The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
People’s Property, LLC and :
Annie Marie, LLC, :
Appellants :
:
v. : No. 701 C.D. 2024
: Argued: April 8, 2025
Lower Nazareth Township Zoning :
Hearing Board and Lower Nazareth :
Township :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: June 27, 2025
People’s Property, LLC (People’s Property) and Annie Marie, LLC
(Annie Marie) (collectively, Owners) have appealed an order of the Court of
Common Pleas of Northampton County (trial court) that denied Owners’ land use
appeal regarding their properties located at 4683 Ash Drive, known as “Lot 99,” and
at 4673 Ash Drive, known as “Lot 97,” in Lower Nazareth Township (Township).
In so holding, the trial court affirmed the decision of the Township Zoning Hearing
Board (Zoning Board) that Lots 97 and 99 are not lawful, nonconforming lots that
can be developed for a reasonable use. The trial court also affirmed the Zoning
Board’s denial of variances from the Township’s Floodplain Management
Ordinance (Floodplain Ordinance)1 to allow Lots 97 and 99 to be used for a
residence with an accessory on-lot septic system. Owners contend that the trial court
1
LOWER NAZARETH TOWNSHIP FLOODPLAIN MANAGEMENT ORDINANCE, No. 212-06-14, enacted
June 11, 2014, as amended.
and the Zoning Board erred in holding that Lots 97 and 99 could not be developed
for any purpose and in holding that Owners’ evidence did not establish grounds for
variances from the Floodplain Ordinance. Upon review, we reverse the trial court
and remand the matter to the trial court for further proceedings.
Background
Lots 97 and 99 are located in the Township’s low density residential
zoning district (LDR District), which currently requires a minimum lot size of one
acre. The two lots were created in the subdivision and development plan for Ridge
View Estates East that was recorded on October 15, 1973. Each lot is approximately
0.33 acre in size.
By resolution of January 27, 1982, the Township Board of Supervisors
(Township Supervisors) revoked its approval of the 1973 plan under authority of
Ordinance No. 63 of 1977, known as the Township’s Subdivision and Land
Development Ordinance (SALDO). Reproduced Record at 142a-43a (R.R. __).
Paragraph 1 of the resolution stated that “[t]he final subdivision approval of lots 5,
15-19, 25-31, 35-45, 49-58, 67-70, 91-96, 99, as shown on the Plan of Ridge[ V]iew
Estates East is revoked and said plan is hereby recalled as to said lots and
appurtenant subdivision improvements.” Id. at 143a. (emphasis added). Paragraph
2 of the resolution directed the then-developer, KBK Associates, “to submit
subdivision and land development plans and supporting documents and material
consistent with Township Ordinance No. 63 before continuing the development of
its above referenced holdings.” R.R. 143a (emphasis added). In a “whereas” clause,
the resolution stated that “substantial development has occurred only in Phase I
consisting of lots: 6-14, 32, 33, 34, 97, 98 of [KBK Associates’] holdings[.]” R.R.
142a (emphasis added). In short, the 1982 resolution did not apply at all to Lot 97
2
and, as to Lot 99, merely required the future development of Lot 99 to conform to
the SALDO.
On February 13, 1987, KBK Associates recorded a new subdivision
plan (1987 Plan) for Ridge View Estates East, titled “Plan of Lots—Phase II.” R.R.
138a. The notes to the 1987 Plan state, in pertinent part, as follows:
Note 1. The subdivision plan of Ridge[ V]iew Estates East,
approved by the [Township Supervisors] on August 9, 1973, is
recorded in the Office of the Recorder of Deeds for Northampton
County in Plan Book 31, Page 2.
Note 2. This plan has been prepared to meet the directions set
forth by the [Township Supervisors] Resolution adopted the 27th
day of January, 1982.
Id. (emphasis added). At the bottom of the 1987 Plan is a small inset map of lots
that shows “Phase II” lots in shading but without lot numbers. That inset map also
shows the location of an “associated off[-]site storm water control facility.” Id. At
the approximate location of Lot 97 (outside the shaded lots) is an asterisk that refers
to a note on the 1987 Plan that states as follows:
* Flood Plain Preservation Area—
This land to be merged with adjoining lot or dedicated or sold to
Lower Nazareth Township or Northampton County or the
Lehigh Valley Conservancy, or some other similar organization.
R.R. 138a (emphasis added). The 1987 Plan did not further define “this land” to be
“merged with adjoining lot” or dedicated either to a political subdivision or a
conservancy. Id.
Additional notes on the 1987 Plan state as follows:
Lot Numbers 91, 92 and 93 are not suitable for on-lot sewage
disposal systems at this time. Earth fill material shall be placed
3
to final grade and may be tested according to [the Department of
Environmental Resources (D.E.R.)] regulations.2
Lot Numbers 94, 95 and 96 have been filled with earth and
graded in September, 1984. Testing for site suitability shall be
according to D.E.R. regulations.
R.R. 138a (emphasis added).
In 1988, the Township adopted its first floodplain ordinance. The
current Floodplain Ordinance, which took effect in 2014, placed all of Lot 99 and
most of Lot 97 within the 100-year flood plain.
On March 22, 1988, KBK Associates conveyed Lots 95-99 in a single
deed to William J. Schnierlein and Kenneth A. Erney, co-partners, who conveyed
these lots in a single deed to Kenneth A. Erney Jr. (Erney) on November 27, 2002.
In 2020, Erney conveyed these lots to five separate LLCs, each owned or operated
by Adam Pooler (Pooler). Pertinent to this appeal, People’s Property purchased Lot
99, and Annie Marie purchased Lot 97.
Land Use Appeal on Lot 99
On December 15, 2020, People’s Property applied for a permit to install
an on-site septic system on Lot 99. The Township’s zoning and floodplain
administrator, Lori Seese (Seese), refused to process the application for the stated
reason that it did not identify the use for which the sewage system would be installed
and did not comply with the Floodplain Ordinance. People’s Property appealed to
the Zoning Board to require a review of the application or, in the alternative, the
grant of a variance from the Floodplain Ordinance.
On February 3, 2021, People’s Property applied for a building permit
for Lot 99, which was denied for the stated reason that a single-family dwelling was
2
The Pennsylvania Department of Environmental Resources is now known as the Pennsylvania
Department of Environmental Protection.
4
not permitted on Lot 99 under the Floodplain Ordinance. The Floodplain Ordinance
permits land in the floodplain to be used for “front, side, and rear yards,” but “such
yards are not to be used for on-site sewage disposal systems[.]” FLOODPLAIN
ORDINANCE, §4.01.F. Because all of Lot 99 is located in the floodplain district, “the
proposed septic systems are within the setbacks.” Original Record (O.R.), Item 6 at
2b (Zoning Officer’s File (ZA2021-04), March 9, 2021, letter denying application
for single-family dwelling). The denial letter stated that a variance was needed for
the proposed single-family dwelling and accessory use of Lot 99.
People’s Property appealed to the Zoning Board, seeking a
determination that Lot 99 is a lawful nonconforming lot that can be developed for a
reasonable use under Section 1409.C of the Township’s Zoning Ordinance,3 ZONING
ORDINANCE, §1409.C, and a variance from Article 4 (Sections 4.01, 4.01.F, and
4.02.B) and Article 8 of the Floodplain Ordinance. FLOODPLAIN ORDINANCE art. 4,
8.
Land Use Appeal on Lot 97
On February 23, 2021, Annie Marie applied for building and sewer
permits for Lot 97, which were denied for the same reasons, i.e., that the applications
did not comply with the Floodplain Ordinance. Specifically, the proposed septic
systems, the rear yard, and a majority of the side yards “are within the floodplain[.]”
O.R., Item 6 at 3b (Zoning Officer’s File (ZA2021-05), March 9, 2021, letter
denying application for single-family dwelling). The denial letter stated a variance
was needed for the proposed single-family dwelling and accessory use of Lot 97.
3
LOWER NAZARETH TOWNSHIP ZONING ORDINANCE, enacted November 28, 2001, as amended
(Zoning Ordinance).
5
Annie Marie appealed the denials to the Zoning Board. It also
requested a determination that Lot 97 is a lawful nonconforming lot that can be
developed for a reasonable use under Section 1409.C of the Zoning Ordinance and
a variance from Article 4 (Sections 4.01, 4.01.F, and 4.02.B) and Article 8 of the
Floodplain Ordinance.
The appeals of Annie Marie and People’s Property were consolidated.
The parties agreed that testimony regarding Lot 99 would be incorporated into the
Lot 97 appeal.
Zoning Board Hearings
The Zoning Board held six hearings.
Pooler, the principal of the five LLCs, testified that prior to purchasing
the five lots, he contacted Seese, who advised that the lots were not “buildable lots”
and would not pass the percolation test necessary for an on-lot septic system. Notes
of Testimony (N.T.), 3/23/2021, at 13; R.R. 177a. However, the percolation tests
were “successful” and approved by the Township’s sewage enforcement officer.
N.T., 3/23/2021, at 13-14; R.R. 177a-78a. Pooler applied for, and was granted,
building permits for Lots 95 and 96, on which two homes have been built.
Seese’s letter of September 25, 2017, was introduced into evidence.
Referring to “4663--4683 Ash Drive-Floodplain and Zoning Analysis,” the letter
stated, in pertinent part, as follows:
Dear Mr. Pooler:
Per your request, I have reviewed the single-family dwelling
applications submitted for the five lots located at 4663 thru [sic]
4683 Ash Drive. You requested they be reviewed for compliance
with the Zoning Ordinance and the [T]ownship’s Floodplain
Ordinance. My comments are as follows:
1. Zoning—These five lots are existing non[]conforming lots
located in the [LDR District]. The lots are all less than a half-
6
acre. The current minimum lot size for a single-family dwelling
is 1 acre. That being said, the non[]conforming lot size does not
prevent the lots from being developed. The setbacks depicted on
the approved subdivision plan would apply to these lots.
2. Floodplain Ordinance—All five lots are located either
partially or entirely with[in] the AE zone of the 100-year
floodplain (FIRM Map Panel #42095C0255E, effective
7/16/14). An image from [the Federal Emergency Management
Agency’s (FEMA)] website is attached. I have outlined the
parcels and their locations within the floodplain below.
Parcel # Address Portion in Floodplain
[Lot 99] 4863[sic] Ash Drive All
[Lot 98] 4677 Ash Drive Majority
[Lot 97] 4673 Ash Drive Majority
[Lot 96] 4669 Ash Drive Small Portion
[Lot 95] 4663 Ash Drive Small Portion
Pursuant to [ ] Township Floodplain Ordinance #212-06-14, a
single[-]family dwelling is not permitted in the Floodplain
District (Article IV, Uses).
Furthermore, Section 8.03, Design and Construction Standards
requires that no part of the on-site sewage system be located
within the identified floodplain area. This means that Lots [99,
98 and 97] are not buildable for single[-]family dwellings.
In regard to Lots [96 and 95], however, it is possible that single[-
]family dwellings could be constructed on these lots since
smaller portions of these lots are within the floodplain. This is
assuming compliance with the Floodplain Ordinance and other
applicable State and Local regulations, particularly for on-lot
sewage facilities.
7
R.R. 100a-01a (emphasis added). The AE Zone is an area with a risk of flooding
such that it requires purchase of flood insurance.4
Pooler testified that after he bought the properties, the Township
offered him $10,000 for Lots 97-99. Pooler paid $32,000 for each lot and did not
accept the offer.
Owners presented several expert witnesses. Roger Lehmann
(Lehmann), a certified Pennsylvania sewage enforcement officer, testified that in
July of 2020, his soil tests identified two areas suitable for the installation of a septic
system. Lehmann explained that state law permits the installation of septic systems
in floodplains but not in “floodways,” which are designated by FEMA and refer to
streams that overflow their banks on occasion. N.T., 3/23/2021, at 72; R.R. 237a.
Neither Lot 99 nor 97 is located in a floodway. Lehmann testified that he has
supervised the installation of septic systems in floodplains throughout Pennsylvania,
and “they function appropriately.” N.T., 3/23/2021, at 73-74; R.R. 238-39a.
Lehmann opined that Lot 99 was appropriate for the proposed on-lot system.
Lehmann proposed an elevated septic system designed to prevent
sewage from leaking into the environment. During a flood, the effluent from the
septic tank is pumped into the mound. The pressurized system prevents effluent
from penetrating drain fields, which treats the effluent, or from surcharging into the
house.
4
The Floodplain Ordinance defines “AE Area/District” as “those areas identified as an AE Zone
on the [Flood Insurance Rate Maps (FIRM)] included in the [Flood Insurance Study (FIS)]
prepared by FEMA for which Base Flood Elevations have been provided[.]” FLOODPLAIN
ORDINANCE, §3.03.B. According to FEMA, “Zone AE is a high-risk area. Mandatory flood
insurance purchase requirements and floodplain management standards apply.” FEMA, Read your
Flood Map, https://www.fema.gov/sites/default/files/documents/how-to-read-flood-insurance-
rate-map-tutorial.pdf (last visited June 26, 2025).
8
Lehmann then responded to questions from Steven Nordahl, vice chair
of the Zoning Board, as follows:
[] Nordahl: And what about the effluent that’s in the [drain] field
once it’s flooded, it’s going to discharge.
[Lehmann:] It’s going to go down. When the flood waters
recede, for all intent and purposes, they go down and anything
inside the mound is going to go vertically as it does when the
water is put into it from the sewage disposal system. The systems
are installed in flood plains all across the Commonwealth of
Pennsylvania.
[] Nordahl: But in this case, a flood plain in this situation with
the actual field, that field is going to be saturated; it’s going to
have effluent in it, and it’s going to be mixing in with the flood
waters which means it’s going to discharge into the flood waters.
Any residual that’s there is going to discharge into the flood
waters.
[Lehmann:] I guess anything is possible.
N.T., 3/23/2021, at 76-77; R.R. 241a-42a (emphasis added).
Jason Bailey (Bailey), a civil engineer, also testified about Owners’
proposed septic system, opining that it constituted the minimum variance and least
modification necessary to allow reasonable use of Lots 97 and 99. Further, the
system would comply with Pennsylvania’s laws on sewage regulation. Bailey stated
that the addition of 2,000 cubic feet of fill would raise the base flood elevation by “a
half inch. But then you have to take that over the actual area of the entire upslope
waterway and it would be negligible at that point in time.” N.T., 3/23/2021, at 93;
R.R. 258a. Bailey opined that a variance would not “increase[] flood elevations [or]
additional threats to public safety[.]” N.T., 3/23/2021, at 97; R.R. 262a.
Jeremy Madaras (Madaras), a licensed professional engineer with
expertise in floodplains, testified that the floodplain on Lot 99 has a base flood
elevation of 353 feet. The residence is proposed at an elevation of 355 feet, 2 feet
9
above the floodplain. N.T., 12/21/2021, at 71-72; R.R. 359a-60a. “The top of soil”
for the proposed septic system would be at elevation 353.5 feet. N.T., 12/21/2021,
at 72; R.R. 360a. He opined that the fill proposed for the house and the septic system
will not increase the base flood elevation because the house will be built on a slab,
“outside of the floodplain.” Id. Madaras also opined that the proposed house and
septic system would not present a risk to the public health, safety and welfare.
Madaras opined that the 1987 Plan is ambiguous on the contours of the
“Floodplain preservation area.” N.T., 2/24/2022, at 13; R.R. 558a. The asterisk on
the inset map could be construed to mean “all lots which are unshaded on the original
plan.” Id. Even so, the note does not specify whether the “land” for preservation
included “all three lots, one lot, or a portion of a lot[.]” Id. The note did not specify
which lot was the “adjoining lot.” Id. Madaras found no restrictive covenant
recorded for either Lot 97 or 99. Madaras opined that the 1987 Plan did not effect a
restriction on the development of Lots 97-99.
The Township intervened and offered the testimony of Seese. She
testified that Lots 95 and 96 could be developed with single-family homes.
However, Lots 97-99 could not be developed because of their location in the AE
Zone. She so advised Pooler before he bought the lots and again in 2020.
Seese testified that in 2019, the Township decided that Lots 95-99 could
be useful in addressing the Township’s stormwater issues. Seese and Lori Stauffer,
the Township manager, informed Erney (then owner of the lots) of the Township’s
interest in purchasing his lots for stormwater remediation and obtained an appraisal.
The Township advised the appraiser that the lots were not buildable due to their
location in the AE Zone. Erney declined the Township’s offer. In February 2020,
shortly after his purchase of the lots, Pooler requested copies of the Township’s
10
appraisals for purposes of entertaining the Township’s potential purchase of the lots.
Pooler rejected the Township’s offer of $10,000.
The Township presented the expert witness testimony of Mark Bahnick
(Bahnick), a professional engineer, who reviewed the 1987 Plan. Bahnick opined
that the “Flood Plain Preservation Area” note at the bottom of the 1987 Plan applied
to Lots 97-99. N.T., 1/25/2022, at 24; R.R. 444a. He explained that “off-site
improvements” such as stormwater controls, open space, or “recreation areas” would
not be shown “on” the affected lots, but would nevertheless be established by the
recorded plan. N.T., 1/25/2022, at 40; R.R. 460a. Bahnick explained that “the
preparation of a record plan is a voluntary action by the landowner” and opined that
the landowner’s 1987 Plan made Lots 97-99 “non-building lots.” N.T., 1/25/2022,
at 41, 43; R.R. 461a, 463a.
Regarding Owners’ appeal of the Township’s handling of its sewage
permit, the Township offered the testimony of Christopher Noll (Noll), its sewage
enforcement officer. He commented on the sewage permit applications but neither
granted nor denied the applications. He opined that the applications did not satisfy
Act 5375 or the Township’s on-lot sewage disposal ordinance because there was not
a submitted planning module. Noll acknowledged that state law does not prohibit a
septic system in floodplains.
The Zoning Board also heard from numerous neighbors who opposed
Owners’ applications. They testified to the increased frequency and intensity of
storms that cause flooding and negatively impact their personal safety and property.
5
Act 537 refers to the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965)
1535, as amended, 35 P.S. §§750.1-750.20a (Act 537).
11
The neighbors presented, inter alia, photographs and videos of floods that impacted
Lots 97-99.
Zoning Board Decision
On June 10, 2022, the Zoning Board issued one decision denying all
three appeals.
Crediting Bahnick’s testimony, the Zoning Board found that the note
on the 1987 Plan established that Lots 97-99 were to be merged with Lot 96 or sold
“as a nondevelopable property to an outside agency.” Zoning Board Decision at 33-
34, Finding of Fact No. 393. As such, the Board found that “there can only be 2
homes constructed on the collection of [L]ots 95, 96, 97, 98, and 99[,]” which has
already occurred on Lots 95 and 96. Id. at 34, Finding of Fact No. 394. The Board
found that Lots 97-99 are “nondevelopable” and cannot be considered lawful
nonconforming lots for purposes of the Zoning Ordinance. Id. at 34, Finding of Fact
No. 403.
The Zoning Board found Pooler not credible. It found that he knew that
the subject lots could not be developed with single-family residences under the
Floodplain Ordinance. Pooler’s testimony that he believed he could remedy the
situation with variances was “arbitrary and irresponsible.” Zoning Board Decision
at 34, Finding of Fact No. 399. Any hardship was created by Pooler, who took title
to Lots 95-99 in five separate LLCs. Id., Finding of Fact No. 401.
The Zoning Board discredited Madaras’ testimony that a single-family
house built on a slab two feet above the base flood elevation would have no tangible
effect on the floodplain. It also rejected his opinion that the 1987 Plan did not render
Lots 97 and 99 nondevelopable.
12
The Zoning Board discredited Lehmann’s testimony because he did not
consider the Floodplain Ordinance when he designed the sewage disposal system for
Lot 99. Further, Lehmann acknowledged that it was “possible” that effluent could
discharge into the flood waters under his proposed septic system. Zoning Board
Decision at 35; Finding of Fact No. 411.
Based on the foregoing findings, the Board concluded that Owners
failed to meet their burden of proof for a variance from the Floodplain Ordinance
for Lots 97 and 99.
Owners appealed to the trial court, which took no additional evidence.
