment, one Borough resident and three Township residents,

including Intervenor, testified they opposed the variances, without elaboration. (Id.

at 197a, 201a-02a.) Another Township resident who opposes the project and whose

property abuts the access road to the Property expressed concern over the damage

allegedly caused to their property by erosion. (Id. at 198a-99a.) Another community

member stated a lot of the Borough is constructed on steep slopes and suggested a

geotechnical engineer be consulted. (Id. at 200a-01a.) That person also stated if

homes were built there, it would generate tax revenue for the Borough. (Id. at 201a.)

C. Board’s Decisions

Following the hearing and public discussion, the Board unanimously voted to

deny the variance requests. The Board subsequently issued a written decision

containing 13 findings of fact and 4 conclusions of law (Board’s Original Decision).9

Merion Ridge appealed to common pleas, which remanded the matter for the Board

to provide more detailed findings of fact and conclusions of law. (See 12/21/22

Common Pleas’ Order, R.R. at 339a.)10

9

The findings of fact in the Board’s Original Decision outline the Property’s location, the

variances requested, and the procedural history of the zoning application. The conclusions of law

in the Board’s Original Decision merely state the criteria in the Pennsylvania Municipalities

Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202, are

not met, the decision is supported by substantial evidence, the Board carefully reviewed the

evidence and did not abuse its discretion, and the decision is consistent with the MPC and case

law interpreting same.

10

In its order, common pleas explained the Board’s Original Decision did not identify the

evidentiary support for its findings, putting common pleas “in a precarious position, in that it would

have to base its decision on assumptions and educated[ ]guesses as to what was going on in the

mind of the Board.” (12/21/22 Common Pleas’ Order at 1 n.1, R.R. at 339a.)

10

Upon remand, the Board made the following additional findings of fact.

Merion Ridge’s Principal acknowledged the Property could be developed in a

number of ways. (Remand FOF ¶ 7.) Merion Ridge believed the cluster

development was “the best means of developing the [P]roperty to the density that

seems reasonable.” (Id. ¶ 13.) The Board found Exhibit A-1411 showed the

“Property would allow for houses to be primarily developed in areas out of the 25%

or more steep slopes, with traditional lotting, but there would still be significant

disturbance of the severe steep slope areas.” (Id. ¶ 15.) Given the Property has areas

with less steep slopes, the Board found Merion Ridge could construct one house of

the same size as one of the proposed cluster houses, which one of Merion Ridge’s

witnesses acknowledged would result in less disturbance to the steep slopes. (Id.

¶ 16.) The Board further found Merion Ridge “admitted that financial

considerations entered into developing the four-house project versus a one-house

project.” (Id. ¶ 17.)

The Board concluded Merion Ridge did not meet its burden of establishing

the first criterion for variance relief under Section 910.2 of the Pennsylvania

Muncipalities Planning Code (MPC),12 as there were no unique physical

circumstances or conditions peculiar to the Property. (Id. ¶ 20(A).)13 The Board

rejected Merion Ridge’s argument that because it would still need variance relief

from the steep slope requirement even if only one house was constructed, Merion

11

A copy of this exhibit is available in the Reproduced Record at 76a.

12

Section 910.2 was added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53

P.S. § 10910.2.

13

The Board made virtually identical findings of fact and conclusions of law as to most of

the criteria. Some are more appropriately considered a factual finding, whereas others are more

legal conclusions based on those facts. For simplicity, we cite to only the findings of fact in the

Remand Decision but will note the corresponding conclusion of law to each criterion. The first

criterion is also addressed in Conclusion of Law (COL) 6.

11

Ridge was entitled to the specific relief it sought, stating, “[t]aking that argument to

its logical conclusion, [Merion Ridge]’s position amounts to a conclusion that just

because [Merion Ridge] would need the minimum relief to build one [] house, then

it should be entitled to do whatever it wanted on the Property[, which] is not the

law.” (Id. ¶ 20(B)-(C).) The Board also rejected Merion Ridge’s contention that the

steep slopes created the unique physical condition resulting in hardship, stating “this

argument ignores the provision of the [MPC] where a hardship cannot be based on

what the ordinance imposes as a restriction.” (Id. ¶ 20(D); see also id. ¶ 20(H).)

Moreover, even if the steep slopes could provide the basis for a finding of hardship,

the Board reasoned that Merion Ridge’s Engineer acknowledged that “one can build

in steep slope areas from an engineering standpoint, with retaining walls.” (Id.

¶ 20(G).) The Board also concluded that the unusual shape of the Property did not

create a hardship. (Id. ¶ 20(F).)

Concerning the request for a variance from the cluster development

provisions, the Board found the Property was just one-third of the size required for

cluster developments and the Property being smaller than what is required is not a

physical condition causing the hardship. (Id. ¶ 20(J)-(K).) Similar to the steep

slopes variance request, the Board concluded it was the requirements of the Zoning

Ordinance that was creating any hardship. (Id. ¶ 20(K).) The Board further found

that “because [Merion Ridge] presented evidence that traditional lot layouts were

possible . . . for the same number of houses (or more),” Merion Ridge was seeking

to save on infrastructure costs to maximize profit, not respect the steep slopes, or it

would have only proposed one house. (Id. ¶ 20(L)-(M).)

The Board also determined Merion Ridge did not satisfy the second variance

criterion by showing the proposed plan was a reasonable use of the Property because

12

“[i]t [wa]s clear from the record that the Property c[ould] be developed in stricter

conformity with the provisions of the Zoning Ordinance.” (Id. ¶ 21(A).)14

Specifically, the Board noted Merion Ridge conceded one house could be built on

the lot, which the Board concluded was a reasonable use of the Property. (Id.

¶ 21(B)-(C).) It specifically did not credit Merion Ridge’s argument that

constructing one house would result in more disturbance of the steep slopes than

four houses, crediting Borough’s Engineer over Merion Ridge’s expert witnesses.

(Id. ¶ 21(D)-(E).) The Board further explained that constructing one house may still

require zoning relief from the steep slope requirements, but “the variances to the

extent requested are clearly not required to enable the reasonable use of the

Property.” (Id. ¶ 21(I).) To the extent Merion Ridge contended that because of the

large size of the Property, building just one house could be justified only by building

a very large house, the Board concluded “this assertion belies common knowledge

that there are houses on five-acre lots all over Montgomery County.” (Id. ¶ 21(F).)

Instead, the Board found Merion Ridge’s “underlying motivation is the obviously

greater profit margin of a four[-]house development versus a one[-]house

development, and [Merion Ridge] presented absolutely no evidence that it was

financially infeasible to just build one [] house on the Property and still make a

profit.” (Id. ¶ 21(G).) The Board concluded this conclusion was bolstered by

Principal, who admitted money was a motivating factor in proposing four houses.

(Id. ¶ 21(H).)

The Board likewise determined the third criterion for a variance was not

satisfied, concluding any hardship that existed was self-created by Merion Ridge

seeking to “overdevelop” the Property by building more than one house, which

14

See also Board’s Remand Decision, COL ¶ 7 (addressing the second criterion).

13

would require less relief from the steep slope requirement, and “by proposing a

cluster development on a tract of land that simply does not qualify for such a

development.” (Id. ¶ 22(A)-(B).)15

The Board further determined that the variance would alter the essential

character of the neighborhood or zoning district, would substantially impair the

appropriate use or development of adjacent property, and would be detrimental to

public welfare, the fourth criterion for a variance. In particular, it found Borough’s

Engineer “presented credible and convincing expert testimony as to why protecting

severe steep slopes is important with respect to the use and development of adjacent

properties.” (Id. ¶ 23(A).)16 The Board found risks included “lack of stabilization,

severe runoff, erosion, and landslides,” and that retaining walls can similarly create

dangerous conditions. (Id. ¶ 23(B).)

The Board also concluded, in relation to the fifth criterion, that Merion Ridge

did not show the requested variance was the minimum required to afford Merion

Ridge relief and represented the least modification possible. (Id. ¶ 24(M).)17 Again,

the Board found construction of one house would be the minimum relief and least

modification needed. (Id. ¶ 24(B), (L).) The Board explained how Merion Ridge

repeatedly modified its plan, reducing the number of houses each time, thereby

leading the Board “to conclude that proposing more than one [] house on this

Property would not represent the minimum relief possible” and that “[b]ecoming

incrementally closer to the minimum relief is not the minimum relief.” (Id. ¶ 24(C)-

(D).) The Board was not persuaded by Merion Ridge’s argument that if it

15

See also Board’s Remand Decision, COL ¶ 8 (addressing the third criterion).

16

See also Board’s Remand Decision, COL ¶ 9 (addressing the fourth criterion).

17

See also Board’s Remand Decision, COL ¶ 10 (addressing the fifth criterion). The Board

only made conclusions as to paragraphs (A) through (E), although its findings included paragraphs

(A) through (J).

14

constructed only one house, it would have to be a mansion, complete with amenities,

accessory structures, and large parking, noting “there was no market analysis

presented.” (Id. ¶ 24(E).) The Board stated that “the entire parcel measures 5.5

acres, of which 3.75 acres have steep slopes of 25% or more, and [Merion Ridge]

proposes to disturb 26,653 [square feet] – a little more than [0].6 acre – more than

one half [] of an acre – over 16% of the severely steep sloped areas.” (Id. ¶ 24(F).)

Of the total acreage of the Property in the Borough, the Board found Merion Ridge

proposed disturbing approximately 18,400 square feet of the severely steep sloped

area if it built four houses and 22,300 square feet if it built just one. (Id. ¶ 24(G)-

(H).) Based on the credited testimony of the Borough’s Engineer, though, the Board

found less disturbance would occur if one house of a similar size to one of the four

houses proposed was constructed. (Id. ¶ 24(I).) The Board also found there was no

testimony that the soils on the Property could support an on-lot sewer system. (Id.

¶ 24(J).) However, there was testimony from Merion Ridge’s witnesses and the

Borough’s witness that public sewer would be or was already available. (Id.)

In addition to the variance criteria in the MPC, the Board examined the criteria

set forth in Section 113-120 of the Zoning Ordinance18 and concluded the proposed

plan (A) is inconsistent with the spirit, purpose, or intent of the Zoning Ordinance;

(B) will substantially injure or detract from use of the adjacent property; (C) will not

serve the Borough’s best interest; (D) may not unduly burden some public services,

but there was a lack of evidence about providing emergency services access to the

Property; (E) would not harmfully affect traffic; (F) does not comply with sound

standards of subdivision and land development practice; and (H) would not impact

18

Section 113-120 of the Zoning Ordinance sets forth 12 considerations, not including

subparts, that the Board is required to consider for variance and/or special exception relief.

15

parking demand. (Id. ¶ 25(A)-(F), (H).)19 The Board also found that there were no

conditions that could be imposed to provide relief. (Id. ¶ 25(G).) Thus, the Board

concluded Merion Ridge did not satisfy its burden. (Id. ¶ 25(I).)

D. Common Pleas’ Decision

Following the Board’s issuance of its Remand Decision, common pleas,

accepting briefs and oral argument but taking no additional evidence, affirmed the

Board’s denial of the variance requests.20 In doing so, it concluded the record

supported the Board’s findings that any hardship was self-created by Merion Ridge

and its proposed plan, which would “overdevelop” the Property with money as the

motivation. (Common Pleas’ Memorandum at 7.) Thus, common pleas determined

the Board did not err or abuse its discretion in concluding Merion Ridge did not meet

its burden of establishing an entitlement to variance relief from the steep slope

requirements. (Id.)

Common pleas similarly held the Board did not err or abuse its discretion in

denying the requests for variance relief related to the cluster development, stating

“the Board determined that (1) the [P]roperty was not suitable for the proposed use,

(2) the Zoning Ordinance does not contemplate such cluster developments on a five-

acre tract of land, and (3) the proposed use is inconsistent with the spirit, purpose,

and intent of the Zoning Ordinance,” and that the variances would substantially

injure the adjacent properties’ use, cause significant disturbances to the steep slopes

19

See also Board’s Remand Decision, COL ¶ 11 (addressing the criteria from the Zoning

Ordinance). The Board’s findings differed from its conclusions as to these criteria in that there

were no corresponding paragraphs (H) or (I) in the conclusions.

20

Merion Ridge filed a separate appeal from the Board’s Remand Decision, (R.R. at 367a-

431a), and subsequently filed an uncontested motion to consolidate the two appeals, (id. at 432a-

40a), which common pleas granted on May 8, 2023, (id. at 494a).

16

resulting in safety concerns, and would not be in the Borough’s best interest, all of

which were supported by substantial evidence. (Id. at 8.)

Merion Ridge then filed a timely Notice of Appeal to this Court.21 On appeal,

Merion Ridge raises six issues: (1) the Board did not properly consider the unique

physical circumstances of the Property; (2) the Board erred in determining that

construction of one house on a 4.7-acre parcel was a reasonable use; (3) the Board

wrongly determined the hardship was self-created; (4) certain findings of fact are

not supported by substantial evidence; (5) the Board erred in concluding the variance

request was not the minimum needed to afford relief; and (6) the Board erred in

determining Merion Ridge did not satisfy the criteria in the Zoning Ordinance.

II. DISCUSSION

A. General Legal Principles

Where common pleas does not take additional evidence, such as here, our

review of a land use appeal “is limited to determining whether the zoning hearing

board committed an error of law or abused its discretion.” EDF Renewable Energy

v. Foster Twp. Zoning Hearing Bd., 150 A.3d 538, 544 n.4 (Pa. Cmwlth. 2016). An

abuse of discretion occurs when a zoning hearing board’s findings of fact are not

supported by substantial evidence, which is defined as “relevant evidence that a

reasonable mind might accept as adequate to support a conclusion.” Id. The zoning

hearing board is the sole judge of witness credibility and evidentiary weight, and we

“may not substitute [our] interpretation of the evidence for that of the [zoning

21

Pursuant to Pennsylvania Rule of Appellate Procedure 1925, Pa.R.A.P. 1925, common

pleas directed Merion Ridge to file a statement of errors complained of on appeal, which Merion

Ridge did, and issued an opinion directing the Court to common pleas’ prior Memorandum for the

rationale behind its decision. (See R.R. at 558a-73a.)

17

hearing board].” Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 13

(Pa. Cmwlth. 2015). Moreover, we must view the evidence presented in the light

most favorable to the party that prevailed before the fact finder, including by giving

that party the benefit of all reasonable inferences arising therefrom. Id.

Section 910.2(a) of the MPC governs a zoning hearing board’s authority to

grant a variance and provides:

(a) The board shall hear requests for variances where it is alleged that

the provisions of the zoning ordinance inflict unnecessary hardship

upon the applicant. The board may by rule prescribe the form of

application and may require preliminary application to the zoning

officer. The board may grant a variance, provided that all of the

following findings are made where relevant in a given case:

(1) That there are unique physical circumstances or conditions,

including irregularity, narrowness, or shallowness of lot size or

shape, or exceptional topographical or other physical conditions

peculiar to the particular property and that the unnecessary hardship

is due to such conditions and not the circumstances or conditions

generally created by the provisions of the zoning ordinance in the

neighborhood or district in which the property is located.

(2) That because of such physical circumstances or conditions, 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.

(3) That such unnecessary hardship has not been created by the

appellant.

(4) That the variance, if authorized, will not alter the essential

character of the neighborhood or district in which the property is

located, nor substantially or permanently impair the appropriate use

or development of adjacent property, nor be detrimental to the

public welfare.

18

(5) That the variance, if authorized, will represent the minimum

variance that will afford relief and will represent the least

modification possible of the regulation in issue.

53 P.S. § 10910.2(a).

At issue in this matter are denials of variances from certain dimensional

requirements and steep slope requirements in the Zoning Ordinance. A dimensional

variance seeks “a reasonable adjustment of the zoning regulations in order to utilize

the property in a manner consistent with the applicable regulations.” Hertzberg v.

Zoning Bd. of Adjustment of the City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998).

Requests for variances from steep slope regulations are often considered a “hybrid”

request falling into a “grey area” because they fit neither as dimensional variances

nor use variances.22 Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp.,

25 A.3d 1260, 1267 (Pa. Cmwlth. 2011) (quoting Zappala Grp., Inc. v. Zoning

Hearing Bd. of the Town of McCandless, 810 A.2d 708, 711 (Pa. Cmwlth. 2002)).

Both dimensional variances and steep slope/hybrid variances are evaluated

using the relaxed standard enunciated by our Supreme Court in Hertzberg. Pohlig

Builders, 25 A.3d at 1269. In Hertzberg, the Supreme Court recognized the

differences between dimensional and use variances, explaining “the grant of a

dimensional variance is of lesser moment than the grant of a use variance,” and,

therefore, “the quantum of proof required to establish unnecessary hardship is indeed

lesser when a dimensional variance, as opposed to a use variance, is sought.” 721

A.2d at 47-48. The Supreme Court set forth various factors to consider in

determining whether an unnecessary hardship has been established, such as “the

economic detriment to the applicant if the variance was denied, the financial

22

“[A] use variance involves a proposal ‘to use property in a manner that is wholly outside

zoning regulations.’” Soland v. Zoning Hearing Bd. of E. Bradford Twp., 311 A.3d 1208, 1213

(Pa. Cmwlth. 2024) (quoting Hertzberg, 721 A.2d at 47).

19

hardship created by any work necessary to bring the building into strict compliance

with the zoning requirements[,] and the characteristics of the surrounding

neighborhood.” Id. at 48, 50. As stated, we approved of the use of this relaxed

standard in the hybrid scenario seeking variance relief from steep slope provisions

of zoning ordinances. See Pohlig Builders, 25 A.3d at 1269.

Notwithstanding the relaxed Hertzberg standard, “[a]n applicant must still

present evidence as to each of the conditions listed in the zoning ordinance, including

unnecessary hardship.” Tidd, 118 A.3d at 8. Furthermore, the applicant’s burden is

a “heavy one, and the reasons for granting the variance must be substantial, serious[,]

and compelling.” Pequea Township v. Zoning Hearing Bd. of Pequea Twp., 180

A.3d 500, 507 (Pa. Cmwlth. 2018) (internal quotation marks and citation omitted).

Moreover, “[w]here no hardship is shown, or where the asserted hardship amounts

merely to a landowner’s desire to increase profitability or maximize development

potential, the unnecessary hardship criterion required to obtain a variance is not

satisfied, even under the relaxed standard.” Lawrenceville Stakeholders v. City of

Pittsburgh Zoning Bd. of Adjustment, 247 A.3d 465, 474 (Pa. Cmwlth. 2021).

With these principles in mind, we turn to the issues raised by Merion Ridge.

B. Whether the unique physical circumstances and conditions of the

Property create an unnecessary hardship

1. Parties’ Arguments

Merion Ridge argues the Board erred in refusing to consider the Property’s

unique physical characteristics, including its steep slopes, when determining

whether an unnecessary hardship existed. Notwithstanding that the Zoning

Ordinance prohibits steep slope disturbance, Merion Ridge points out that Section

910.2(a)(1) of the MPC specifically allows for consideration of “topographical or

20

other physical conditions peculiar to the particular property.” 53 P.S.

§ 10910.2(a)(1). Merion Ridge asserts it is undisputed that the Property has steep

slopes, which are “uniquely problematic” because of “their quantity and location,”

making access to flatter portions of the Property “impossible without first traversing

(and thereby disturbing) these steep slopes.” (Merion Ridge’s Brief (Br.) at 24.)

Merion Ridge argues an applicant would never be able to obtain variance relief from

an ordinance provision prohibiting disturbances to physical conditions under the

Board’s interpretation. It points out the Court has recognized steep slope variances

in the past, and the Borough has even granted such relief. It maintains Merion

Ridge’s Engineer did not testify that because retaining walls could be used, no

hardship exists; Merion Ridge contends, instead, that the point of the testimony was

to establish steep slopes could be safely developed.

In addition to ignoring evidence of the sleep slopes, Merion Ridge contends

the Board capriciously disregarded evidence of other physical conditions of the

Property, which demonstrate an unnecessary hardship. First, Merion Ridge claims

the Board erroneously concluded the irregular shape of the lot did not contribute to

any unnecessary hardship. Merion Ridge explained that the condemnation by

PennDOT caused the irregular shape and resulted in only one access point through

the sloped area. Second, Merion Ridge argues the extensive woodlands and stream

bisecting the Property contribute to the unnecessary hardship.

As for the variance related to the cluster development, Merion Ridge argues

the record is devoid of evidence to support the Board’s finding that the purpose of

requesting this variance was to save on infrastructure costs and maximize profit.

Rather, it contends the record shows its purpose was to reduce the disturbance to the

steep slopes, woodlands, and stream.

21

The Board argues23 it properly found there were no unique physical

circumstances or conditions peculiar to the Property that created an unnecessary

hardship. The Board asserts that even though Merion Ridge would still need zoning

relief to build one house, that does not give Merion Ridge carte blanche to develop

the Property however it wants. In response to Merion Ridge’s argument that the

steep slopes justify variance relief, the Board asserts “[t]his argument ignores the

provision of the [MPC] that a hardship cannot be based on what the ordinance

imposes as a restriction.” (Board’s Br. at 15-16 (citing Section 910.2 of the MPC).)

Stated another way, “pointing to the steep slopes as the reason for steep slope relief

is exactly what the [MPC] proscribes.” (Id. at 16.) Furthermore, the Board points

out that Merion Ridge’s Engineer testified that one can build in areas of steep slope

with the use of retaining walls, which undercuts the unnecessary hardship

requirement.

The Board also does not believe the unusual shape of the Property creates a

hardship, pointing out that Merion Ridge can “fit what it wants to develop on the

lot” notwithstanding the shape. (Id.) In the Board’s view, the variance relief

requested is unrelated to the shape of the Property.

According to the Board, the case relied upon by Merion Ridge, Pohlig

Builders, is distinguishable in that there was less disturbance of the steep slopes and

the steep slopes were ultimately being eliminated by the development in that case.

As for the request for relief from the cluster development provisions, the

Board argues that, once again, it is the Zoning Ordinance, not the Property, causing

the hardship because the Zoning Ordinance requires 15 acres for such developments,

which is 3 times the size of the Property. In short, Merion Ridge “wishes to develop

23

The Borough and Intervenor Virginia Lowe join in the Board’s Brief.

22

in a cluster arrangement on a lot that simply does not qualify for cluster

development,” and do so without regard for other objective criteria, such as the

requirement of public sewer. (Board’s Br. at 19.)

The Board further asserts that because Merion Ridge “presented evidence that

traditional lot layouts were possible on this Property for the same number of houses

(or more), the Board reasonably determined that [Merion Ridge] is proposing a

cluster arrangement as a result of the savings on infrastructure costs, and in order to

maximize profit, rather than attempting to respect the steep slopes.” (Id.) While

Merion Ridge argues there is no evidence of record to this effect, the Board argues

the “conclusion is justified by the lack of evidence from [Merion Ridge], wh[ich]

has the burden of proof.” (Id.)

In its reply brief, Merion Ridge disputes that the basis for its variance request

related to cluster developments was because of the size of the Property. Rather, it

maintains Landscape Architect testified that the purpose of clustering was to

minimize steep slope disturbance. By clustering the houses closer to the access

point, Merion Ridge contends a shorter drive would be necessary, thereby resulting

in less disturbance to the steep slopes. Further, it argues that its proposed plan to

cluster the houses is consistent with the purpose behind the Zoning Ordinance’s

clustering provision – “[t]o preserve sensitive natural features such as . . . steep

slopes” and “[t]o provide greater design flexibility and a more efficient development

pattern through shorter roads . . . .” (Merion Ridge’s Reply Br. at 5 (quoting Section

113-182 of the Zoning Ordinance).)

2. Analysis

Section 910.2(a)(1) of the MPC sets forth the first criterion for variance relief:

23

That there are unique physical circumstances or conditions, including

irregularity, narrowness, or shallowness of lot size or shape, or

exceptional topographical or other physical conditions peculiar to the

particular property and that the unnecessary hardship is due to such

conditions and not the circumstances or conditions generally created by

the provisions of the zoning ordinance in the neighborhood or district

in which the property is located.

53 P.S. § 10910.2(a)(1).

Here, there are numerous physical circumstances or conditions that Merion

Ridge maintains are causing a hardship: the steep slopes themselves, the irregular

lot shape, the stream bisecting the Property, and the extensive woodlands. The

Borough responds that the steep slopes cannot form the basis of Merion Ridge’s

hardship argument because a hardship cannot be based on what the Zoning

Ordinance imposes, and there is no evidence the other physical conditions are

causing the alleged hardship.

The express terms of the MPC provide that we cannot consider circumstances

or conditions caused by the applicable zoning ordinance. 53 P.S. § 10910.2(a)(1).

That said, we routinely consider small lot sizes as a condition creating a hardship

when we evaluate requests for variances from minimum lot size requirements. We

did so just recently in Riccio v. Newtown Township Zoning Hearing Board, 308 A.3d

928 (Pa. Cmwlth. 2024). There, the ordinance called for a minimum lot size of

12,000 square feet, but the subject lot was only 8,865 square feet, so the property

owner sought a dimensional variance to construct a single-family dwelling, which

was granted. A neighboring property owner appealed, and the common pleas court

affirmed. Upon further appeal, we affirmed, concluding the property owner satisfied

its burden for a dimensional variance. In doing so, we held the lot size was a physical

circumstance that could be considered. Specifically, we stated:

24

[T]he lot size of the [p]roperty is less than that required by the

[o]rdinance, making compliance with the [o]rdinance impossible. The

lot therefore constitutes a non-conforming lot. An undersized lot

constitutes the physical circumstances which may entitle one to a

variance provided the other variance criteria are met. N. Pugliese, Inc.

v. Palmer T[wp.] Zoning Hearing B[d.], . . . 592 A.2d 118, 121 ([Pa.

Cmwlth.] 1991); Jacquelin v. Zoning Hearing B[d.] of Hatboro

Borough, . . . 558 A.2d 189 ([Pa. Cmwlth.] 1989). As we noted in West

Goshen [Township v. Crater], “[w]here a lot is too small to conform

with the minimum lot area requirements, and cannot be made to

conform by merging lots or by re-subdividing a larger tract,

enforcement of the ordinance would sterilize the land, creating the

necessary hardship which will justify the granting of a variance.” 538

A.2d [952,] 955 [(Pa. Cmwlth. 1988)].

Riccio, 308 A.3d at 942-43.

However, in a case involving a variance request from steep slope

requirements, a zoning hearing board denied the requested relief, in part, on the same

basis as Board did here, stating “[t]he physical conditions of [the a]pplicant’s

[p]roperty are not the reason for which the variance is sought; rather the physical

conditions dictate application of [the steep slope zoning requirements] and it is from

the application of those zoning requirements that [the a]pplicants seek their

variance.” Boyer v. Zoning Hearing Bd. of Franklin Twp., 987 A.2d 219, 221 (Pa.

Cmwlth. 2010) (quoting the zoning hearing board’s conclusion of law). There, the

applicants sought to build a single-family, detached dwelling on an 8½-acre plateau

on a 42-acre mountaintop tract. The use was permitted in the zoning district, but the

property was also located within a steep slope conservation overlay district, which

prohibited substantial improvements on properties containing slopes exceeding

15%. After the common pleas court affirmed the denial, the applicants appealed to

our Court, arguing, that the overlay requirements should not apply to the plateau

portion of the property, that it was impossible to comply with the ordinance’s

25

requirements, that the hardship was not self-created, and that they were unaware the

property would be subject to the overlay requirements. Id. at 222. We affirmed the

variance’s denial, reasoning:

Having considered [the a]pplicants’ argument, we note that it is striking

for what it does not purport; [the a]pplicants do not argue that the

unnecessary hardship has not been caused by “the circumstances or

conditions generally created by the provisions of the zoning ordinance

in the neighborhood or district in which the property is located.”

Section 910.2(a)(1) of the MPC, 53 P.S. § 10910.2(a)(1). Presumably,

[the a]pplicants fail to make this argument because they cannot

legitimately do so where even they admit that they are unable to use the

tract they own to erect a house because of the [s]teep [s]lope [o]verlay

[r]egulation. . . . In other words, if it were not for the fact that the

[p]roperty was within the [steep slope overlay district], there is no

question that [the a]pplicants could erect their single-family residence

on an eight-and-one-half-acre plateau in the [o]pen [s]pace [z]one.

Given [the a]pplicants’ failure to show that their unnecessary hardship

arises from the unique physical circumstances of their property as

opposed to the circumstances generally created by the [o]rdinance, an

undoubtedly relevant criterion, we cannot agree with [the a]pplicants’

assertion that the [zoning hearing board] abused its discretion or

committed legal error in denying their variance request.

Boyer, 987 A.2d at 223 (internal quotation marks and citation omitted; emphasis in

original). We are, therefore, bound by Boyer, which resolves this issue against

Merion Ridge.

Merion Ridge, however, suggests steep slopes are a proper consideration

based on prior decisions of this Court, which have granted steep slope relief, pointing

to Pohlig Builders as an example. However, there, the unique physical

characteristics of the property were a waterway dividing the property and a narrow

strip of land connecting the two sides, which could not support a road that would

comply with the applicable zoning ordinance. 25 A.3d at 1268-69, 1272. It does

not appear that the steep slopes of the property were considered as one of the unique

26

physical characteristics of the property that caused a hardship. Merion Ridge also

cites Solebury Township v. Solebury Township Zoning Hearing Board, 914 A.2d

972, 976 (Pa. Cmwlth. 2007). However, there the Court never reached the issue of

whether there were unique physical circumstances or conditions on the property that

created a hardship because the township had not preserved that issue for appellate

review.

Merion Ridge also argues that the Borough has granted steep slope relief in

the past. Borough’s Engineer testified this is true, (R.R. at 195a), but that does not

necessarily mean that the steep slopes of those properties were considered as part of

the unique physical characteristics or conditions giving rise to the hardship. There

is limited evidence of record as to the circumstances involving those properties.

Finally, we are not persuaded by Merion Ridge’s argument that, under the

Board’s interpretation, an applicant would never be able to obtain variance relief

from an ordinance provision prohibiting disturbances to physical conditions. As the

applicant did in Pohlig Builders, an applicant could show that other unique physical

conditions or circumstances of the property result in hardship.

In sum, although the courts have considered small lot sizes as a unique

physical characteristic when it comes to variances from minimum lot sizes, this

Court has expressly declined to consider steep slopes as a unique physical

characteristic when the relief sought relates to those steep slopes. As this is

consistent with the plain language of the MPC and this Court’s precedent, we discern

no error or abuse of discretion in the Board’s refusal to consider the steep slopes of

the Property as part of any hardship analysis.

Our inquiry does not end here though, as there was also evidence of other

physical conditions that may properly be considered, namely the Property’s irregular

27

shape, extensive woodlands, and a bisecting stream. Although there was evidence

of these other physical conditions, we agree with the Board that Merion Ridge did

not demonstrate how any of those conditions create a hardship. Notwithstanding

those conditions, Merion Ridge still believed it could construct four single-family

units on the Property. This illustrates it is the steep slopes that are the real hardship,

which prevent development of the Property without a variance, but, as stated above,

we cannot consider hardships that are the result of the Zoning Ordinance. For similar

reasons, Merion Ridge has not established that a unique physical condition of the

Property is resulting in a hardship entitling it to relief from the cluster development

requirements. Thus, we affirm the Board’s decision as it relates to the first criterion.

Because an applicant bears the burden of establishing every criterion for a

variance, Tidd, 118 A.3d at 8, our analysis could end here. However, for

completeness, we address Merion Ridge’s other issues.

C. Whether the Board erred in concluding that one house on a 4.7-acre lot

is a reasonable use when the Zoning Ordinance only requires 10,000 square

feet

1. Parties’ Arguments

Merion Ridge argues that under the Zoning Ordinance, and ordinary

circumstances, it could build up to 20 single-family detached dwellings or up to 18

single-family detached dwellings in a cluster development; thus, building just one

dwelling on a 4.7-acre lot, when the Zoning Ordinance only requires a 10,000-

square-foot minimum lot size, is not reasonable. Merion Ridge asserts the adjacent

development, Merion Hill, contains 92 dwellings, and is also on steep slopes within

the R-1 District. To the extent the Board relied upon testimony that it would be

physically possible to build one dwelling on the Property, Merion Ridge contends

the Board did so in error because the correct inquiry was whether that use would be

28

reasonable, not just possible. (Merion Ridge’s Br. at 30-34 (citing RDM Grp. v.

Pittston Twp. Zoning Hearing Bd., 311 A.3d 1216 (Pa. Cmwlth. 2024), and Pohlig

Builders); see also Merion Ridge’s Reply Br. at 7 (stating RDM rejected the “simply

possible analysis”).). Merion Ridge asserts there is no requirement that it provide a

“detailed financial analysis” before it is entitled to variance relief. (Merion Ridge’s

Reply Br. at 9.)

The Board responds the record demonstrates the “Property can be reasonably

developed in stricter conformity with” the Zoning Ordinance by building one house.

(Board’s Br. at 21.) The Board argues it credited Borough’s Engineer over Merion

Ridge’s Engineer that construction of one house would create less disturbance of the

steep slopes. Again, the Board argues Merion Ridge’s plan is driven by the desire

for greater profit margins. The Board asserts RDM is distinguishable because, there,

the property was in an area surrounded by warehouses, which was the proposed use,

and evidence was presented that the property was of limited value and marketability

in the residential zoning district in which it was located. In contrast, here, the Board

contends, the only evidence presented was a conclusory statement that the proposed

plan was the “best means” of developing the Property. (Id. at 24.)

2. Analysis

Section 910.2(a)(2) of the MPC sets forth the second criteria for variance

relief:

That because of such physical circumstances or conditions, 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.

29

53 P.S. § 10910.2(a)(2).

Our Supreme Court has stated that to meet the second criterion, an applicant

must “show that a denial of the requested variance would make the property

practically useless.” Larsen, 672 A.2d at 291-92 (emphasis added). This is not to

say that an applicant must “show that the property at issue is valueless without the

variance or that the property cannot be used for any permitted purpose.” Marshall

v. City of Philadelphia, 97 A.3d 323, 330 (Pa. 2014) (emphasis added). “Showing

that the property at issue is ‘valueless’ unless the requested variance is granted ‘is

but one way to reach a finding of unnecessary hardship; it is not the only factor nor

the conclusive factor in resolving a variance request.’” Id. (quoting Hertzberg, 721

A.2d at 48). Rather, Hertzberg dictates that we look at, among other factors, “the

economic detriment to the applicant if the variance was denied, the financial

hardship created by any work necessary to bring the building into strict compliance

with the zoning requirements[,] and the characteristics of the surrounding

neighborhood.” Hertzberg, 721 A.2d at 48, 50.

Further, “[t]he test for entitlement to a variance . . . is not whether the property

use sought is the ‘best’ use for that property, but rather whether the property can

reasonably be used in a manner consistent with the ordinance.” Appeal of Dinu, 452

A.2d 95, 97 (Pa. Cmwlth. 1982). In Yeager v. Zoning Hearing Board of the City of

Allentown, we stated:

Ever since our Supreme Court decided Hertzberg, we have seen a

pattern of cases arguing that a variance must be granted from a

dimensional requirement that prevents or financially burdens a property

owner’s ability to employ his property exactly as he wishes, so long as

the use itself is permitted. Hertzberg stands for nothing of the kind.

Hertzberg articulated the principle that unreasonable economic burden

may be considered in determining the presence of unnecessary

hardship. It may also have somewhat relaxed the degree of hardship

30

that will justify a dimensional variance. However, it did not alter the

principle that a substantial burden must attend all dimensionally

compliant uses of the property, not just the particular use the owner

chooses. This well-established principle, unchanged by Hertzberg,

bears emphasizing in the present case. . . .

As this [C]ourt recently noted:

[W]hile Hertzberg eased the requirements . . . it did not

make dimensional requirements . . . “free-fire zones” for

which variances could be granted when the party seeking

the variance merely articulated a reason that it would be

financially “hurt” if it could not do what it wanted to do

with the property, even if the property was already being

occupied by another use. If that were the case,

dimensional requirements would be meaningless—at best,

rules of thumb—and the planning efforts that local

governments go through in setting them to have light, area

(side yards) and density (area) buffers would be a waste of

time.

Soc[’]y Created to Reduce Urban Blight v. Zoning Bd. of

Adjustment, 771 A.2d 874, 878 (Pa. Cmwlth. 2001).

Yeager, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (emphasis in original). We recently

restated these principles in Slate Hills Enterprises, Inc. v. Zoning Hearing Board of

Portland Borough, 303 A.3d 846, 851 (Pa. Cmwlth. 2023).

In sum, “[m]ere economic hardship will not of itself justify a grant of a

variance,” and “[a] variance will not be granted because a zoning ordinance deprives

the landowner of the most lucrative and profitable uses.” Wilson v. Plumstead Twp.

Zoning Hearing Bd., 936 A.2d 1061, 1069, 1070 (Pa. 2007).

The gist of Merion Ridge’s argument on this issue is that, absent the steep

slopes, Merion Ridge would be permitted to construct significantly more units than

Merion Ridge proposed on the Property; therefore, Merion Ridge’s application

31

seeking to construct four units was reasonable, and the Board’s conclusion that one

unit on a property much larger in size than the Zoning Ordinance requires for one

unit is unreasonable per se. Implicit in this argument is that constructing four units

instead of one unit is more profitable, which is confirmed by the testimony of Merion

Ridge’s witnesses. (See, e.g., R.R. at 119a (Principal identifying one of the

motivating factors for constructing more houses was “[m]oney”), 140a-41a

(Landscape Architect identifying “financial” as one of the reasons building less units

was undesirable); see also id. at 140a (Landscape Architect describing how one unit

would have to be larger due to the “different kind of market”).)

The “economic detriment to the applicant if the variance was denied” is

certainly a consideration that the Supreme Court identified as appropriate. See

Hertzberg, 721 A.2d at 50. Likewise, “the financial hardship created by any work

necessary to bring the [property] into strict compliance with the zoning

requirements” is a proper consideration. Id. The difficulty here is the dearth of such

evidence to evaluate whether zoning relief is necessary. Aside from the general

statements from the witnesses identified above, the only other financial evidence

presented was Principal’s testimony that he purchased the Property, and the tract in

Township, for $375,000, which he considered a “good price.” (R.R. at 110a, 112a.)

Without such evidence, it is understandably difficult to evaluate whether one unit or

some other number of units is reasonable.

Merion Ridge insists its motivation for the four-unit cluster development is

minimization of the disturbance to the steep slopes, preservation of the woodlands,

avoidance of the stream, and promotion of a “sense of community” and “esthetic[s],”

as testified to by Landscape Architect. (See id. at 121a, 124a-25a, 129a-31a, 133a-

34a, 142a.) Landscape Architect and Merion Ridge’s Engineer also both testified as

32

to how fewer units and/or a traditional, non-clustered configuration resulted in

greater disturbance to the steep slopes, than the proposed four-unit, clustered plan.

(See id. at 133a-39a, 161a-64a, 166a-67a.) Importantly, though, the Board did not

credit this evidence and, instead, credited the testimony of Borough’s Engineer that

less disturbance would occur if fewer units were constructed. (FOF ¶ 21 (D)-(E),

(I).) It is beyond cavil that the zoning hearing board, as fact finder, is the sole judge

of witness credibility and evidentiary weight, and we “may not substitute [our]

interpretation of the evidence for that of the [zoning hearing board].” Tidd, 118 A.3d

at 13. The Board’s findings are entitled to deference and should not be disturbed on

appeal so long as they are supported by substantial evidence. RDM Grp., 311 A.3d

at 1227. “It is irrelevant whether the record contains evidence to support findings

other than those made by fact finder; the critical inquiry is whether there is evidence

to support the findings actually made.” Liberties Lofts LLC v. Zoning Bd. of

Adjustment, 182 A.3d 513, 529 (Pa. Cmwlth. 2018). Here, based on the credited

testimony of Borough’s Engineer, there is substantial evidence to support the

Board’s findings.

The mere fact that more units would be permitted on the Property, but for the

steep slopes, does not automatically entitle Merion Ridge to relief. To hold it does

would eviscerate the Supreme Court’s holding in Hertzberg that “multiple factors”

are to be considered. 721 A.2d at 48, 50.

We are likewise not persuaded that the unreasonableness of the Board’s

decision is demonstrated by comparing Merion Ridge’s proposed plan with the

adjacent Merion Hill development. Again, while it is true that the Supreme Court

said “the characteristics of the surrounding neighborhood” were an appropriate

consideration in evaluating a variance request under the relaxed Hertzberg standard,

33

id., there is minimal record evidence from which to draw such comparisons. Merion

Ridge’s Engineer did not know the amount of steep slopes on the Merion Hill

development or what the Zoning Ordinance required at the time Merion Hill was

constructed in the 1990s. (R.R. at 182a-83a.) Thus, as Borough’s Engineer

cautioned, it is not a “good idea” to compare properties without considering their

unique characteristics. (Id. at 191a-92a.)

Finally, this Court’s decision in RDM Group does not compel that we reverse

the Board’s decision. While RDM Group does state that applying a “simple

‘possibility’ standard” is not the law, and that, instead, the test is whether the

landowner can make any reasonable use of the property, 311 A.3d at 1226, the facts

of that case are distinguishable from the present one. There, the applicant sought

use and dimensional variances to construct a warehouse on a nearly 18-acre

triangular piece of land containing woodlands and a creek. Id. at 1220. Although

the property was located in a residential zoning district, the nearest residence was

1,000 feet away, and the property was bordered by an industrial zoning district

containing other warehouses. Id. At the hearing, the applicant presented numerous

witnesses, including a real estate appraiser who testified as to the marketability and

value of the property and a professional land use planner who testified it was

“impractical” to develop the property as a residential use with industrial uses on two

sides. Id. at 1221-22. The local zoning hearing board denied the application,

concluding, in part, that there was a “possibility” to develop the property as a single-

family residence. Id. at 1223. The applicant appealed to the county common pleas

court, which affirmed. Id. Before this Court, the applicant argued, among other

things, that the zoning hearing board erred or abused its discretion in denying the

use variance. We agreed, pointing to the zoning hearing board’s disregard of

34

precedent “recogniz[ing] that the character and use of surrounding properties can

constitute unique circumstances justifying the issuance of a variance where they are

sufficiently dissimilar to, and prohibitive of, the use of the subject property as

zoned.” Id. at 1226. We explained the property’s location, coupled with the expert

testimony that the property is of minimal value as a residence, was sufficient, as a

matter of law to conclude that the hardship presented was peculiar to that property.

Id. at 1227. There is little to no such evidence here apart from Landscape Architect’s

testimony that Merion Ridge thinks that the four-unit cluster development is “the

best means of developing the [P]roperty.” (R.R. at 130a-31a.)24

Moreover, in RDM Group, acknowledging that a zoning hearing board’s

findings are generally entitled to deference, we concluded the zoning hearing board’s

findings in that case were lacking in numerous regards. 311 A.3d at 1127. First, we

noted that “nowhere did the [zoning hearing board] make any specific findings

regarding any unique characteristics of the [p]roperty or any hardship that the

surrounding uses impose on the [p]roperty.” Id. at 1228. Second, we stated the

zoning hearing board’s decision lacked any determinations as to weight of the

evidence or credibility to support its conclusions, which was “particularly significant

given the fact that the testimony of all of [the applicant’s] expert and fact witnesses

was virtually uncontradicted and, in certain respects, corroborated by the

[t]ownship’s own engineer.” Id. We further explained that “[t]o the extent [] the

[zoning hearing board] implicitly made credibility and evidentiary weight

determinations without acknowledging or evaluating the testimony of [the

24

This testimony, under our precedent, would still be insufficient. See Appeal of Dinu,

452 A.2d at 97 (“The test for entitlement to a variance . . . is not whether the property use sought

is the ‘best’ use for that property, but rather whether the property can reasonably be used in a

manner consistent with the ordinance.”).

35

applicant’s] witnesses in its written opinion, those determinations were arbitrary and

capricious and are disregarded.” Id. In contrast, here, as discussed above, the Board

did make detailed findings, albeit on remand, weighing the evidence and crediting

Borough’s Engineer over Merion Ridge’s witnesses.

In summary, we discern no error or abuse of discretion in the Board’s decision

as it relates to the second criterion for variance relief.

D. Whether the Board erred in concluding the hardship was self-created

1. Parties’ Arguments

Merion Ridge argues the Board erred in concluding it created its own hardship

by seeking to “overdevelop” the Property. Rather, Merion Ridge points to the

unique existing conditions, such as the unique shape caused by PennDOT’s taking

or the Property’s naturally occurring physical conditions.

The Board argues any hardship here is self-created by Merion Ridge, which

proposed a plan on a property that does not otherwise qualify for it. To the extent

Merion Ridge points to the adjacent development, the Board points out that Merion

Hill is located on a lot exceeding the 15-acre minimum lot size for cluster

developments.

2. Analysis

Section 910.2(a)(3) of the MPC sets forth the third criterion for variance relief:

“That such unnecessary hardship has not been created by the appellant.” 53 P.S.

§ 10910.2(a)(3). The courts have recognized that a self-created hardship can occur

“where the purchase price was too dear” or the “transfer of the property” created the

hardship. Wilson, 936 A.2d at 1069 (citation omitted). Another example of a self-

created hardship is where a lot is subdivided in a sale, resulting in physical features

36

in the subdivided lots that are at issue. Id. at 1069 n.12. Self-created hardships can

also be created through neglect of the property owner. Id. “[P]re-purchase

knowledge of zoning restrictions limiting development, without more, does not

create a hardship.” Id. (citation omitted). Similarly, “[s]elf-inflicted economic

hardship is not justification for a grant of a variance.” Id. at 1269 (citation omitted).

Given the Board’s determination that no hardship was created by the

Property’s physical conditions, which, for the reasons set forth above, we conclude

was not in error, it is unnecessary to reach this issue because, obviously, if there is

no hardship, it cannot be self-created. However, to the extent there was any

hardship, based upon the Board’s findings as to the motivation behind the proposed

development, that hardship would necessarily have been self-created. See

Lawrenceville Stakeholders v. City of Pittsburgh Zoning Bd. of Adjustment, 247

A.3d 465, 475 (Pa. Cmwlth. 2021) (“Where variances are sought solely to enhance

profitability, the asserted hardship arises not from the nature and circumstances of

the property itself but is self-inflicted by way of the variance applicant’s preferred

or proposed use of the property.”).

Merion Ridge again points to RDM Group for support, but, as explained

above, RDM Group is factually distinguishable. Here, unlike there, the Board did

not “summarily conclude” the hardship was self-imposed but determined it was due

to the nature of Merion Ridge’s proposed plan, the faults of which the Board

described in detail throughout its decision. Thus, this issue is not a basis for reversal

of the Board’s decision.

37

E. Whether substantial evidence exists to support the Board’s findings that

the variances would alter the essential character of the neighborhood or

zoning district, would substantially or permanently impair the appropriate

use or development of adjacent property, or would be detrimental to public

welfare

1. Parties’ Arguments

Merion Ridge argues the Board erred in determining the requested variances

would alter the essential character of the neighborhood, substantially impair the

appropriate use of the adjacent property, and be detrimental to public welfare.

Merion Ridge challenges Finding of Fact 23, which relates to protecting adjacent

properties and risks associated with development of steep slopes, as being irrelevant

to the variance request and, even if relevant, lacking support of substantial evidence.

It asserts Merion Ridge’s Engineer testified the plan would not alter the essential

character of the neighborhood or district, would not substantially impair the use and

development of adjacent property, and would not be detrimental to public health,

safety, and welfare. It argues this testimony established the Property could be safely

developed, similar to other properties with steep slopes. Similarly, Merion Ridge

argues there was testimony why the low-density cluster development was

appropriate here. According to Merion Ridge, the only adverse testimony was by

Borough’s Engineer, which was “general” and “conclusory,” not specific to this

plan. (Merion Ridge’s Br. at 39.)

The Board argues Merion Ridge did not meet its burden of showing the

variance would not alter the essential character of the neighborhood, substantially

impair the appropriate use of adjacent property, or be detrimental to public welfare.

It argues the credited testimony of the Borough’s Engineer supports the Board’s

findings.

38

2. Analysis

Section 910.2(a)(4) of the MPC sets forth the fourth criterion for variance

relief:

That the variance, if authorized, will not alter the essential character of

the neighborhood or district in which the property is located, nor

substantially or permanently impair the appropriate use or development

of adjacent property, nor be detrimental to the public welfare.

53 P.S. § 10910.2(a)(4).

Merion Ridge asserts it established, through the testimony of Merion Ridge’s

Engineer that this criterion was met. He testified that “with proper engineering and

geotechnical studies[, the Property] can be developed in a safe manner,” pointing

generally to “many parts” of the Borough that have been developed on steep slopes.

(R.R. at 155a.) However, Borough’s Engineer offered competing testimony

describing some of the issues that arose with those developments. (Id. at 191a-92a.)

Merion Ridge’s Engineer also explained how, in his opinion, the plan did not alter

the essential character of the neighborhood because, but for the Property’s physical

characteristics, more than five times as many homes could have been constructed on

the Property. (Id. at 157a-58a.) However, this relates to the Property itself and does

not shed any light on the essential character of the neighborhood. There was some

evidence related to Merion Hill, but those details were limited, (id. at 158a-60a,

182a-83a), and it was also, at best, evidence of one development, not necessarily the

essential character of the neighborhood. In terms of the zoning relief from the public

sewer requirement, there was no evidence presented as to why that requirement

imposed a hardship, particularly when public sewer was available. Similar to some

of the other criteria, in order to reverse the Board on this issue, we would have to

disturb the Board’s factual findings, reweigh the evidence, and make different

39

credibility determinations, which we cannot do. Tidd, 118 A.3d at 13. We reiterate

that “[i]t is irrelevant whether the record contains evidence to support findings other

than those made by fact finder; the critical inquiry is whether there is evidence to

support the findings actually made.” Liberties Lofts, 182 A.3d at 529.

To the extent Merion Ridge contends the Borough Engineer’s testimony was

“general” and “conclusory,” (Merion Ridge’s Br. at 39), we disagree. Borough’s

Engineer testified about the numerous risks associated with disturbances of steep

slopes, including “lack of stabilization and vegetation,” the resultant runoff, and the

risk of landslides. (R.R. at 189a.) He also described safety concerns with retaining

walls, as well as providing adequate access for emergency personnel. (Id. at 190a-

91a.) He did not think comparing this Property to other properties where

development was permitted on steep slopes was a “good idea” because it did not

take into account the properties’ unique characteristics. (Id. at 191a-92a.)

As we must view the evidence presented in the light most favorable to the

party that prevailed before the fact finder, including by giving that party the benefit

of all reasonable inferences arising therefrom, Tidd, 118 A.3d at 13, we conclude

that based upon our review of the record and the Board’s credibility determinations,

there was substantial evidence to support the Board’s findings.

F. Whether the Board erred in concluding that one single-family dwelling

on the Property would represent the minimum variance required to afford

Merion Ridge relief and represented the least modification required

1. Parties’ Arguments

Merion Ridge argues the Board’s finding that it did not seek the minimum

variance required suffers from the same defect as the Board’s findings related to

reasonable use: it wrongly focused on the possibility of building just one dwelling,

which is a “draconian approach.” (Merion Ridge’s Br. at 40.) Merion Ridge argues

40

it presented extensive evidence of how the plan was revised more than once to

minimize disturbance to the Property’s steep slopes. Moreover, Merion Ridge

argues variance relief is necessary just to access the Property.

The Board argues the record establishes that the requested variances are not

the minimum required to afford relief as the evidence shows it is possible to

construct one house and there is no evidence that one house is not a reasonable use

of the Property. It asserts Merion Ridge’s argument that constructing one house

would result in more steep slope disturbance than building four houses was not

persuasive.25 In addition, with regard to the variance for the cluster development,

the Board argues Merion Ridge presented no evidence that on-lot sewer systems

were feasible on the Property or that public sewer was not required, especially in

light of the Borough Engineer’s testimony that public sewer was available.

2. Analysis

Section 910.2(a)(5) of the MPC sets forth the fifth criterion for variance relief:

“That the variance, if authorized, will represent the minimum variance that will

afford relief and will represent the least modification possible of the regulation in

issue.” 53 P.S. § 10910.2(a)(5).

Our analysis of this issue is largely controlled by our analysis of the second

issue related to whether one unit would be a reasonable use; thus, we need not repeat

it here. However, to the extent Merion Ridge argues variance relief is required

notwithstanding whether it builds one unit or four units, we addressed a similar

25

In its reply brief, Merion Ridge disputes this characterization as being a capricious

disregard of the evidence, which shows both of Merion Ridge’s experts testified any disturbance

would be caused by providing access not constructing the houses, and a mischaracterization of the

testimony.

41

argument in Prime Development Group, LP v. Upper Makefield Township Zoning

Hearing Board (Pa. Cmwlth., No. 1281 C.D. 2020, filed December 23, 2021).26

There, we stated that because the entire property was on hydraulic soils, a variance

would be required for any construction. Id., slip op. at 9. We explained:

The critical element [] is the degree of modification required to retain

a minimal effect on the hydraulic soils, steep slopes, and mature trees.

The fifth criterion requires the “least modification to the regulation at

issue.” Section 910.2(a)(5) of the MPC, 53 P.S. § 10910.2(a)(5).

Notwithstanding that a smaller home would have less impact on the

natural features sought to be protected in the [zoning d]istrict, [the

d]eveloper admitted that there was no attempt to redesign the house to

reduce the footprint or square footage.

Id. (emphasis in original).

Here, it is likewise the degree of the requested variance with which the Board

took issue, finding one unit is the least modification required to still enable Merion

Ridge to enjoy reasonable use of the Property. Merion Ridge argues the proposed

plan provides the least disturbance to the steep slopes, but as discussed above, that

evidence was not credited by the Board.

For all of these reasons, we discern no error in the Board’s decision as it relates

to this criterion.

G. Whether the Board erred in its findings related to the criteria set forth

in the Zoning Ordinance

1. Parties’ Arguments

Merion Ridge asserts numerous alleged errors by the Board as to its

application of the criteria set forth in the Zoning Ordinance for variance relief. It

26

Unreported panel decisions of this Court may be cited for their persuasive value pursuant

to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and Section

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

42

argues the Board found the plan was inconsistent with the spirit, purpose, and intent

of the Zoning Ordinance because the Property is not large enough for a cluster

development, but, in doing so, it ignores this is the variance relief Merion Ridge is

requesting. According to Merion Ridge, “[u]nder the Board’s finding, no request

for a variance could be found to be consistent with the spirit, purpose, and intent of”

the Zoning Ordinance. To the extent the Board found the development is not in the

Borough’s best interest or not developed in accordance with sound standards for

subdivision and land development practice, Merion Ridge argues these are

subjective provisions that lack a standard from which to judge compliance. It also

argues the Board’s findings related to burdening public services and facilities is

based on the Borough Engineer’s conclusory and general testimony.

The Board argues Merion Ridge failed to present evidence to satisfy all of the

requirements for variance relief, and the Court, upon review, must defer to the

Board’s factual findings.

2. Analysis

Section 113-120 of the Zoning Ordinance sets forth an exhaustive list of items

the Board is required to consider in determining whether variance relief is warranted:

A. Consider the suitability of the property for the use desired and

determine whether the proposed change is consistent with the spirit,

purpose and intent of this chapter and Comprehensive Plan.

B. Determine that the proposed change will not substantially injure or

detract from the use of the neighboring properties or from the

character of the neighborhood and that the use of the adjacent

properties are adequately safeguarded.

C. Determine that the proposed change will serve the best interest of

the Borough. . . .

43

D. Consider the effect of the proposed change upon the logical,

efficient and economical extension of public services and facilities

such as public water, sewers, police, fire protection and public

schools.

E. Consider the suitability of the proposed location of use with respect

to probable effects upon highway traffic and assure adequate access

arrangements in order to protect major roads from undue congestion

and hazard.

F. Be guided by its study, review and recommendation by sound

standards of subdivision and land development practice where

applicable.

G. Imposing such conditions and safeguards in addition to those

required which are necessary to assure compliance with the intent of

this chapter and the Comprehensive Plan. Such conditions may

include, but are not limited to, harmonious design of buildings,

planting and its maintenance as a sight or sound screen, the

minimizing of noxious, offensive or hazardous elements and

adequate standards of parking, loading and sanitation.

H. In all applications for variances and special exceptions, the Board

shall examine the effect of the proposed use or expansion of an

existing use on the demands for parking in the Borough. The . . .

Board shall evaluate the necessity of providing off-street parking

regardless of whether off-street parking is required by the [Zoning

Ordinance]. The . . . Board shall require the applicants to present

testimony regarding the effect of the proposed use on parking

problems in the Borough.

....

K. In a variance case, the applicant shall have the burden of

establishing by competent evidence and testimony the criteria

required by the [MPC] for the granting of a variance and that the

literal enforcement of the provisions of this chapter will result in

unnecessary hardship as that term is defined by relevant statutory

provisions and current case law. The applicant seeking a variance

will also have the burden of establishing that the allowance of a

variance will not be contrary to the public interest.

44

L. In considering whether the allowance of a special exception or

variance is contrary to the public interest, the . . . Board shall

consider whether the application, if granted, will:

(1) Substantially increase traffic congestion in the streets

surrounding the subject site.

(2) Increase the risk of fire or panic or otherwise endanger the

public safety.

(3) Overcrowd the land or create undue concentration to

population.

(4) Be suitable for the property in question so as to be

consistent with the spirit and purpose of the provisions of

this chapter.

(5) Intrude upon the adequacy of natural light and air to

adjoining properties.

(6) Create extraordinary burdens on public, private or

community water systems or upon groundwaters or wells

within the neighborhood.

(7) Overburden the public sanitary sewer system or present

other environmental problems for the area.

(8) Place undue burdens on the police, fire, ambulance or

other emergency services provided throughout the

neighborhood.

(9) Cause adverse effects to the appropriate use to the adjacent

properties in the neighborhood where the property is

located.

(10) Cause adverse impacts due to its building, parking areas,

loading areas, outdoor activity areas, light sources, trash

areas, storage areas and other potential nuisances to

abutting properties and the neighborhood as a whole.

(11) Cause risk or damage to the safety of persons or property

by improper location or design of facilities for ingress and

egress to or from the property in question.

45

(12) Cause negative impacts to any rivers, streams, ponds,

floodplains, wetlands, parklands, groundwater,

vegetation, steep slopes, air and ground.

(13) Overburden the street parking in the area.

(14) Otherwise adversely [a]ffect the public safety, health,

morals and general public welfare of the community.

(Zoning Ordinance § 113-120.)27

The above criteria largely track or fall within the criteria set forth in the MPC.

Since the MPC criteria have already been addressed by this Court, and we discern

no error or abuse of discretion in the Board’s decision related to those criteria, we

likewise find no error or abuse of discretion as it relates to the criteria set forth in the

Zoning Ordinance.28

III. CONCLUSION

Based on the foregoing, we discern no error or abuse of discretion by the

Board in evaluating Merion Ridge’s application for variances from the Zoning

Ordinance’s steep slope and cluster development provisions. Accordingly, we

affirm common pleas’ Order, which affirmed the Board’s decision denying Merion

Ridge’s variance application.

__________________________________________

RENÉE COHN JUBELIRER, President Judge

27

The section also appears to set forth standards for special exceptions. The omitted

paragraphs pertain only to special exceptions.

28

The Board found in favor of Merion Ridge on a number of the criteria, such as the plan

would not negatively impact some public services, harmfully affect traffic, or impact parking

demand. (Remand FOF ¶ 25(D)-(E), (H).)

46

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal of Merion Ridge, LLC :

from the Decision dated :

March 31, 2022, of the Zoning :

Hearing Board of West :

Conshohocken :

: No. 1567 C.D. 2023

Appeal of: Merion Ridge, LLC :

ORDER

NOW, December 9, 2024, the Order of the Court of Common Pleas of

Montgomery County, entered in the above-captioned matter, is AFFIRMED.

__________________________________________

RENÉE COHN JUBELIRER, President Judge