T.M. Dunn and L.N. Dunn v. Middletown Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and Lori N. Dunn, :

Appellants :

:

v. : No. 1436 C.D. 2015

: Argued: May 13, 2016

Middletown Township Zoning :

Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: July 11, 2016

In this zoning appeal, we examine whether a zoning hearing board can

grant lot width and density variances without any proof of hardship. More

specifically, Theodore M. Dunn and Lori N. Dunn (Objectors) ask whether the

Court of Common Pleas of Bucks County (trial court) erred in affirming a decision

of the Middletown Township Zoning Hearing Board (ZHB) that granted Revonah

Construction Company’s (Applicant) requests for three variances from the

Middletown Township Zoning Ordinance (zoning ordinance). Because the ZHB

erred in granting variance relief based on the facts presented, we reverse.

I. Background

Applicant owns a 79,954 square foot parcel located at 1755 Fulling

Mill Road in Langhorne, Middletown Township (Township), Pennsylvania

(property). The property is improved with a vacant, ranch style, single-family

detached home with an access walkway and driveway. Objectors own an adjacent

property at 1737 Fulling Mill Road. Both properties lie within an RA-2 Residence

Agricultural Zoning District.

Applicant proposes to demolish the vacant home on the property and

subdivide the property into three lots. Lot 1 would be 30,008 square feet and

accommodate a single-family home. Lot 2 would be 30,152 square feet and

accommodate an additional single-family home. Lot 3 would be 19,794 square

feet; Applicant proposes to merge this undeveloped lot with a contiguous property,

which is already improved with a single-family home.

In August 2014, Applicant filed an application with the ZHB seeking

three variances from Section 500-503 of the zoning ordinance. In particular,

Applicant sought two variances from Section 500-503(B) of the zoning ordinance,

which requires a minimum lot width of 125 feet, to allow a lot width of 106.73 feet

on Lot 1 and a lot width of 107.24 feet on Lot 2. Applicant also sought a variance

from Section 500-503(C) of the zoning ordinance to allow a density of 1.45

dwelling units per acre rather than the required maximum 1.2 dwelling units per

acre.

The ZHB held a hearing on Applicant’s variance requests. William

Hess, Applicant’s President (Applicant’s President), testified the homes Applicant

proposes to construct on Lots 1 and 2 would be “high-end” single-family homes

marketed at approximately $630,000. ZHB Dec., 10/13/14, Finding of Fact No. 8.

Applicant’s President testified the house currently located on the property is in

very poor condition.

2

Heath Dumack, who the ZHB qualified as a civil engineering expert

(Applicant’s Engineer), testified the property is approximately 212 feet wide and

410 feet deep. Applicant’s Engineer testified Lots 1 and 2 would meet all of the

dimensional requirements for the RA-2 zoning district except the minimum lot

width and maximum lot density requirements. Applicant’s Engineer testified there

was no adjoining property for sale that would allow Applicant to meet the

minimum width requirement and the width of the proposed lots would be deficient

by approximately 15 percent. Applicant’s Engineer testified Applicant would

comply with local storm water runoff regulations, and Applicant would plant

vegetation on the sides of the proposed subdivided lots as a buffer between

adjoining properties.

Nine neighbors testified in opposition to Applicant’s variance

requests. These witnesses testified Applicant could make use of the existing home

on the property without any variance relief. They also expressed concern about

storm water runoff. These witnesses also testified the proposed two-story homes

on Lots 1 and 2 would disrupt the character of the neighborhood, which consists of

one-story ranch homes. They also testified the proposed homes would devalue

their properties.

Jim Schurr, a Township resident, testified he is familiar with

Applicant and its President. He testified Applicant’s proposed homes would

enhance the neighborhood. Schurr also testified the existing home on the property

is the least aesthetically attractive house on Fulling Mill Road.

3

Based on the evidence presented, the ZHB made the following

conclusions of law:

1. The [property] has been developed and used as is permitted

by right in the RA-2 [district].

2. The proposed subdivision creates two building lots that meet

all of the dimensional requirements of the [zoning] [o]rdinance

with the exception of the lot width at building set back line,

which is required to be 125 feet per [zoning] [o]rdinance §500-

503.B.

3. As the law requires that conflicts within [z]oning

[o]rdinances be resolved in favor of the property owner, the

maximum density requirement of 1.2 dwelling units per acre,

contained at §500-503.C, in this instance, would require a

building lot greater in size than the minimum lot area

requirement of 30,000 square feet.

4. Accordingly, the [ZHB] concludes that a variance from

§500-503.C is necessary and warranted.

5. This is not an application for a use variance, rather only one

for a minor deviation from one of the dimensional requirements

of the [zoning] [o]rdinance.

6. Based upon all of the competent and credible evidence

received by the [ZHB], it concludes that the construction of the

two homes proposed will enhance both the [property]

specifically and the neighborhood generally.

7. Any potential stormwater impacts will be mitigated by

compliance with the stormwater management requirements of

[the] Township and other appropriate governmental agencies.

8. There was no evidence presented by the opponents to the

application that the construction of these two homes would

negatively impact property values. Rather, only supposition

and conjecture were offered by the opponents in this regard.

4

9. The subdivision of the [p]roperty as proposed, and the

creation of two new single-family residences, as proposed, will

have no negative impact upon surrounding properties or uses.

10. Although the opponents made reference to a 1989 [ZHB]

decision which denied a subdivision of the [property] into two

lots, that decision was based upon the creation of a flag lot

which only had a 25 foot width at building set back line. This

application resolves that major variance from the [zoning]

[o]rdinance and satisfies the [ZHB] that [Applicant] is seeking

the minimum variance necessary to afford it relief.

11. Accordingly, the Members of the [ZHB], determined,

unanimously, to grant [Applicant’s] request[s] for relief as is set

forth hereafter:

ZHB Dec., Concls. of Law Nos. 1-11.

Objectors appealed to the trial court. Without taking additional

evidence, the trial court affirmed. This appeal followed.

II. Issues

On appeal,1 Objectors argue the trial court erred in determining the

ZHB did not err or abuse its discretion in granting Applicant three variances to

subdivide the property, raze an existing home on the property and construct two

new homes on the property. They further assert the de minimis variance doctrine,

cited by the trial court, but not relied on by the ZHB, does not justify the ZHB’s

grant of Applicant’s three variance requests.

1

Because the parties presented no additional evidence after the ZHB’s decision, our

review is limited to determining whether the ZHB committed an abuse of discretion or an error

of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).

5

III. Discussion

A. Contentions

Objectors first argue the ZHB erred in granting Applicant’s variance

requests where Applicant did not establish unnecessary hardship would result if the

ZHB denied the variances. Reviewing the standards for the grant of a variance,

and applying those standards to the facts presented here, Objectors assert, makes it

patently clear that the ZHB erred in granting the variances. To that end, the

property has been and can continue to be utilized in conformity with the zoning

ordinance, and Applicant did not even attempt to argue any variances were

necessary to enable reasonable use of the property.

Further, Objectors contend Applicant cannot argue economic hardship

exists here. Indeed, Applicant purchased the property intending to subdivide it for

its economic gain. Objectors also maintain that, assuming, without conceding, that

denial the requested relief would cause Applicant economic hardship, it is well-

settled that economic hardship alone is insufficient to justify the grant of a

variance. See, e.g., Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh,

721 A.2d 43 (Pa. 1998). Here, Applicant was aware of the property’s zoning

classification and the existing, conforming use of the property; his desire to

subdivide the property is driven solely by economics. Objectors argue the ZHB

here completely disregarded the provisions of the Pennsylvania Municipalities

Planning Code2 (MPC), Hertzberg and the remaining body of Pennsylvania law

that make it clear that Applicant was in no way entitled to the three variances

sought.

2

Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101–11202.

6

Objectors further maintain that Cardamone v. Whitpain Township

Zoning Hearing Board, 771 A.2d 103 (Pa. Cmwlth. 2001), in which a landowner

sought a dimensional variance in connection with his proposal to subdivide a

property into two lots, also compels reversal of the ZHB’s decision.

In addition, Objectors note the ZHB’s Conclusion of Law No. 9

states: “The subdivision of the [property] as proposed, and the creation of two

single-family residences, as proposed, will have no negative impact upon

surrounding properties or uses.” Objectors argue the record does not support this

determination. Rather, the overwhelming weight of the evidence regarding the

proposed development’s impact on surrounding properties and landowners

indicated the proposal would adversely impact the surrounding neighborhood.

Objectors contend the ZHB abused its discretion in reaching a contrary

determination.

Objectors also maintain the ZHB’s Conclusion of Law No. 5 is both

an abuse of discretion and an error of law. It states: “5. This is not an application

for a use variance, rather only one for a minor deviation from one of the

dimensional requirements of the [zoning] [o]rdinance.” On this point, Objectors

assert Leonard v. Zoning Hearing Board of City of Bethlehem, 583 A.2d 11 (Pa.

Cmwlth. 1990) controls. There, this Court declined “to establish … that a

subdivision creating a 6% plus deviation from the ordinance lot size minimum may

be permitted solely on the basis that such deviation is de minimis.” Id. at 13.

Objectors argue Applicant’s requested variances are not minor deviations for

purposes of the de minimis doctrine because they constitute a 15% deviation from

7

the minimum lot width requirement, see Section 500-503(B) of the zoning

ordinance, and a 17% deviation from the maximum density requirement, see

Section 500-503(C) of the zoning ordinance. Objectors contend, for the ZHB to

conclude a 15% to 17% deficiency from a dimensional requirement is a “minor

deviation” disregards settled law and is, therefore, an abuse of discretion.

Objectors maintain Applicant merely seeks to profit on its purchase of

a two-acre property, which is already improved with a single-family home.

Objectors argue Applicant needs to subdivide the property in order to maximize

profit, and unfortunately for Applicant, the property is not wide enough to

accommodate two homes instead of one. Objectors also note a prior owner of the

property unsuccessfully attempted to do precisely what Applicant proposes here,

subdivide the property, and the ZHB correctly rejected that request as the owner

did not prove any hardship that would justify the grant of a lot width variance, the

same type of variance Applicant now seeks.

In addition, Objectors argue the de minimis variance doctrine does not

justify the dimensional variances granted here. They maintain the trial court

conceded the de minimis doctrine is a narrow exception to the heavy burden of

proof involved in seeking a variance. Objectors assert Leonard and other appellate

cases hold the doctrine is to be applied in rare instances where only a minor

deviation from a zoning ordinance is sought. As argued above, Objectors contend,

for the ZHB to conclude a 15% to 17% deficiency from a zoning ordinance’s

minimum dimensional requirement is “minor” where, as here, the ZHB seems

focused on the profit to be made by the developer if it is granted relief from the

8

zoning ordinance’s requirements, is a clear abuse of discretion as well as a

disregard of settled law regarding de minimis variances.

The ZHB3 and Applicant counter that the credited evidence

establishes Applicant’s zoning plan would preserve the essential character of the

RA-2 district and would not be detrimental to the public welfare. They argue the

ZHB credited Applicant’s Engineer’s testimony that Applicant would plant

vegetation buffers around the property and would comply with local storm water

runoff requirements. The ZHB and Applicant point out the ZHB did not credit the

objecting landowners’ testimony that Applicant’s proposed development would

decrease property values or otherwise interfere with surrounding properties. The

ZHB and Applicant argue the ZHB credited Applicant’s Engineer’s testimony that

Applicant’s zoning plan would benefit neighboring properties by allowing them to

connect to water and sewer utilities. They also maintain the ZHB credited Schurr’s

testimony that Applicant’s proposed homes would enhance the aesthetics of the

neighborhood.

The ZHB and Applicant also assert the ZHB properly granted the

variance from the maximum density requirement set forth in Section 500-503(C) of

the zoning ordinance as that requirement would conflict with Applicant’s ability to

comply with the minimum lot area requirement in Section 500-503(A) of the

zoning ordinance. To that end, Section 603.1 of the MPC,4 states:

3

The Township joins in the ZHB’s brief.

4

Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,

P.L. 1329, 53 P.S. §10603.1.

9

In interpreting the language of zoning ordinances to

determine the extent of the restriction upon the use of the

property, the language shall be interpreted, where doubt

exists as to the intended meaning of the language written

and enacted by the governing body, in favor of the

property owner and against any implied extension of the

restriction.

53 P.S. §10603.1.

Here, the ZHB and Applicant argue the zoning ordinance requires a

maximum density of 1.2 dwellings per acre in the RA-2 district. The zoning

ordinance also requires a minimum lot size of 30,000 square feet. However, in

order to enforce the maximum density requirement, a lot must exceed the 30,000

square-foot minimum lot area requirement. Here, they assert, each of the proposed

lots meets, and even exceeds, the minimum lot area requirement, yet the proposed

development still fails to meet the maximum density requirement of 1.2 dwellings

per acre. The ZHB and Applicant contend this creates a conflict between two

separate provisions of the zoning ordinance.

The ZHB and Applicant further argue the ZHB properly concluded

Applicant’s two requested variances from the minimum lot width requirement

were de minimis. Zoning hearing boards have discretion to grant or deny a de

minimis variance. Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d

1061 (Pa. Cmwlth. 2012). “There are no set criteria for determining what will be

considered de minimis. Instead, the grant of a de minimis variance depends upon

the circumstances of each case.” Id. at 1066. The ZHB and Applicant argue the

degree of variation is only one of many factors the ZHB could consider in deciding

10

to grant a de minimis variance. They contend the circumstances presented here

warrant a de minimis variance as the credited evidence established Applicant’s

zoning plan would preserve the essential character of and be beneficial to the

surrounding neighborhood.

The ZHB and Applicant also argue this case is factually

distinguishable from Leonard, relied on by Objectors. In Leonard, the landowner

sought to subdivide his property into two 7,500 square foot lots and build a home

on each lot. The landowner sought a variance from the local ordinance, which set

the minimum lot size at 8,000 square feet. The zoning board granted the

landowner a de minimis variance, and the common pleas court affirmed. On

appeal, this Court reversed, concluding the variance was not de minimis. This

Court’s decision was based in part on its determinations that the property at issue

was not irregularly shaped and its subdivision would not maintain any open and

undeveloped space. The ZHB and Applicant maintain, in contrast to Leonard, here

the property is almost twice as deep as it is wide and there is no additional property

for sale that would correct its irregular shape. The ZHB and Applicant assert this

case is also distinguishable from Leonard because Applicant’s plan to merge the

proposed undeveloped Lot 3 with a contiguous property would maintain open and

undeveloped space. Instead, this case is more akin to West Bradford Township v.

Evans, 384 A.2d 1382 (Pa. Cmwlth. 1978), which this Court distinguished in

Leonard.

B. Analysis

A ZHB may grant a variance when the following criteria are met:

11

(1) an unnecessary hardship will result if the variance is denied,

due to the unique physical circumstances or conditions of the

property; (2) because of such physical circumstances or

conditions the property cannot be developed in strict

conformity with the provisions of the zoning ordinance and a

variance is necessary to enable the reasonable use of the

property; (3) the hardship is not self-inflicted; (4) granting the

variance will not alter the essential character of the

neighborhood nor be detrimental to the public welfare; and (5)

the variance sought is the minimum variance that will afford

relief.

Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa.

Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citation omitted).5

5

Similarly, the zoning ordinance states, as relevant:

A. Applicability. Upon appeal from a decision by the Zoning Officer,

the [ZHB] shall have the power to vary or adapt the strict application of

any of the requirements of this chapter where, by reason of exceptional

narrowness, shallowness or shape of a specific piece of property at the

time of the enactment of the chapter or by reason of exceptional

topographic conditions or other extraordinary and exceptional situation or

condition on such piece of property, the strict application of any regulation

enacted under this chapter would result in peculiar and exceptional and

undue hardship upon the owner of such property, but in no other case.

B. Condition. In general, the power to authorize a variance from the

terms of this chapter shall be sparingly exercised and only under peculiar

and exceptional circumstances.

C. Requirements and standards. No variance in the strict application

of the provisions of this chapter shall be granted by the [ZHB] unless the

[ZHB] finds that the requirements and standards are satisfied.

(1) The applicant must prove that the variance will not be contrary

to the public interest and that practical difficulty and unnecessary

hardship will result if it is not granted. In particular, the applicant

shall establish and substantiate that the request for the variance is

in conformance with all the requirements and standards listed

below:

(Footnote continued on next page…)

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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. Hertzberg. The same criteria apply to use and dimensional

variances. Id. However, in Hertzberg, our Supreme Court set forth a more relaxed

(continued…)

(a) 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 this chapter in the

neighborhood or district in which the property is located.

(b) 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 this chapter and that the

authorization of a variance is, therefore, necessary to enable the

reasonable use of the property.

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

applicant or that the applicant at the time that he purchased the

property was not aware or could not reasonably have been

expected to be aware of the zoning classification and restrictions

placed on the property or the circumstances giving rise to the

hardship.

(d) 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.

(e) 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.

Section 500-3107(A)-(C) of the zoning ordinance.

13

standard for establishing unnecessary hardship for a dimensional variance, as

opposed to a use variance.

Under Hertzberg, courts may consider multiple factors in determining

whether an applicant established unnecessary hardship for a dimensional variance.

These factors include: “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.” Id. at 50.

Although Hertzberg eased the requirements, it did not remove them.

Tri-County. An applicant must still present evidence as to each of the conditions

listed in the zoning ordinance, including unnecessary hardship. Id. Where no

hardship is shown, or where the asserted hardship amounts 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 set forth in Hertzberg. Id.

1. Maximum Density Requirement

Section 500-503 of the zoning ordinance, which sets forth the area and

dimensional requirements for the RA-2 district, states, in relevant part:

Unless a greater area or dimensional regulation is stated in §

500-502, Use regulations, for a specific use, all uses in the RA-

2 District shall meet the following requirements:

A. Minimum lot area: 30,000 square feet

****

14

C. Maximum density: 1.2 dwelling units per acre.

Sections 500-503 (A), (C) of the zoning ordinance.

In granting Applicant relief from the maximum density requirement,

the ZHB made the following pertinent findings and conclusions:

3. The [p]roperty is located in the [RA-2 district] of [the]

Township. It is 79,954 square feet in size. It accommodates a

ranch style single-family detached dwelling with typical

residential access walkways and a driveway.

4. The residential structure on the [p]roperty is presently vacant.

5. [Applicant] proposes to demolish the existing residential

structure and to subdivide the [p]roperty into three lots as

follows:

(1) Lot 1, which is proposed to be 30,008 square feet in

size to accommodate a single-family residential building

lot;

(2) Lot 2, which is proposed to be 30,152 square feet in

size to accommodate a second residential building lot;

and

(3) Lot 3, which is 19,794 square feet in size which is

proposed to be merged with a contiguous property tax

parcel #22-69-265. That tax parcel accommodates a

single-family detached dwelling which fronts on Carlene

Court. It is lawfully nonconforming to the minimum lot

width requirement of §500-503.B which requires a

minimum lot width of [sic] at the building setback line of

125 feet. Its existing lot width is 106.84 feet.

6. The existing single family residential use is permitted by

right in the [RA-2 district] in which the [p]roperty is located.

7. Similarly, according to [zoning] [o]rdinance §500-503.A, a

single-family residential use is permitted, by right, in the [RA-2

district] on lots that are at least 30,000 square feet in size.

15

****

14. Based upon the competent evidence of [Applicant’s

Engineer], who was qualified to testify as an expert in civil

engineering, the proposed structures on each of the two

building lots will meet the front, rear, and side yard setback

distances, building coverage, building height, and impervious

surface coverage ratio requirements of §500-503 of the [zoning]

[o]rdinance. Each of the proposed building lots will meet the

minimum lot area requirement of 30,000 square feet set forth at

§500-503.A.

****

19. The two building lots will result in a building density of

1.45 dwelling units per acre. [Zoning] [o]rdinance §500-503.C

limits the density to 1.2 dwelling units per acre. However,

[Applicant’s Engineer] credibly testified that he performed

calculations that indicate that, if §500-503.C is followed, it

would require a lot area of 36,300 square feet. This lot area is

in conflict with the minimum lot area of 30,000 square feet set

forth at §500-503.A.

****

3. As the law requires that conflicts within [z]oning

[o]rdinances be resolved in favor of the property owner, the

maximum density requirement of 1.2 dwelling units per acre,

contained at §500-503.C, in this instance, would require a

building lot greater in size than the minimum lot area

requirement of 30,000 square feet.

4. Accordingly, the [ZHB] concludes that a variance from

§500-503.C is necessary and warranted.

F.F. Nos. 3-7, 14, 19; Concls. of Law Nos. 3, 4. Upon review, we conclude the

ZHB erred in granting Applicant a variance from Section 500-503(C) of the zoning

ordinance’s maximum density requirement for several reasons.

16

First, it is clear the ZHB did not grant Applicant relief from the zoning

ordinance’s maximum density requirement on the ground that Applicant proved it

satisfied the elements necessary for a de minimis variance. See, e.g., Appletree

Land Dev. v. Zoning Hearing Bd. of York Twp., 834 A.2d 1214, 1216 (Pa.

Cmwlth. 2003) (“The de minimis variance doctrine is a narrow exception to the

heavy burden of proof involved in seeking a variance. The doctrine applies only

where: (1) a minor deviation from the dimensional uses of a zoning ordinance is

sought, and (2) rigid compliance with the zoning ordinance is not necessary to

protect the public policy concerns inherent in the ordinance.”) (emphasis added)

(citations omitted).

Further, despite granting Applicant a variance from the maximum

density requirement, the ZHB made no determination that Applicant proved the

requisite unnecessary hardship or that any alleged unnecessary hardship was not

self-inflicted. This is not surprising given that Applicant only needs the variance

from the maximum density requirement because it intends to subdivide the

property and build two homes resulting in a violation of the maximum density

requirement despite the fact that it can use the property for one compliant home.

Thus, Applicant is creating the alleged hardship it seeks to remedy. Additionally,

because Applicant could use the property for one compliant home without the need

for zoning relief, the variance is not the minimum variance that would afford relief.

Nevertheless, the ZHB granted the “variance” from the maximum

density requirement on the ground that it conflicted with the minimum lot area

requirement. More particularly, the ZHB determined Applicant’s two proposed

17

building lots would result in a building density of 1.45 dwelling units per acre.

F.F. No. 19. The ZHB noted Section 500-503(C) of the zoning ordinance limits

the density to 1.2 dwelling units per acre. Id. However, the ZHB found

Applicant’s Engineer credibly testified that he performed calculations that indicate

that, if Section 500-503(C) is followed, it would require a lot area of 36,300 square

feet.6 Id. The ZHB determined this lot area is in conflict with the minimum lot

area of 30,000 square feet set forth in Section 500-503(A) of the zoning ordinance.

Concl. of Law No. 3. As the law requires that conflicts within zoning ordinances

be resolved in favor of the property owner, the ZHB stated, the maximum density

requirement of 1.2 dwelling units per acre set forth in Section 500-503(C), in this

instance, would require a building lot greater in size than the minimum lot area

requirement of 30,000 square feet. Id. Thus, according to the ZHB, a variance

was “necessary and warranted.” Concl. of Law No. 4.

Contrary to the ZHB’s determination, we perceive no conflict between

the lot area and density provisions. More particularly, Section 500-503(C) of the

zoning ordinance sets forth a maximum density of 1.2 dwelling units per acre. On

the other hand, Section 500-503(A) of the zoning ordinance requires a minimum lot

area of 30,000 square feet.7 Thus, the zoning ordinance requires that lots in the

6

Although the ZHB credited Applicant’s Engineer’s testimony on this point, our review

of the ZHB’s hearing transcript reveals Applicant’s Engineer offered no such testimony. Rather,

Applicant’s counsel made this statement.

7

Section 500-202 of the zoning ordinance defines “density” as “a measure of the number

of dwelling units per unit of area. It shall be expressed in dwelling units per acre. The measure

is arrived at by dividing the number of dwelling units by the base site area.” Id. (emphasis

added). That Section separately defines “lot area” as: “The area contained within the property

lines of the individual parcels of land shown on a subdivision plan, excluding any area within an

existing or designated future street right-of-way or any area required as open space under this

(Footnote continued on next page…)

18

RA-2 district be at least 30,000 square feet and contain a maximum of 1.2 dwelling

units per acre (or 43,560 square feet). Simply stated, Section 500-503(C) places a

cap on the allowable density (or intensity) of a permitted use permitted in the RA-2

district, while Section 500-503(A) sets a floor for the size of a lot on which a

permitted use may occur. Here, proposed Lots 1 and 2 slightly exceed (and

therefore satisfy) the minimum lot area requirement, but Applicant seeks a variance

to increase the maximum permissible 1.2 dwelling units per acre, which would

increase the permissible intensity of use in the RA-2 district. Because there is no

conflict between the zoning ordinance’s minimum lot area and maximum density

provisions, the ZHB erred in positing a conflict and granting a variance on this

basis.

Under the ZHB’s interpretation, as long as the minimum lot area of

30,000 square feet is satisfied, the maximum density requirement of 1.2 dwelling

units per acre must give way; therefore, an applicant could exceed the maximum

density requirement to any degree as long as its lot satisfies the minimum lot area

requirement. Such an interpretation would yield an absurd result, which we must

presume the local governing body did not intend in enacting the lot area and

density provisions. See 1 Pa. C.S. §1922(1) (in ascertaining the intention of the

(continued…)

chapter and including the area of any easements.” Id. (emphasis added). Clearly, “lot area” and

“density,” which are separately defined terms, are discrete concepts that regulate different

aspects of each lot.

19

legislative body in the enactment of an ordinance, court may presume the

legislative body does not intend a result that is absurd or unreasonable.)8

We also reject the ZHB and Applicant’s reliance on Section 603.1 of

the MPC. “While it is undeniable that we are to interpret ambiguous language in

an ordinance in favor of the property owner and against any implied extension of

the restriction, such a restrictive reading of an ordinance is unwarranted where ‘the

words of the zoning ordinance are clear and free from any ambiguity.’” City of

Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa. Cmwlth.

2006) (quoting Isaacs v. Wilkes-Barre City Zoning Hearing Bd., 612 A.2d 559,

561 (Pa. Cmwlth. 1992)) (emphasis added). Thus, “[w]hile it is true that zoning

ordinances are to be liberally construed to allow the broadest possible use of land,

it is also true that zoning ordinances are to be construed in accordance with the

plain and ordinary meaning of their words.” Tri-County, 83 A.3d at 510 (quoting

Zappala Grp., Inc. v. Zoning Hearing Bd. of Town of McCandless, 810 A.2d 708,

710 (Pa. Cmwlth. 2002)). Because we perceive no conflict here based on the plain

language of the zoning ordinance’s minimum lot area and maximum density

provisions, the rule set forth in Section 603.1 of the MPC does not apply.

In any event, the proper method for raising a purported conflict

between the zoning ordinance’s minimum lot area and maximum density

provisions would be through a substantive validity challenge. However, Applicant

8

Although the Statutory Construction Act, 1 Pa. C.S. §§ 1501-1991, does not apply

expressly to zoning ordinances, the principles contained in that act are followed in construing a

local ordinance. Trojnacki v. Bd. of Supervisors of Solebury Twp., 842 A.2d 503 (Pa. Cmwlth.

2004).

20

did not raise a substantive validity challenge to the zoning ordinance, and the ZHB

did not utilize that rationale in granting Applicant’s request for relief from the

maximum density provision.

For all these reasons, the ZHB erred in granting Applicant variance

relief from the zoning ordinance’s maximum density requirement.

2. Lot Width Requirement

As to the lot width requirement in the RA-2 district, Section 500-503

of the zoning ordinance states:

Unless a greater area or dimensional regulation is stated in §

500-502, Use regulations, for a specific use, all uses in the RA-

2 District shall meet the following requirements:

****

B. Minimum lot width: 125 feet.

Section 500-503(B) of the zoning ordinance.

The ZHB found Applicant’s proposed Lot 1 would have a lot width of

106.73 feet and proposed Lot 2 would have a lot width of 107.24 feet. F.F. No. 15.

In granting relief from the 125-foot lot width requirement set forth in Section 500-

503(B), a deviation of approximately 15%, the ZHB stated Applicant’s request

involved only a “minor deviation from one of the dimensional requirements of the

[zoning] [o]rdinance.” Concl. of Law No. 5. The ZHB also determined the

construction of the two proposed new homes would enhance the property and the

neighborhood, Concl. of Law No. 6, and would not adversely impact property

21

values or have a negative impact on surrounding properties or uses. Concls. of

Law Nos. 8-9.

Despite these determinations, the ZHB made no determination that

Applicant proved the requisite unnecessary hardship, nor did it find any alleged

hardship was not self-inflicted. To that end, Applicant will need the two lot width

variances because it intends to create two new undersized lots where none

currently exist. As such, Applicant will be creating the undersized lot hardship it

seeks to remedy. Further, while Applicant asserts the property is irregularly

shaped because it is twice as wide as it is deep, the ZHB made no finding that this

purported irregular shape necessitated variance relief. And, in any event, the

property as it currently exists is over 200 feet wide, which is substantially greater

than the minimum lot width required under the zoning ordinance. Moreover, it is

beyond dispute that no variance is needed for Applicant to make reasonable use of

the property for one single-family home (indeed, a single-family home currently

exists on the property). Rather, Applicant seeks variance relief in order to

subdivide the property and construct two single-family homes in an effort to

maximize profitability. This is not sufficient to constitute unnecessary hardship.

Tri-County; Cardamone.9

Indeed, where no hardship is shown, or where the asserted hardship

amounts to a landowner’s mere desire to increase profitability, the unnecessary

9

Further, although the ZHB made a passing reference to the fact that Applicant seeks the

minimum variance that would afford relief, see Concl. of Law No. 10, this statement was in error

given that Applicant can use the property for one single-family home without the need for any

variance relief.

22

hardship criterion required to obtain a variance is not satisfied even under the

relaxed standard set forth by the Supreme Court in Hertzberg. See, e.g., Soc’y Hill

Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012)

(rejecting applicants’ request for dimensional variance from zoning code’s loading

space requirement where need for variance was triggered by applicants’ desire to

expand use of property to maximize profitability); Singer v. Zoning Bd. of

Adjustment of City of Phila., 29 A.3d 144 (Pa. Cmwlth. 2011) (rejecting

applicant’s request for dimensional variances from zoning code’s parking, floor

area ratio and loading dock requirements where asserted hardship amounted to

applicant’s desire to maximize development potential of property); Lamar

Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997

A.2d 423 (Pa. Cmwlth. 2010) (rejecting applicant’s request for dimensional

variance for proposed sign where only asserted hardship involved alleged benefit

to community and increase in income); Twp. of Northampton v. Zoning Hearing

Bd. of Northampton Twp., 969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting applicant’s

request for variance from ordinance’s off-street parking requirements where no

evidence of hardship presented even under relaxed Hertzberg standard and

evidence revealed applicant could use property in a manner consistent with

ordinance requirements); In re Boyer, 960 A.2d 179 (Pa. Cmwlth. 2008) (rejecting

applicant’s requests for dimensional variances from ordinance’s steep slope and

setback requirements in order to construct in-ground pool where no evidence of

hardship presented even under relaxed Hertzberg standard); Se. Chester County

Refuse Auth. v. Zoning Hearing Bd. of London Grove Twp., 898 A.2d 680 (Pa.

Cmwlth. 2006) (rejecting request for dimensional variance where evidence

indicated applicant could continue to operate at a profit without variance relief; no

23

hardship shown); One Meridian Partners, LLP v. Zoning Board of Adjustment of

City of Phila., 867 A.2d 706 (Pa. Cmwlth. 2005) (rejecting request for dimensional

variance from floor area ratio and height requirements where asserted hardship was

essentially financial in nature); Yeager v. Zoning Hearing Board of City of

Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001) (rejecting applicant’s request for

dimensional variances from ordinance’s setback and clear sight triangle

requirements where only hardship amounted to applicant’s desire to construct a

building for its new car dealership that complied with specifications required by

vehicle manufacturer).

In addition, while the ZHB noted Applicant’s requested deviations

from the zoning ordinance’s lot width requirement were minor, it did not explicitly

reference the de minimis variance doctrine in granting relief from the zoning

ordinance’s minimum lot width requirement.

As noted above, the de minimis variance doctrine is a narrow

exception to the heavy burden of proof involved in seeking a variance. Appletree

Land Dev. It applies only where: (1) a minor deviation from the dimensional

requirements of a zoning ordinance is sought, and (2) rigid compliance with the

zoning ordinance is not necessary to protect the public policy concerns inherent in

the ordinance. Id.

While it can be inferred that the ZHB determined that rigid

compliance with the zoning ordinance was not necessary to protect the public

policy concerns inherent in the ordinance, see Concls. of Law Nos. 6-9, the ZHB

24

made no such express determination. Moreover, the property lies in the RA-2

Residence Agricultural zoning district, the purpose and intent of which is as

follows:

The RA-2 Residence Agricultural District is composed of low-

density residential areas of the Township and open areas where

similar residential development is likely to occur. The purposes

of this district are to permit residential development at a low

density to provide a transition zone between agricultural areas

and medium-density residential development; to provide

standards which will encourage the installation of public

facilities and the preservation of permanent public open space;

to exclude activities of a commercial or industrial nature and

any activities not compatible with residential development; and

to otherwise create conditions conducive to carrying out the

purposes of this chapter as set forth in § 500-101.

Section 500-501 of the zoning ordinance (emphasis added). Clearly, the zoning

ordinance’s minimum lot width requirement is important to these objectives. See,

e.g., Appeal of Ressler Mill Found., 573 A.2d 675 (Pa. Cmwlth. 1990) (lot width

requirement works in conjunction with minimum lot area requirement to create

open space).

In addition, we agree with Objectors that the ZHB erred in granting as

de minimis the two lot width variances Applicant sought in light of our decision in

Leonard. There, the applicants sought a dimensional variance to subdivide their

conforming 15,000 square foot lot into two non-compliant lots with each lot being

7,500 square feet rather than the required 8,000 square feet. The proposed

deviation was 6.25%. In reversing decisions of the zoning board and the court of

25

common pleas that approved the variance as de minimis, this Court explained (with

emphasis added):

The [applicants] contend that this deviation is de minimis (1)

under [West Bradford Township] and (2) in light of the lot sizes

of other properties in the neighborhood.

West Bradford Township is similar to the case sub judice

in that the de minimis doctrine was applied to a subdivision of

property. However, the subdivision here would create the non-

conformity while in West Bradford Township the subdivision

merely intensified what appears to be a pre-existing non-

conformity. Furthermore, the lot to be subdivided in West

Bradford Township was irregularly shaped, which is not the

case here. Likewise, one of the lots created by the subdivision

in West Bradford Township was to be maintained as open,

undeveloped space, which again is not the case here.

Because of the factual dissimilarities between West

Bradford Township and the case sub judice, we decline to find

West Bradford Township dispositive here. The unique

circumstances that supported application of the de minimis

doctrine there simply are not present here so as to justify a

departure from the well-established burden of proof customarily

carried by a party seeking a variance.

Nor do we find persuasive the [applicants’] assertion that

the deviations here are de minimis in light of this particular

neighborhood. The record indicates that there are lots within

the immediate vicinity of the [applicants’] property which

conform to the ordinance’s minimum lot size requirement,

some of which are comparable to the [applicants’] 15,000

square foot property. Simply because there may be some lots in

this neighborhood which are less than 8,000 square feet is not,

in our opinion, sufficient to establish entitlement to a variance.

See Braccia v. Township of Upper Moreland Zoning Hearing

Board, [] 327 A.2d 886 ([Pa. Cmwlth.] 1974) (a variance was

denied despite the fact that only 2 of 25 parking lots complied

with the parking space dimensions required under the zoning

regulations); see also Campbell v. Ughes, [] 298 A.2d 690 ([Pa.

Cmwlth.] 1972) (this Court reversed the granting of a variance

26

from an 85 foot lot width requirement despite evidence that 16

of 24 lots in the block had widths of less than 85 feet).

In any event, we must be mindful that zoning boards and

courts function, inter alia, to enforce zoning ordinances in

accordance with applicable law; not to impose their concepts of

what the ordinance ought to be. Gottlieb v. Zoning Hearing

Board of Lower Moreland Township, [] 349 A.2d 61 ([Pa.

Cmwlth.] 1975). We must also be mindful that the de minimis

doctrine is an extremely narrow exception to the heavy burden

of proof that a party seeking a variance must normally bear.

In accordance therewith, we now hold that the 500 square

foot deviations here are not de minimis as a matter of law. See

Andreucci v. The Zoning Hearing Board of Lower Milford

Township, [] 522 A.2d 107 ([Pa. Cmwlth.] 1987) (an 8%

deviation from an ordinance’s minimum lot size was not de

minimis). Thus, we decline to establish in the zoning law of this

Commonwealth by decision in this case that a subdivision

creating a 6% plus deviation from the ordinance lot size

minimum may be permitted solely on the basis that such

deviation is de minimis.

Because we have found that the [b]oard erred in applying

the de minimis doctrine to this case and because the

[applicants’] failed to establish any unnecessary hardship so as

to entitle them to a traditional variance, we will reverse the

[common pleas] court’s order which affirmed the [b]oard’s

decision.

Leonard, 583 A.2d at 12-13 (footnote omitted).

Here, as in Leonard, and unlike in West Bradford Township, the

subdivision would create the non-conformity as to lot width for the two proposed

newly created lots. Additionally, similar to Leonard and unlike in West Bradford

Township (in which the property at issue was “L-shaped”), the property here is not

irregularly shaped; indeed, the ZHB here made no finding that the shape of the

27

property justified the grant of two variances from the zoning ordinance’s lot width

requirement. Further, as we pointed out in Leonard, unlike West Bradford

Township in which one of the lots created by the subdivision was proposed to be

maintained as open, undeveloped space, such is not the case here as proposed Lots

1 and 2 would each contain single family homes and proposed Lot 3, to which

Applicant would add square footage, already contains a single-family home.

In addition, relying on our prior decision in Andreuccci, which held

an 8% deviation from a minimum lot size requirement was not de minimis as a

matter of law, in Leonard we declined to hold that the 500-square foot (or 6.25%)

deviations from the ordinance’s lot area requirement was de minimis. See also

D’Amato v. Zoning Bd. of Adjustment of City of Phila., 585 A.2d 580 (Pa.

Cmwlth. 1991) (13% reduction in required open space was not de minimis). Cf.

Twp. of Middletown v. Zoning Hearing Bd. of Middletown Twp., 682 A.2d 900

(Pa. Cmwlth. 1996) (6.76% increase in maximum building coverage requirement

that would allow applicants to add a garage onto their home was de minimis);

Ressler Mill Found. (4.7% deviation from required lot width (7-foot deviation from

150-foot requirement) to enable construction of single-family home and horse barn

on one lot was de minimis).

Similarly here, although there is no precise mathematical percentage

that marks the dividing line between de minimis and significant deviations,10 we

decline to hold that the two approximately 15% deviations from the zoning

ordinance’s lot width requirement, which would create two non-compliant lots, is

10

Swemley v. Zoning Hearing Bd. of Windsor Twp., 698 A.2d 160 (Pa. Cmwlth. 1997).

28

de minimis. See, e.g., Pugliese v. Zoning Hearing Bd. of Bethlehem Twp. (Pa.

Cmwlth., No. 2297 C.D. 2014, filed October 15, 2015), 2015 WL 6473668

(unreported) (zoning board properly determined applicant did not prove requested

deviation was insignificant where applicant sought two variances from minimum

lot width requirement to subdivide property and build two homes, thereby doubling

density of use and creating two substandard lots, where property could reasonably

be used for one single-family home without zoning relief).11

For all the foregoing reasons, we reverse the trial court’s order that

affirmed the ZHB’s decision and order granting Applicant’s three variance

requests.

ROBERT SIMPSON, Judge

11

Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code

§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited

for its persuasive value.

We also distinguish our unreported decision in Laskowski v. West Chester Borough

Zoning Hearing Board (Pa. Cmwlth., No. 1902 C.D. 2012, filed July 11, 2013), 2013 WL

3487048, cited by Applicant, from the case at issue here. In Laskowski, we upheld a zoning

board’s grant of a de minimis variance from a zoning ordinance’s building height requirement for

a proposed apartment building based, in part, on the unusual circumstances of the grading on the

property.

Here, unlike in Laskowski, the ZHB did not grant Applicant’s request for variance relief

from the lot width requirement on the ground that the property contained unique or unusual

physical features that impacted its ability to comply with the minimum lot width requirement.

Indeed, it is only Applicant’s proposed subdivision of the property that would render it non-

compliant with the lot width requirement as the width of the existing property exceeds the zoning

ordinance’s minimum lot width requirement by more than 80 feet.

29

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and Lori N. Dunn, :

Appellants :

:

v. : No. 1436 C.D. 2015

:

Middletown Township Zoning :

Hearing Board :

ORDER

AND NOW, this 11th day of July, 2016, the order of the Court of

Common Pleas of Bucks County is REVERSED.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and :

Lori N. Dunn, : No. 1436 C.D. 2015

: Argued: May 13, 2016

Appellants :

:

v. :

:

Middletown Township Zoning :

Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

CONCURRING AND DISSENTING OPINION

BY SENIOR JUDGE FRIEDMAN FILED: July 11, 2016

I respectfully concur in part and dissent in part. I agree with the

majority’s conclusion that the ZHB erred in granting Applicant a variance from the

maximum-density requirement in section 500-503.C of the Ordinance. However, I

disagree with the majority’s conclusion that the ZHB erred in granting Applicant

two de minimis variances from the minimum-lot-width requirement in section 500-

503.B of the Ordinance.

A zoning hearing board may grant a de minimis variance if: “(1) a

minor deviation from the dimensional uses of a zoning ordinance is sought, and (2)

rigid compliance with the zoning ordinance is not necessary to protect the public

policy concerns inherent in the ordinance.” Appletree Land Development v.

Zoning Hearing Board of York Township, 834 A.2d 1214, 1216 (Pa. Cmwlth.

2003). “The grant of a de minimis variance is a matter of discretion with the local

zoning board.” Hawk v. City of Pittsburgh Zoning Board of Adjustment, 38 A.3d

1061, 1066 (Pa. Cmwlth. 2012).

The majority holds that the ZHB erred in concluding that Applicant

sought only minor deviations from the Ordinance’s lot-width requirement,

emphasizing that the proposed subdivision would create two 15-percent deviations.

However, “[t]here are no set criteria for determining what will be considered de

minimis. Instead, the grant of a de minimis variance depends upon the

circumstances of each case.” Id. (emphasis added) (footnote omitted); see also

Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 162-63

(Pa. Cmwlth. 1997) (“[T]here is no precise mathematical percentage which marks

the dividing line between de minimis and significant deviations.”).

Unlike many cases in which we have examined de minimis variances,

here the credited evidence establishes that Applicant’s zoning plan would benefit

the surrounding neighborhood rather than merely not be a detriment to it. (ZHB’s

Conclusions of Law, No. 6.) Schurr testified that the homes that Applicant

proposed to build on Lots 1 and 2 would enhance the aesthetic integrity of the

neighborhood. (N.T., 9/24/14, at 22.) In addition, Applicant’s engineer testified

that Applicant’s zoning plan would allow neighboring properties to connect to

water and sewer utilities. (Id. at 13.) Under these circumstances, I believe that the

ZHB properly concluded that Applicant sought only minor deviations from the

Ordinance’s lot-width requirement.

RSF - 2 -

Additionally, the ZHB’s findings of fact and conclusions of law

establish that rigid compliance with section 500-503.B of the Ordinance was not

necessary to protect the Ordinance’s public policy of low-density residential

development and open space.1 Applicant would merge the undeveloped Lot 3 with

a contiguous property rather than developing the lot. (ZHB’s Findings of Fact, No.

5(3).) Additionally, the single-family homes that Applicant proposes to build on

Lots 1 and 2 would satisfy the Ordinance’s requirements for lot area, yard setback

distance, building height, and impervious surface coverage ratio. (Id., No. 14.)

Thus, Applicant’s zoning plan is consistent with the Ordinance’s public policy of

low-density development and open space in the RA-2 Residence Agricultural

District.

The majority’s reliance on Leonard v. Zoning Hearing Board of the

City of Bethlehem, 583 A.2d 11 (Pa. Cmwlth. 1990), is misplaced. Unlike the

present case, the zoning hearing board in Leonard did not find that granting the

requested variance would benefit the surrounding neighborhood. Additionally, our

conclusion in Leonard was, in part, based on the applicant’s failure to maintain

open space as part of his proposed subdivision of the property. Id. at 13. Because

Applicant’s zoning plan would preserve open space consistent with the

Ordinance’s public policy, Leonard is distinguishable. Therefore, I would

conclude that the ZHB properly granted Applicant two de minimis variances from

the minimum-lot-width requirement in section 500-503.B of the Ordinance.

1

Although the majority states that the ZHB did not expressly conclude that Applicant

satisfied this requirement for a de minimis variance, the majority acknowledges that “it can be

inferred” from the ZHB’s decision that the ZHB concluded that Applicant satisfied this

requirement. (Maj. Op. at 24-25.)

RSF - 3 -

Accordingly, I concur in part and dissent in part.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge

.

RSF - 4 -