Trial Court Decision
By amended order of May 13, 2024,6 the trial court affirmed the Zoning
Board’s decision. The trial court held that the record supported the Zoning Board’s
finding that Lots 97 and 99 are not developable as lawful, nonconforming lots
entitled to reasonable use under Section 1409.C of the Zoning Ordinance. The
Township Supervisors’ 1982 resolution and the 1987 Plan eliminated any possible
development of Lots 97 and 99. The trial court held that the Zoning Board’s decision
on this point was properly based on Bahnick’s expert testimony that interpreted the
1987 Plan. The trial court further reasoned that Owners failed to prove the existence
of a nonconforming lot because there was no evidence that “the subject land” had
been developed with a single-family residence when the Floodplain Ordinance
became effective in 2014. Trial Court Op., 5/13/2024, at 10 (quoting Smalley v.
Zoning Hearing Board of Middletown Township, 834 A.2d 535, 539 (Pa. 2003)).
The trial court affirmed the Zoning Board’s denial of a variance from
the Floodplain Ordinance to allow single-family residences and on-site septic
6
The original order was dated April 29, 2024, but amended to correct the docket number.
13
systems on Lots 97 and 99. The trial court held that Owners failed to satisfy the
standards for a variance set forth in Section 111.E.3 of the Zoning Ordinance and
Section 7.02.F of the Floodplain Ordinance. Trial Court Op., 5/13/2024, at 12. The
Zoning Board acted within its discretion to discredit Madaras’ testimony that the
proposed development on Lots 97 and 99 would not be detrimental to the public
welfare or affect the base flood elevation. As the trier of fact, the Zoning Board was
entitled to draw conclusions on the credibility of the witnesses, accepting some, all,
or none of the testimony proffered. Trial Court Op., 5/13/2024, at 13.
Owners appealed to this Court.
Appeal
14
On appeal,7 Owners present three issues for our review.8 First, Owners
argue that the trial court erred in affirming the Zoning Board’s determination that
Lots 97 and 99 are not lawful, nonconforming lots by reason of the approved 1973
subdivision plan. Second, Owners argue that the Zoning Board erred in denying
their application for a variance from the Floodplain Ordinance to construct a single-
family residence and on-site septic system on Lots 97 and 99. Finally, Owners argue
that the trial court and Zoning Board erred in not addressing their argument that the
zoning officer improperly usurped the authority of the Township’s sewage
enforcement officer by rejecting the septic permits based on requirements in the
Floodplain Ordinance. We address these issues seriatim.
I. Lawful Nonconforming Lots
7
“Where the trial court receives no additional evidence on appeal from a zoning hearing board’s
decision, an appellate court’s standard of review is to determine whether the board committed an
abuse of discretion or an error of law.” Harrisburg Gardens, Inc. v. Susquehanna Township
Zoning Hearing Board, 981 A.2d 405, 410 (Pa. Cmwlth. 2009).
8
Owners list the following questions for our review in the Statement of Questions Involved:
1. Did the [trial court] err and apply an incorrect standard of review when it affirmed
the [Zoning Board’s] determination that Lots 97 and 99 are not lawfully
nonconforming lots pursuant to the 1973 subdivision plan and were rendered
undevelopable by the 1987 subdivision plan, where the 1987 subdivision plan does
not relate to and was never recorded against Lots 97 and 99?
2. Did the [trial] court err as a matter of law or abuse its discretion by affirming the
[Zoning Board’s] determination that [Owners] failed to establish entitlement to
variances from requirements of the Floodplain Ordinance where the [trial] court
improperly applied the variance standards imposed by the Zoning Ordinance and
where [Owners] satisfied all variance standards set forth in the Floodplain
Ordinance?
3. Did the [trial] court err as a matter of law or abuse its discretion by failing to
conclude that the zoning officer’s rejection of the septic permits usurped the
authority of the sewage enforcement officer and that septic permits must be issued
because [Owners] complied with all requirements of Act 537?
Owners Brief at 5.
15
In their first issue, Owners argue that the trial court erred in affirming
the Zoning Board’s determination that Lots 97 and 99 are not lawful, nonconforming
lots. The Zoning Board erred in finding that a note on the 1987 Plan effected a
restrictive covenant on the use and development of Lots 97-99. Lot 98 was not even
the subject of the Zoning Board proceeding. More problematic is the notion that an
asterisk on a development plan can create a restrictive covenant. Such covenants are
“not favored in the law” and must be “strictly construed;” further, they may not be
“extended by implication unless the parties clearly so understand and intend.”
Owners Brief at 22 (quoting Sandyford Park Civic Association v. Lunnemann, 152
A.2d 898, 900 (Pa. 1959)) (emphasis added). The 1987 Plan made no reference to
Lot 99 and, at most, a possible reference to Lot 97 because the asterisk was placed
in its approximate location. Simply, the 1987 Plan did not expressly state that Lot
97 or 99 was not to be developed for any reasonable use, and the 1987 Plan is not
cited in any of the deeds for Lots 95-99. Owners argue that the property rights
conferred by the deeds to Lots 95-99 “have to be adjudicated by the [trial] court in a
separate legal action.” Owners Brief at 22. That legal question is beyond the
jurisdiction of the Zoning Board.
Owners contend that Lot 97 remains a lawful, nonconforming lot
because its 1973 approval was not revoked by the 1982 resolution of the Township
Supervisors. As to Lot 99, the 1982 resolution merely required that future
development of Lot 99 comply with the 1977 SALDO. Finally, the Floodplain
Ordinance was not adopted until 1988.
Owners argue that the question of whether the note in the 1987 Plan
extinguished the vested development rights of Lots 97 and 99 created by the 1973
subdivision plan is a question of law subject to a de novo review. The trial court
16
applied an improper standard by deferring to the Zoning Board’s credibility
determinations on this question instead of conducting a de novo review of the legal
question.
In sum, Owners argue that both Lots 97 and 99 have retained a vested
development right that was created by the 1973 subdivision plan. That right was not
extinguished by the Township Supervisors’ 1982 resolution or the 1987 Plan.
In response, the Zoning Board reiterates its finding that the inset map
on the 1987 Plan placed Lots 97, 98, and 99 in a “Floodplain Preservation Area.”
Zoning Board Brief at 22 (citing R.R. 138a). The credited testimony of Bahnick
established that “off-site improvements” such as stormwater controls or preservation
areas did not have to be shown on the inset map. Zoning Board Brief at 23 (quoting
N.T., 1/25/2022, at 40-44; R.R. 460a-64a).
The Township’s arguments echo those of the Zoning Board. The
Township acknowledges Lots 97-99 are “lots” that “may be used, developed or built
upon” under the Zoning Ordinance. Township Brief at 12. However, these lots
cannot be developed for residential use under the Floodplain Ordinance. The
Township argues that Lots 97-99 were rendered nondevelopable by the 1987 Plan.
Restrictions in a “recorded subdivision plan are enforceable even if these
[restrictions] are not set forth in the deeds” to the affected lots. Id. (citing
Doylestown Township v. Teeling, 635 A.2d 657, 660 (Pa. Cmwlth. 1993)).
We begin with a review of the Zoning Ordinance provisions relevant to
a “Nonconforming Lot,” which is defined in Section 202 as follows:
A lot which does not conform with the minimum lot width or
area dimensions specified for the district where such lot is
situated, but was lawfully in existence prior to the effective date
of this Ordinance or is legally established through the granting
of a variance by the Zoning Hearing Board.
17
ZONING ORDINANCE, §202. Section 1409.C.2 of the Zoning Ordinance governs the
development of “Nonconforming Lots” and states, in pertinent part, as follows:
2. Nonconforming Lots.
a. Permitted structures and uses may be constructed or
expanded on a non[]conforming lot of record only in
compliance with the following requirements:
(i) Lawfully Existing. A use may only be developed
on a non[]conforming lot if it is a lot of record that
lawfully existed prior to the adoption of this
Ordinance or an applicable subsequent
amendment.
(ii) Setbacks. Yard setbacks and other requirements
of this Ordinance shall be complied with unless a
variance is granted by the Zoning Hearing Board, or
unless the Zoning Hearing Board allows
construction under the following waiver:
....
(iii) Only one principal use and its customary
accessory uses that are permitted by right in that
District may be developed on a nonconforming lot.
(iv) In a LDR District, as an absolute minimum, in
no case shall a variance be granted for the
development of a principal building on a
nonconforming lot with minimum lot area of less
than 5,000 square feet or a minimum lot width at the
minimum building setback line of less than 45 feet.
(v) For any variance or special exception request
under this Section, the Zoning Hearing Board shall
consider if any reasonable use could be made of the
property other than a proposed use that would less
significantly adversely affect the established
character of an existing residential neighborhood.
(vi) The nonconformity shall not have been self-
created.
18
(vii) Contiguous nonconforming lots under
common or closely related ownership shall be
considered one lot.
(viii) Any lot proposed to use an on-lot septic system
shall meet all [Department of Environmental
Protection (DEP)] requirements, plus shall have
sufficient open area that would also meet D.E.P
requirements for a second drainfield, for use in case
the first drainfield fails.
ZONING ORDINANCE, §1409.C.2 (emphasis added).
In its opinion, the trial court used the terms “nonconforming lot” and
“nonconforming use” interchangeably. However, they are distinct legal concepts.
As explained in Loughran v. Valley View Developers, Inc., 145 A.3d 815, 821 (Pa.
Cmwlth. 2016), a nonconforming lot is one that “has been rendered undersized by
the passage of an ordinance requiring a larger lot size than what was previously
required for the permitted use in the zoning district where the lots are located; in
such instances, the undersized lot becomes a ‘nonconforming lot.’”9
Here, the Zoning Ordinance defines a “nonconforming lot” as one that
(1) fails to conform to area or dimension requirements, and (2) was lawfully in
existence prior to the effective date of the Zoning Ordinance. ZONING ORDINANCE,
§202. Lots 97 and 99 are each less than a half-acre in size and were created by the
1973 subdivision plan and lawfully in existence before the Zoning Ordinance set the
minimum lot size for the LDR District at one acre. Lots 97 and 99 are
nonconforming lots and can be developed, provided they meet the requirements of
Section 1409.C.2 of the Zoning Ordinance.
9
In contrast, a nonconforming use is “a use predating the subsequent prohibitory zoning
restriction.” Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204, 1210 (Pa.
Cmwlth. 2009).
19
The Zoning Board held that the Township Supervisors’ 1982 resolution
and the 1987 Plan prohibited any development of Lots 97 and 99. Thus, it never
addressed whether they could be put to a reasonable use in accordance with Section
1409.C.2 of the Zoning Ordinance. For several reasons, we disagree with the Zoning
Board’s conclusion that the 1982 resolution and the 1987 Plan rendered Lots 97 and
99 nondevelopable.
The 1982 resolution revoked “[t]he final subdivision approval” of 1973
for Lot 99 in light of the then-recently adopted SALDO. R.R. 143a. The only
consequence of the revocation was to require the submission of “subdivision and
land development plans and supporting documents and material consistent with” the
SALDO before Lot 99 could be developed. Id. Lot 99 remained a valid lot. The
1982 resolution did not revoke the 1973 subdivision plan as to Lot 97; to the
contrary, it stated that “substantial development has occurred” in “Phase I consisting
of [L]ots . . . 97.” R.R. 142a. Thus, Lot 97 also remained a valid lot.
Nor did the 1987 Plan render Lots 97 and 99 undevelopable. This
determination of the Zoning Board turned entirely on the inset map that placed an
asterisk in the approximate location of Lot 97 with a notation that this “land” would
be merged or sold to a government or conservancy. R.R. 138a. The note does not
specify this “land” by lot number or by a metes and bounds description. In finding
that the “land” included the entirety of Lots 97, 98 and 99, the Zoning Board read
words into the 1987 Plan that do not appear. Further, the word “lot,” as used in the
note, cannot signify three lots. Likewise, it cannot be determined whether the
“adjoining lot” is Lot 96 or Lot 98. R.R. 138a.
Bahnick’s testimony, which was credited, did not overcome these
omissions in the 1987 Plan. Bahnick testified that “[o]ff-site improvements” such
20
as stormwater controls would not be shown on the affected lots on the development
plan. N.T., 1/25/2022, at 40; R.R. 460a. This testimony is belied by the 1987 Plan
document, which shows the “associated off[-]site storm water control facility” on
the inset map and the lots affected. R.R. 138a. Further, the 1987 Plan expressly
states that “Lot Numbers 91, 92 and 93 are not suitable for on-lot sewage disposal
systems at this time.” R.R. 138a. It contains a similar statement for Lot Numbers
94, 95, and 96. Id. Bahnick did not explain why similar clarity was not used in the
1987 Plan if the intention was to place Lots 97-99 into preservation.
A restrictive covenant must be “strictly construed” and is “not to be
extended by implication unless the parties clearly so understand and intend.”
Sandyford Park Civic Association, 152 A.2d at 900. Simply, KBK Associates’ intent
for a “Floodplain Preservation Area” in the 1987 Plan cannot be determined. First,
the note expresses an inchoate preservation intent, at best, because it recites different
possibilities that might take place in the future. Second, the “land” placed in that
area was not identified by lot number or by any meaningful description. Finally,
Bahnick could not testify to KBK Associates’ intent because he did not prepare the
1987 Plan.
The 1987 Plan is entitled “Ridge[ V]iew Estates East – Phase II.” R.R.
138a. It specifies the dimensions, setback lines and square footages for Lots 15-19,
26-31, 35-43, 51, and 91-96, which are expressly shown and numbered. Phase II
did not include Lots 97-99. No future purchaser of Lot 97 or 99 would have any
reason to consider the 1987 Plan because it is a plan that addressed other lots in the
development. If a future purchaser of Lots 97 or 99 did get out a magnifying glass
to examine the tiny inset map on the 1987 Plan, that examination, for the reasons set
21
forth above, would lead to the conclusion that there was no restrictive covenant on
the use of either Lot 97 or Lot 99.
The interpretation of the 1987 Plan is a question of law. The Zoning
Board used Bahnick’s opinion to conclude that the 1987 Plan set aside Lots 97 and
99 for preservation. Leaving aside the inconsistencies and omissions in Bahnick’s
testimony, his opinion is not a substitute for legal analysis of the language in the
operative documents. The trial court erred in upholding the Zoning Board without
doing a legal analysis of the scope and meaning of the language of the 1987 Plan.
We hold that Lots 97 and 99, by definition, are nonconforming lots
under Section 202 of the Zoning Ordinance. ZONING ORDINANCE, §202. Because
the Zoning Board held that Lots 97 and 99 had been set aside for preservation, it did
not address whether Lots 97 and 99 have met the requirements of Section 1409.C.2
of the Zoning Ordinance and, thus, are eligible for a reasonable use. Therefore, we
remand the matter to the trial court to consider whether Lots 97 and 99 satisfy the
requirements of Section 1409.C.2 of the Zoning Ordinance.
II. Variance from the Floodplain Ordinance
Owners argue, next, that the Zoning Board erred in denying their
application for variances to construct single-family residences and accessory on-site
septic systems on Lots 97 and 99. Owners contend that the “dimensional constraints
on these lots” have created an unnecessary hardship that makes compliance with the
Floodplain Ordinance impossible and prevents any reasonable use of Lots 97 and 99
absent a variance. Owners Brief at 29. Owners further contend that they have
satisfied the substantive standards for a variance set forth in Section 7.02 of the
Floodplain Ordinance. FLOODPLAIN ORDINANCE, §7.02. Their expert witness
demonstrated that two viable drain fields had been identified for both lots and meet
22
all state regulations. They also testified that the proposed development would not
present a risk to public health, safety, and welfare and would not increase the base
flood elevation. Owners contend that the trial court erred in applying the variance
standards in Section 111 of the Zoning Ordinance to their applications, which are
irrelevant to this case, which concerned a variance from the Floodplain Ordinance,
not the Zoning Ordinance.
Owners contend that Pooler’s knowledge of “the dimensional
nonconformities” of Lots 97 and 99 at the time of his purchase did not establish that
the hardship was self-created. Owners Brief at 31. The right to develop such a lot
“runs with the land and vests in subsequent buyers.” Id. (citing N. Pugliese, Inc. v.
Palmer Township Zoning Hearing Board, 592 A.2d 118, 121 (Pa. Cmwlth. 1991)
(Pugliese)). “[I]t makes no difference whether the application for the variance is
sought by the original owner or a successor in title.” Id. In Pugliese, this Court held
that it was error for the zoning board to hold that a purchaser of a property created
the hardship because he bought the lot with knowledge that it was undersized.
In response, the Zoning Board argues that it properly denied the
variances because it found that the proposed development on Lots 97 and 99 would
negatively affect the safety and welfare of the residents of the Township. The
Floodplain Ordinance prohibits single-family dwellings on slabs and above-ground
septic systems on land located in the AE Zone. Pooler’s failure to do due diligence
into these restrictions is a hardship of his own making, as the Zoning Board properly
found.
The Township raises similar arguments as those raised by the Zoning
Board.
23
We begin with a review of the pertinent Floodplain Ordinance
provisions: Article 2 (Sections 2.02 and 2.04), Article 4 (Sections 4.01, 4.01.F, and
4.02.B), and Article 8, from which Owners sought variances.
The Floodplain Ordinance requires all development to satisfy its
provisions. It states:
A Permit shall be required before any construction or
development is undertaken within any area of the Lower
Nazareth Township. Construction and development activities
subject to permit requirements in the Floodplain District
regardless of value include, but are not limited to: construction,
reconstruction, placement, replacement, expansion, extension,
repair, or other improvement of uses or structures; placement of
manufactured homes; mining; dredging; filling; grading;
logging; paving; excavation; drilling operations.
FLOODPLAIN ORDINANCE, §2.02. Regarding the permit application procedures and
requirements, the Floodplain Ordinance states as follows:
A. Application for such a Permit shall be made, in writing, to the
Floodplain Administrator on forms supplied by Lower Nazareth
Township. Such application shall contain the following:
1. Name and address of applicant.
2. Name and address of owner of land on which proposed
construction is to occur.
3. Name and address of contractor.
4. Site location including address.
5. Listing of other permits required.
6. Brief description of proposed work and estimated cost,
including a breakout of flood-related cost and the market
value of the building before the flood damage occurred
where appropriate.
7. A plan of the site showing the exact size and location of
the proposed construction as well as any existing buildings
or structures.
24
8. State whether or not the structure includes a basement.
B. If any proposed construction or development is located
entirely or partially within any identified floodplain area,
applicants for Permits shall provide all the necessary information
in sufficient detail and clarity to enable the Floodplain
Administrator to determine that:
1. all such proposals are consistent with the need to
minimize flood damage and conform with the
requirements of this and all other applicable codes and
ordinances;
2. all utilities and facilities, such as sewer, gas, electrical
and water systems are located and constructed to minimize
or eliminate flood damage;
3. adequate drainage is provided so as to reduce exposure
to flood hazards;
4. structures will be anchored to prevent floatation,
collapse, or lateral movement;
5. building materials are flood-resistant;
6. appropriate practices that minimize flood damage have
been used; and
7. electrical, heating, ventilation, plumbing, air
conditioning equipment, and other service facilities have
been designed and located to prevent water entry or
accumulation.
FLOODPLAIN ORDINANCE, §2.04.A-.B.
The Floodplain Ordinance limits uses in the Floodplain District as
follows:
Section 4.01 Uses Permitted in the Floodplain District
The following uses and others are permitted in the Floodplain
District, provided they are allowed in the underlying zoning
district and provided they do not involve any grading or filling
which would cause any increase in flood elevations or frequency,
and provided they comply with other sections of this Ordinance:
....
25
F. Front, side, and rear yards and required lot area in any
zoning district, provided such yards are not to be used for
on-site sewage disposal systems and further provided that
no land in the Floodplain District shall qualify in
computing the minimum district area where specified in
the Lower Nazareth Township Zoning Ordinance.
....
H. Sanitary collection mains and storm sewers with the
approval of the Township Engineer and the Board of
Supervisors. These systems shall be designed to minimize
or eliminate infiltration of flood waters into the systems
and discharges from the systems into the flood waters.
I. Floodproofing of lawfully existing non[]conforming
structures and lawfully existing non[]conforming uses
within structures.
FLOODPLAIN ORDINANCE, §4.01.F, .H-.I (emphasis added). The Floodplain
Ordinance further provides that “[a]ll structures and accessory structures not
otherwise specifically permitted under Section 4.01 or allowed as a Special Permit
Use under Section 4.03[10]” are prohibited uses in the floodplain district.
FLOODPLAIN ORDINANCE, §4.02.B (emphasis added).
Finally, Article 8 of the Floodplain Ordinance, titled “technical
provisions,” provides, in pertinent part:
Section 8.03 Design and Construction Standards:
The following minimum standards shall apply for all
construction and development proposed within any identified
floodplain area:
....
10
Uses in a floodplain district that require a special permit from the Zoning Board include parking
lot, private roads and driveways, active recreational use, grading of lands, sewage treatment plant,
sealed public water supply wells, stormwater management, repair or expansion of riparian buffers,
public and private dams, water monitoring devices, public utility facilities, fishing hatcheries, and
other uses similar to the above. FLOODPLAIN ORDINANCE, §4.03.
26
C. Water and Sanitary Sewer Facilities and Systems
1. All new or replacement water supply and sanitary sewer
facilities and systems shall be located, designed and
constructed to minimize or eliminate flood damages and
the infiltration of flood waters.
2. Sanitary sewer facilities and systems shall be designed
to prevent the discharge of untreated sewage into flood
waters.
3. No part of any on-site sewage system shall be located
within any identified floodplain area except in strict
compliance with all State and local regulations for such
systems. If any such system is permitted, it shall be located
so as to avoid impairment to it, or contamination from it,
during a flood.
....
FLOODPLAIN ORDINANCE, §8.03 (emphasis added).
In support of their request for variances from the Floodplain Ordinance,
Owners explain that Lots 97 and 99 cannot be developed for single-family dwelling
with on-site septic systems in strict conformity with the provisions of the Floodplain
Ordinance because of “dimensional constraints.”11 Owners Brief at 29. On that
basis, Owners seek a use variance from the Floodplain Ordinance.
The Floodplain Ordinance allows land in a floodplain district to be used
for “[f]ront, side, and rear yards and required lot area in any zoning district, provided
such yards are not to be used for on-site sewage disposal systems[.]” FLOODPLAIN
ORDINANCE, §4.01.F (emphasis added). Uses that are not permitted under Section
4.01 or allowed by a special permit under Section 4.03 are prohibited in the
11
“A dimensional variance involves a request to adjust zoning regulations to use the property in a
manner consistent with regulations, whereas a use variance involves a request to use property in a
manner that is wholly outside zoning regulations.” Tri-County Landfill, Inc. v. Pine Township
Zoning Hearing Board, 83 A.3d 488, 520 (Pa. Cmwlth. 2014).
27
floodplain district. Id., §4.02.B. Read together, a single-family dwelling and on-
site septic system cannot be built on a floodplain. Only “[f]ront, side and rear yards”
can be located within the floodplain district. Id., §4.01.F.
All of Lot 99 is located within the floodplain district. The record shows
that Lot 99’s “front, sides and rear yards are entirely within the floodplain[;] [and
t]he proposed septic systems are within the setbacks.” O.R., Item 6 at 2b (Zoning
Officer’s File (ZA2021-04), March 9, 2021, letter denying application for single-
family dwelling). Therefore, Owners cannot construct a single-family dwelling or
an on-site septic system on Lot 99 absent a variance from Section 4.01F of the
Floodplain Ordinance.
As to Lot 97, the proposed septic system is located “entirely within the
floodplain;” “[t]he rear yard is entirely in the floodplain[;] and a majority of the side
yards are within the floodplain[.]” O.R., Item 6 at 3b (Zoning Officer’s File
(ZA2021-05), March 9, 2021, letter denying application for single-family dwelling).
The proposed single-family house is not located in the AE Zone. However, Owners
cannot construct the accessory on-site septic systems on Lot 97 absent variance relief
from Section 4.01.F of the Floodplain Ordinance.
Relevant to a variance, the Floodplain Ordinance states, in pertinent
part, as follows:
A. If compliance with any of the requirements of this Ordinance
would result in an exceptional hardship to a prospective builder,
developer or landowner, the Zoning Hearing Board may, upon
request, grant relief from the strict application of the
requirements.
B. Variance applications shall be submitted to the Zoning
Hearing Board pursuant to the provisions of Lower Nazareth
Township Zoning Ordinance Article 1 and the supplementary
procedures and conditions defined in Section 7.02 of this
ordinance. The Zoning Hearing Board shall solicit testimony
28
from the Township Engineer, or other qualified and licensed
professional engineer, to review and comment on technical
matters pertaining to this Ordinance.
FLOODPLAIN ORDINANCE, §7.01 (emphasis added).
Article 1 of the Zoning Ordinance, entitled “General Provisions and
Administration,” addresses matters ranging from ordinance interpretation to permit
procedures. ZONING ORDINANCE, §§105, 108. Article 1 creates the Zoning Board,
identifies its function, and sets forth the rules on form and content for appeals and
applications submitted to the Zoning Board, and hearing time limits. Id., §§111.A,
.E-.G. Article 1 obligates the Zoning Board, inter alia, to “hear requests for
variances filed with the Board in writing by any landowner (or any tenant with the
permission of such landowner).” Id., §111.E.3(a).12
12
The Zoning Ordinance’s standards for a zoning ordinance variance came from Section 910.2 of
the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as
amended, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2. Section
111.E.3(b) of the Zoning Ordinance states:
b. The Board may grant a variance only within the limitations of State law. The
[MPC] as amended provides that all of the following findings must be made, where
relevant:
(i) 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
this Ordinance in the neighborhood or district in which the property is
located; and
(ii) 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 a variance therefore [is] necessary
to enable the reasonable use of the property; and
(iii) Such unnecessary hardship has not been created by the applicant; and
(iv) The variance, if authorized, will not alter the essential character of the
neighborhood or district in which the property is located, nor substantially
29
The Floodplain Ordinance addresses variances as follows:
Requests for variances shall be considered by the Zoning
Hearing Board in accordance with the procedures contained in
Lower Nazareth Township Zoning Ordinance Article 1 and the
following:
A. No variance shall be granted within any Identified
Floodplain Area that would cause any increase in [the
Base Flood Elevation, or] BFE. In a Zone A Area, BFEs
are determined using the methodology in Section 3.03.C.
….
D. If granted, a variance shall involve only the least
modification necessary to provide relief.
E. In granting any variance, Lower Nazareth Township
shall attach whatever reasonable conditions and
safeguards it considers necessary in order to protect the
public health, safety, and welfare, and to achieve the
objectives of this Ordinance.
F. In reviewing any request for a variance, Lower Nazareth
Township shall consider, at a minimum, the following:
1. That there is good and sufficient cause.
2. That failure to grant the variance would result in
exceptional hardship to the applicant.
3. That the granting of the variance will
a. neither result in an unacceptable or
prohibited increase in flood elevations,
additional threats to public safety, or
extraordinary public expense,
or permanently impair the appropriate use or development of adjacent
property, nor be detrimental to the public welfare; and
(v) 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.
ZONING ORDINANCE §111.E.3(b) (emphasis added).
30
b. nor create nuisances, cause fraud on, or
victimize the public, or conflict with any
other applicable state or local ordinances and
regulations.
....
Notwithstanding any of the above, however, all structures shall
be designed and constructed so as to have the capability of
resisting the base flood.
FLOODPLAIN ORDINANCE, §7.02 (emphasis added).
In sum, the Floodplain Ordinance authorizes a variance where strict
compliance “would result in an “exceptional hardship[.]” FLOODPLAIN ORDINANCE,
§7.01.A. Such variance applications “shall be submitted” to the Zoning Board in
writing. Id., §7.01.B; ZONING ORDINANCE, §111.E.3(a). However, the Floodplain
Ordinance specifies that it is only the “procedures” in Article 1 of the Zoning
Ordinance that apply to floodplain variances. FLOODPLAIN ORDINANCE, §7.02. The
substantive variance standards in the Floodplain Ordinance, not the substantive
variance standards in the Zoning Ordinance, applied to Owners’ variance
applications. ZONING ORDINANCE, §111.E.3(b). Notably, the standard for a
floodplain variance is “exceptional hardship” not “unnecessary hardship.” Cf,
FLOODPLAIN ORDINANCE, §7.01.A; ZONING ORDINANCE, §111.E.3(b)(i).
In denying Owners’ variance applications from the Floodplain
Ordinance, the Zoning Board discredited Lehmann’s and Madaras’ testimony that
the proposed development would have no effect on flooding or public safety.
Indeed, all of Owners’ witnesses were discredited, and all the testimony of residents
and Township employees offered in opposition to the variance was credited. Based
on its credibility determinations, the Zoning Board concluded that Owners “failed to
meet [their] burden of proof for the issuance of the variances requested for the
subject lots.” Zoning Board Decision at 35, Findings of Fact and Conclusions of
31
Law No. 413. In reaching this conclusion, the Zoning Board did not cite the
applicable law or do any legal analysis.
The trial court affirmed the Zoning Board. In doing so, it cited and
applied the substantive variance standards in Article 1 of the Zoning Ordinance. The
trial court erred. To be sure, “the credibility of witnesses and the weight to be
accorded to witness testimony are matters for the Zoning Board in its capacity as
fact[]finder.” Hawk v. City of Pittsburgh Zoning Board of Adjustment, 38 A.3d
1061, 1065 (Pa. Cmwlth. 2012). However, the Zoning Board’s decision must
conform to the law. The trial court erred in using the substantive variance standards
in the Zoning Ordinance rather than those set forth in Sections 7.01 and 7.02 of the
Floodplain Ordinance to review the Zoning Board’s decision. This error requires a
reversal.
III. Septic Permits
Finally, Owners argue that the trial court and Zoning Board erred in not
addressing their argument that the zoning officer improperly usurped the authority
of the Township’s sewage enforcement officer by rejecting the septic permits based
on requirements in the Floodplain Ordinance. However, the record shows that the
zoning officer returned the incomplete sewer permit application for Lot 99, which
failed to identify the primary use of that lot. A review of the record also shows that
Noll, the sewage enforcement officer, eventually reviewed the sewage permit
application and prepared a comment letter. Noll also testified that the applications
did not satisfy the Township sewage ordinance because there is no sewage planning
module in place for the subject lots.
A review of the septic permits under Act 537 and the sewage ordinance
is premature in light of the fact that Owners cannot develop Lots 97 and 99 for
32
residential use absent a use variance from the Floodplain Ordinance. The trial
court’s failure to address Owners’ argument on the zoning officer’s improper review
of the septic permits was a harmless error.
Conclusion
Lots 97 and 99 are nonconforming lots under Section 202 of the Zoning
Ordinance. ZONING ORDINANCE, §202. The 1987 Plan purported to create a
“Floodplain Preservation Area,” but it did not state that Lots 97 and 99, in whole or
in part, were placed therein. R.R. 138a. We reverse the trial court’s affirmance of
the Zoning Board’s holding that Lots 97 and 99 are not developable and remand the
matter to the trial court to address whether Lots 97 and 99, as nonconforming lots,
meet the requirements of Section 1409.C.2 of the Zoning Ordinance and, thus, are
eligible for a reasonable use. The trial court’s findings on this question shall be
“based on the record below as supplemented by the additional evidence, if any.”
Section 1005-A of the MPC, 53 P.S. §11005-A.13
13
Added by the Act of December 21, 1988, P.L. 1329. Section 1005-A states:
If, upon motion, it is shown that proper consideration of the land use appeal
requires the presentation of additional evidence, a judge of the court may hold a
hearing to receive additional evidence, may remand the case to the body, agency
or officer whose decision or order has been brought up for review, or may refer the
case to a referee to receive additional evidence, provided that appeals brought
before the court pursuant to section 916.1 shall not be remanded for further hearings
before any body, agency or officer of the municipality. If the record below includes
findings of fact made by the governing body, board or agency whose decision or
action is brought up for review and the court does not take additional evidence or
appoint a referee to take additional evidence, the findings of the governing body,
board or agency shall not be disturbed by the court if supported by substantial
evidence. If the record does not include findings of fact or if additional evidence is
taken by the court or by a referee, the court shall make its own findings of fact
based on the record below as supplemented by the additional evidence, if any.
53 P.S. §11005-A (emphasis added).
33
The 2014 Floodplain Ordinance placed the majority of Lot 97 and all
of Lot 99 in the AE Zone. Owners sought variances to construct a single-family
residence and accessory on-site septic system on each lot. The procedures set forth
in Article 1 of the Zoning Ordinance applied to Owners’ variance applications, but
the substantive standards in Article 1 did not. The trial court erred in applying the
substantive standards for a zoning variance to Owners’ applications for a variance
from the Floodplain Ordinance. For this reason, we reverse the trial court’s
affirmance of the Zoning Board’s denial of the variances and remand the matter to
the trial court to consider Owners’ floodplain variances under the substantive
standards set forth in Sections 7.01 and 7.02 of the Floodplain Ordinance.
For these reasons, we reverse the trial court’s May 13, 2024, order and
remand the matter for further proceedings consistent with this opinion.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
People’s Property, LLC and :
Annie Marie, LLC, :
Appellants :
:
v. : No. 701 C.D. 2024
:
Lower Nazareth Township Zoning :
Hearing Board and Lower Nazareth :
Township :
ORDER
AND NOW, this 27th day of June, 2025, the order of the Court of
Common Pleas of Northampton County, dated May 13, 2024, in the above-captioned
matter, is REVERSED. The matter is REMANDED to the Court of Common Pleas
of Northampton County for further proceedings consistent with the foregoing
opinion.
Jurisdiction relinquished.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita