The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hopewell Township, :
Appellant :
:
v. : No. 51 C.D. 2023
: Argued: December 4, 2023
Hopewell Township Zoning Hearing :
Board :
:
v. :
:
James T. Hopkins, Jr. and :
Elsie P. Hopkins :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: January 3, 2024
In this land use appeal, Hopewell Township (Township) appeals an Order of
the Court of Common Pleas of York County (trial court) affirming the March 10,
2022 decision of the Hopewell Township Zoning Hearing Board (the Board)
granting James T. Hopkins, Jr.’s and Elsie P. Hopkins’s (collectively, Applicants)
Variance Application (Application) thereby allowing Applicants to subdivide their
10.6-acre parcel (the Property) located in the Agricultural Zoning District (the
Agricultural Zone) of the Township into two approximately five-acre parcels for the
purpose of constructing a second single-family dwelling without the requirement to
forfeit one dwelling right per acre to do so. The Township’s Zoning Ordinance
(Ordinance) requires a minimum lot size of one acre and a maximum lot size of two
acres for a single-family dwelling in the Agricultural Zone and provides that with
regard to lots exceeding two acres, an additional dwelling right must be forfeited for
each additional or partial acre exceeding one acre; however, pursuant to an existing
agreement, Applicants possess only two dwelling rights for the Property, one of
which applies to their own single-family residence.1 The issues presented herein
require a determination as to whether the Board erred in finding that Applicants met
their burden of proof of all elements necessary for granting the Application. After
thorough consideration, we affirm.
The following facts are from the Board’s decision. Since 1983, Applicants
have been the owners of the Property which at that time was approximately 16 acres.
Mr. Hopkins farmed a portion of the Property for two years before finding that the
land’s rocky soil was not suitable for continued farming. A separate portion of the
Property, 5.3 acres, was subdivided in October 1990, and, thereafter, a single
dwelling right remained associated with the Property. Currently, the Property is
comprised of about 10.6 acres, and eight neighboring properties are comprised of
about five acres.
A public hearing was held on the Application on February 17, 2022, at which
time Mr. Hopkins testified. Mr. Hopkins is 87 years old, and Mrs. Hopkins is 88
years old. Maintaining the dormant Property has become difficult for Mr. Hopkins.
The variance would allow the Property to be utilized for the construction of a single-
family dwelling. Applicants intend to permit their niece and nephew, who would
1
See Reproduced Record (R.R.) at 224a-26a; 229a-31a; 235a-37a; 242a-44a; 257a-59a.)
Pursuant to the agreement which was entered in connection with a previous subdivision plan, the
Property received two additional rights for single-family residential units and one additional unit
for a single-family residence was allocated to another property owner. (Id.)
2
assist Applicants in maintaining the Property, to construct a home on the subdivided
parcel. Mr. Hopkins believed the variance is the minimal amount necessary to afford
Applicants relief and would not substantially alter the neighborhood’s character or
impair the usability of development of neighboring properties. Applicants submitted
an exhibit and supporting testimony of neighbors in this regard. Mr. Hopkins
described a significant wooded portion of the Property and an overhead utility
easement which bisects the Property as unique physical circumstances or conditions
that are peculiar to the Property and were not of Applicants’ creation. Mr. Hopkins
explained that these conditions, coupled with the poor soil on the Property, make it
impossible to use the Property for an agricultural purpose. It also would be
extremely difficult to construct a home along with the necessary in-ground septic
and well systems on a parcel less than two acres. Due to these physical conditions
on the Property, Mr. Hopkins stated it cannot be utilized in a way that conforms with
the Ordinance.
Township’s Zoning Officer Keith Hunnings (Zoning Officer) testified as to
Township’s position that the Property could be utilized in a way that conforms to the
Ordinance which currently requires a minimal lot size of one acre and a maximum
lot size of two acres for a single-family dwelling in the Agricultural Zone. Zoning
Officer suggested Applicants could subdivide a 2.25-acre lot from the Property and
forfeit a dwelling right to enable the construction of the proposed single-family
dwelling, notwithstanding the utility line easement and the other characteristics of
the Property. Zoning Officer anticipated no problems with creating a driveway,
well, or septic system on a 2.25-acre lot. Moreover, Zoning Officer posited that
Applicants could purchase additional dwelling rights from neighbors to remain in
compliance with the Ordinance.
3
Several of Applicants’ neighbors signed a statement on December 1, 2021,
and testified in favor of the Application and their belief that the proposed subdivision
of five acres from the Property would not only be in conformity with the character
of the neighborhood but would actually enhance it. Applicants’ nephew Rick Sands
testified regarding the hardship the utility line easement creates and that the variance
would allow the construction of a single-family dwelling in a safer location and
further away from the road than where it would need to be placed on a 2.25-acre
plot.
The Board issued findings of fact (FOF) wherein it incorporated its summary
of the testimony as set forth in the decision, accepted the parties’ exhibits into
evidence, and found Mr. Hopkins’ testimony and that presented by Township to be
credible. (Board’s Decision, FOF ¶¶ 1-3.) The Board reached a single conclusion
of law (COL), which reads as follows:
The Board has considered the weight of the [t]estimony and believes
that [] Applicant[s] ha[ve] demonstrated that there is a hardship that
was not self-created in this Property and because this is a dimensional
variance a looser standard is applied, and therefore, [] Applicant[s]
ha[ve] met [their] burden of proof as to all Variance criteria.
(Id., COL ¶ 1.) The Board unanimously voted to grant Applicants’ Application.
Township timely appealed the Board’s decision to the trial court, which
affirmed. In doing so, the trial court found that the variance is a dimensional
variance “because a single-family residential dwelling is already a permitted use in
an Agricultural Zone.” (Trial Court Memorandum Opinion (Op.) filed 12/16/22, at
10.2) The trial court meticulously applied the five criteria the Pennsylvania Supreme
2
In its Memorandum Opinion entered on March 13, 2023, pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a), (Rule 1925a Op.) the trial court stated that it had previously
(Footnote continued on next page…)
4
Court provided must be satisfied for a dimensional variance in Hertzberg v. Zoning
Board of Adjustment, 721 A.2d 43 (Pa. 1998), and found that in light of the record
evidence, the Board could have “inferred” that Applicants had met those criteria.
(Op. at 10.) Township filed a timely notice of appeal.
On appeal,3 while Township concedes Applicants have shown that their
proposed subdivision of the Property will not substantially alter the surrounding
neighborhood’s character, it posits that the evidence is insufficient to meet the other
four elements necessary to qualify for the variance. (Township’s Brief (Br.) at 11).
Township contends Applicants did not present substantial evidence of an existing,
unnecessary hardship on the Property such that development in accordance with the
Ordinance is not possible and suggests that Applicants could subdivide the Property
within the parameters of the Ordinance. (Id. at 10-11.) Township posits that
Applicants seek the Variance for the “practical” reason of easing their burden of
caring for the Property based on nothing more than a “personal preference.” (Id. at
9.) Also, Township avers Applicants have not supported their claim that the variance
addressed the issues Township presents on appeal in its Order and Opinion entered on December
16, 2022, and incorporated its prior decision therein. (Rule 1925a Op. at 1.)
3
Although Township frames the issues for our consideration in terms of whether the trial
court committed errors of law or abused its discretion, (Township’s Brief at 3), because the trial
court did not take additional evidence in this zoning appeal, this Court’s review is limited to
reviewing the Board’s decision, not that of the trial court, and determining whether the Board
committed an error of law or an abuse of discretion. Dowds v. Zoning Bd. of Adjustment, 242 A.3d
683, 695 (Pa. Cmwlth. 2020). When determining whether the Board committed an error of law,
we conduct a de novo review and “are not bound by the legal conclusions of the governing body
or lower court[].” EQT Prod. Co. v. Borough of Jefferson Hills, 208 A.3d 1010, 1025 (Pa. 2019)
(citation omitted). We will find the Board abused its discretion “whenever the findings of the
governing body are not supported by substantial evidence.” Id. at 1024. “Substantial evidence is
‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Delchester Devs., L.P. v. Zoning Hearing Bd. of Twp. of London Grove, 161 A.3d 1081, 1085 n.1
(Pa. Cmwlth. 2017) (quoting Hertzberg, 721 A.2d at 46).
5
was the minimum to afford them relief, and, in fact, Township established that lesser
variance requests were possible, like the purchase of additional dwelling rights or
subdivisions as small as two acres, but Applicants did not seek such relief. (Id. at
3, 21-23.) According to Township, it demonstrated to the Board that small
subdivisions of the Property would sufficiently provide the relief Applicants seek,
but for “preference, desire, convenience, and aesthetics” reasons, Applicants did not
consider these other viable options which would conform to the Ordinance. (Id. at
9-11, 19, 22.) Acknowledging the wooded property was cut horizontally by the
utility line easement, Township points out that such features are present on “many
parcels.” (Id. at 20.) Because Applicants had been the grantors in 1986 when the
utility line easement was given, Township reasons they were well aware of this “self-
created hardship” and received consideration for it. (Id. at 20-21). Township argues
the Board ignored the foregoing evidence and based its decision “upon feeling rather
than strong legal basis.” (Id. at 11.)
The Board argues that the variance is clearly dimensional under Hertzberg, as
a single-family detached dwelling is a permitted use in the Agricultural Zone of
Township. Therefore, Applicants’ proposed use of their Property is not entirely
outside of uses contemplated for properties in the Agricultural Zone but, instead,
“[t]he very essence of [their] request speaks to the dimensions of the lot on which a
permitted use can occur.” (Board’s Br. at 6-8.) The Board posits substantial
evidence of record supports its decision to grant the variance, as each of the five
necessary criteria enumerated in Hertzberg has been satisfied. (Id. at 9.) The Board
states Applicants demonstrated the “unique topographical characteristics and
physical conditions of the Property” render the Property unsuitable for agricultural
uses. (Id. at 9-12.) In this regard, the Board explains it also properly considered the
6
resultant economic detriment to Applicants if the variance were denied, the lot sizes
of nearby parcels, and the neighbors’ approval of the variance. (Id. at 8, 12.)
According to the Board, the Property cannot reasonably be used in strict conformity
with the Ordinance as the record lacks any evidence to support Township’s
suggestion that a 2.25-acre plot would be sufficient for the placement of a single-
family dwelling on the Property or that Applicants’ ability to purchase dwelling
rights from other property owners in Township would be feasible. (Id. at 13-18.)
The Board stresses that Applicants did not create the aforementioned hardships, i.e.,
“the rockiness of the Property’s soil, the amount of land consisting of wooded area,
or the presence of a forty-foot utility line easement bisecting the Property,” and
Township did not substantiate its claim that other properties in the Agricultural Zone
are burdened by similar hardships. (Id. at 19-21.) The Board also notes that
Applicants’ request for the variance, which the Board properly found to be the
minimal necessary to enable a reasonable use of the Property for a single-family
dwelling, “received overwhelming support from neighboring property owners,” who
testified the variance “would promote consistency and uniformity of lot sizes in the
[] neighborhood.” (Id. at 21-23.) The Board concludes that the strict enforcement
of the Ordinance in the instant situation would be contra to the express purpose of
Township’s Agricultural Zone to “preserve for agricultural use the land best suited
for that purpose and thereby strengthen the agricultural economy of [] [T]ownship”
because even if the variance is denied, the Property cannot be used for agricultural
purposes. (Id. at 25-27 (emphasis omitted).)
Applicants maintain that, as the Board found, their requested relief is for a
dimensional variance since the use of the Property for a single-family dwelling is
permitted in the Agricultural Zone and point out that Township does not challenge
7
that determination herein. (Applicants’ Br. at 10.) Citing to Hertzberg, Applicants
argue they introduced ample evidence to support the Board’s decision to grant the
dimensional variance because numerous physical conditions exist on the Property
creating an unnecessary hardship such that it cannot be utilized in keeping with the
Ordinance. (Id. at 9, 11.) For example, the utility line cannot be avoided or tampered
with and to do so could lead to “monumental expense.” (Id. at 11-12.) Also,
purchasing additional dwelling rights from a third party is a rare occurrence which
would cause Applicants an undue burden, and denying the variance prevents them
from using their “remaining dwelling right in a way which is otherwise permitted by
right.” (Id. at 12-13.) Applicants stress that Township does not dispute the proposed
subdivision of the Property into two, approximate five-acre parcels would not be
detrimental to Applicants’ neighbors, who support the variance and live on similar
sized lots, and would not thwart the purpose of preserving agricultural land because
the soil is unsuitable for farming. (Id. at 6, 13.) Applicants assert they are not
responsible for the hardships they seek to ameliorate, and Township’s suggested
solutions are untenable, for “it is not possible to place a home, septic system, well[,]
and driveway on a lot of less than two acres as required by the [O]rdinance.” (Id. at
14.) Furthermore, because the Ordinance as it reads presently was not in effect when
Applicants purchased the Property, Applicants could not have known the utility line
easement would pose a future problem. (Id. at 16.) Finally, Applicants posit the
variance is the minimum necessary to afford relief. Township has recognized in a
written agreement providing for available dwelling rights that the Property is of low
quality for agricultural purposes and it is very difficult to purchase additional
dwelling rights in Township. (Id. at 17.)
8
A. Unique Physical Circumstances or Conditions Peculiar to the Property
and Unnecessary Hardship Due to Those Conditions
It is not disputed that farming is a permitted use in the Agricultural Zone;
however, it is also undisputed that the Property has not been farmed for decades due
to the vast wooded area and rocky soil on the Property. Mr. Hopkins testified that
neither he nor a neighbor who had expressed interest in farming the Property were
able to produce a profit doing so as a result of the rocky soil which prompted
Applicants to sell about 5.3 acres of the Property in 1990. At that time, Township
and Applicants entered into an agreement regarding dwelling rights pursuant to
which Applicants retained one remaining dwelling right for the Property, although
Applicant understood that he was allowed only one additional subdivision. (N.T.
Township Zoning Hearing, 2/17/22, at 9-11, 12-13, 23-24, R.R. at 134a-36a, 137a-
38a, 148a-49a.) Applicants now seek to subdivide and build a single-family
residence on the Property, another permitted use. While Zoning Officer testified he
believed it is possible to subdivide the Property within the parameters of the
Ordinance to do so, he also admitted that would require a minimum lot size of 2.25
acres as per DEP regulations and Applicants would need to account for the extra
0.25 acres “with a well or a groundwater recharge easement[,] which would have to
sit down slope below where their septic system is.” (R.R. at 169a.) Zoning Officer
further admitted that “with a fairly large house[,] their driveway[,] and all the
stormwater requirements, they need a primary and a backup septic site, well, by the
time you try to jam all that on two acres [] it gets tight[.]” (Id. at 172a.) Zoning
Officer stated that soil testing had not been completed and that could also affect the
outcome of developing the Property. (Id. at 173a.) Zoning Officer also admitted
that he understood why Applicants requested the Variance and “unfortunately” he
was not able to grant the Variance because “[his] hands are tied.” (Id. at 171a.)
9
1. Physical Conditions Prevent Development of the Property in
Strict Conformity with the Zoning Ordinance and Variance will
Effect a Reasonable Use of the Property
The Board heard testimony to support a finding that because of unique
physical conditions on the Property, including its lack of farmable acreage, the
existing wooded area, and the utility line easement, the Property cannot reasonably
be used in strict conformity with the Ordinance. As previously stated, Mr. Hopkins
testified regarding the inability to farm the Property, the purpose for which the
Agricultural Zone was created. (R.R. at 134a-36a.) He also discussed the fact that
about one-third of the Property is wooded and the utility line easement requires a
40-foot right-of-way that affects where a home may be built as well as the placement
of a septic system and utilities. (Id. at 146a-47a.) If the utility line is damaged
during construction, Mr. Hopkins believed the cost would be $48,000 per second.
(Id. at 151a.) Presently, the Property is open land blanketed with grass that needs to
be mowed and allows for some walking in the wooded area, although he described
such treks as “unpleasant.” (Id. at 148a-49a.).
2. Applicants Did Not Create the Necessary Hardship
The Board heard testimony from which it could find the existence of a
hardship attendant to the Property, which was not of Applicants’ creation. Yeager
v. Zoning Hearing Bd. of Cty. of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001).
Mr. Hopkins testified that he was not responsible for the layout of the Property. (Id.
at 147a.) In addition, he explained the unsuccessful steps he and his neighbor had
taken in the past to utilize the Property as farmland, and the manner in which the
utility line easement bisects the Property. In this regard, the trial court observed,
10
“[e]ach one-acre portion of the property is bisected and wooded”; [i]t seems that
limiting the proposed lot to just over two of the ten acres would require crafting a lot
from only the non-wooded portions of multiple acres impacting the positioning of
the home and leaving an oddly-shaped lot” as would Zoning Officer’s suggestion
that Applicants could subdivide two acres and lease the other three. (Op. at 22-23.)
Certainly, Applicants had no control over the wooded growth on the property or on
the placement of the utility line easement. Moreover, there is no evidence in the
record to support Township’s bald assertion that because they were the grantors
when the utility line easement was given, they “presumably” “receive[]
consideration for granting such a right.” (Township’s Br. at 21.) Thus, the Board
heard substantial evidence from which it could find this prong has been satisfied.
3. The Variance is not Detrimental to the Public Welfare
There is no dispute that as Mr. Hopkins and his neighbors testified, dividing
the Property into two approximately five-acre parcels, which the variance would
enable, conforms to the neighboring parcels, which are all of similar acreage. (R.R.
at 140a-41a.; Township’s Br. at 12.) Indeed, the testimony revealed the variance
would complement the lots and homes in the immediate neighborhood, which are
situate on lots that are approximately five acres or even more. (R.R. at 140a-46a.)
In addition, in their letter addressed to the Board titled “Neighborhood Endorsement
of the New Home Plan” and dated December 1, 2021, neighbors of Applicants stated
that they had “inspected the proposed lot,” “the architectural floor plans and artist[’]s
rendering of the home as well as a picture of the proposed home.” (R.R. at 270a.)
In urging the Board to grant the variance, Applicants’ neighbors indicated their
belief that the dwelling and its proposed placement on the five-acre lot would
11
conform to the neighborhood and “be an enhancement for [them] all.” (Id.) Thus,
this prong of the Hertzberg test has been satisfied.
4. The Variance is the Minimum Necessary to Afford Relief and is
the Least Modification of the Ordinance
Applicants sought a variance “to subdivide the existing parcel into one lot of
4.823 acres and one lot of 5.718 acres.” (Application ¶ d.; R.R. at 34a.) Mr. Hopkins
opined that the variance request was the minimum to provide him relief. (R.R. at
146a.) He felt that this was practical and was more in line with the character of the
neighborhood than, for example, requesting the Property be divided into a one-acre
lot and a nine acre-lot (Id. at 150a.) Mr. Sands’ testimony also spoke to the safety
aspects of building around the utility cable. After wheel-measuring the area and
allowing 1/3 of the 2.25 acres for the front yard of a single-family dwelling and 2/3
of the 2.25 acres for the backyard, the home would be located just 73 feet from the
road and close to the neighbor’s home on the eastern side of the Property. (Id. at
176a-78a.) Mr. Sands indicated he would not build a single-family dwelling home
without the variance, out of his concern that the placement of the home on the
Property would not comport with the placement of other homes in the neighborhood
and that a home built too close to the road would not be safe. (Id. at 178a.) As
previously discussed, the Board also heard the testimony of and considered the letter
signed by Applicants’ neighbors that dividing the Property into two, roughly equal
parcels of five acres each would complement their properties and even enhance the
neighborhood.
12
B. Analysis of the Hertzberg Factors
After a thorough review of the original record, the parties’ briefs and oral
argument, and the pertinent law, we find the cogent and well-reasoned opinion of
The Honorable N. Christopher Menges thoroughly and accurately reviewed the
Hertzberg factors and evidence offered in support thereof at the hearing before the
Board and concluded that there was sufficient evidence to support the Board’s
finding that Applicants have satisfied their burden of proof as to these factors and
decision to grant the variance. Accordingly, we adopt Judge Menges’ analysis and
reasoning with regard to the Hertzberg factors as our own.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hopewell Township, :
Appellant :
:
v. : No. 51 C.D. 2023
:
Hopewell Township Zoning Hearing :
Board :
:
v. :
:
James T. Hopkins, Jr. and :
Elsie P. Hopkins :
ORDER
NOW, January 3, 2024, the Order of the Court of Common Pleas of York
County, entered in the above-captioned matter, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge