J. Samar v. ZB of Upper Merion Twp. ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Samar, :
Appellant :
: No. 922 C.D. 2018
v. :
: Submitted: December 14, 2018
Zoning Board of Upper Merion :
Township :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 16, 2019
John Samar (Landowner) appeals, pro se, from the June 4, 2018 order of
the Court of Common Pleas of Montgomery County (trial court) denying his appeal
and affirming the decision of the Zoning Hearing Board of Upper Merion Township
(Board), which upheld a zoning enforcement notice finding Landowner in violation of
the Upper Merion Township Zoning Code (Zoning Code) and denied Landowner’s
request for a special exception and variance.
Facts and Procedural History
Landowner owns a property located at 116 Ivy Lane, King of Prussia,
Montgomery County, Pennsylvania. The property is in an area zoned C-O
(Commercial Office) under the Zoning Code, but maintains a preexisting
nonconforming use as a single-family dwelling. On May 24, 2017, Brian Sakal, a
building official of the Upper Merion Township Public Works/Safety and Codes
Department, issued Landowner a zoning enforcement notice alleging that he was in
violation of sections 165-5 and 165-96 of the Zoning Code1 by using his single-family
dwelling as an Airbnb/rooming house, which is not permitted in a C-O zoning district.
(Trial court op. at 1-2.)
Board Appeal and Hearing
On June 23, 2017, Landowner filed an appeal with the Board challenging
the building official’s determination regarding the use of his property. Alternatively,
Landowner sought a special exception under section 165-212 of the Zoning Code2 to
convert the single-family dwelling into a multi-family dwelling as well as a variance
from the requirements of section 165-96 to allow a multi-family use.
The Board conducted a public hearing on September 6, 2017, which
included testimony from Landowner and Sakal, the building official who issued the
May 24, 2017 zoning enforcement notice. At the beginning of the hearing, the Board’s
solicitor advised Landowner that the Board could not grant his request for a special
exception under section 165-212 of the Zoning Code, as subsection (c) of that section
requires a lot “to be two times the size of the minimum lot area in the zoning district”
and Landowner’s lot was “too small.” (R.R. at 99a.) Hence, the Board’s solicitor
advised Landowner to focus his testimony on the remaining issues in his appeal.
1
Section 165-5 of the Zoning Code addresses word usage and various definitions under the
Zoning Code. (Reproduced Record (R.R.) at 3a-24a.) Section 165-96 simply states that the
regulations that follow that section shall apply in the C-O zoning district. (R.R. at 25a.)
2
Section 165-212, entitled conversion of dwellings, permits the conversion of a single-family
dwelling into a two-family or multi-family dwelling, subject to several conditions which will be
discussed in greater detail below. (R.R. at 36a.)
2
Landowner responded that he was confused because the area was
originally zoned “R-3” and that he had made previous additions to the property in
accordance with “the requirements and setbacks for the R-3 zoning.” (R.R. at 99a-
100a.) The Board’s solicitor explained that the property was zoned C-O and that he
had a prior, nonconforming residential use on the property. Landowner noted that
following earlier improvements to the property, he was issued a certificate of
occupancy for an “R-3 residential use,” and alleged that he was not using the property
improperly. (R.R. at 103a.) Regarding his variance request, Landowner noted that the
Zoning Code permitted “multi-family residential use in the R-3 district.” (R.R. at
104a.) Further, Landowner stated that he found nothing in the Zoning Code which
prohibited him from using the property as an Airbnb rental.3 Id.
On cross-examination by the solicitor for Upper Merion Township
(Township), Landowner admitted that the use and occupancy permit that he referenced
stated that the property was located in a C-O zoning district and specifically limited his
property to a single-family residential use. Landowner also admitted that the prior
building permits he received for additions/improvements to the property included a
condition limiting the property to a single-family residential use. During one of these
3
Landowner also submitted written testimony to the Board describing the neighborhood in
which his property is located. (R.R. at 37a.) He described the property as being improved with a
two-story residential structure consisting of two apartments, each with separate entries, and a total of
four bathrooms and five bedrooms. Id. He noted that the structure was being used as a “short-term
residential rental.” Id. He addressed the previous additions/improvements to the structure and argued
that it did not meet the Zoning Code’s definition of a rooming house because he did not live at the
property and simply rented rooms. (R.R. at 38a.) He alleged that the property met the requirements
for a special exception under section 165-212 of the Zoning Code and that a multi-family residential
use is an approved use in the R-3 zoning district. (R.R. at 39a.) He noted that the short-term rental
use contributed to the local economy, improved the safety and welfare of the neighborhood, since the
property was occupied at nights and on weekends, did not alter the essential character of the
neighborhood, which consisted of mixed residential and commercial uses, and that the variance he
requested was the minimum necessary to afford relief. Id.
3
projects, Landowner acknowledged that he added a kitchen to a second-floor addition
without obtaining the necessary permits, thereby allowing the existing structure to be
occupied by two separate families. Landowner agreed that the structure was advertised
on Airbnb as two separate units accommodating less than 10 people, but indicated that
it was also marketed as a five-bedroom single unit capable of accommodating 12
people. Landowner noted that he did not use leases but instead relied on short-term
Airbnb agreements, which applied to any rental less than 30 days. (R.R. at 106a-11a.)
Landowner further acknowledged receipt of the May 24, 2017 zoning
enforcement notice. (R.R. at 112a.) When asked if he agreed that the property was not
being used for a single-family residential use, Landowner responded that he was “not
in dispute of any of this,” that he was “petitioning to get permission to use it,” and that
he acknowledged his “mistake of operating it the way [he] did.” Id. Upon questioning
by members of the Board, Landowner apologized for adding a second kitchen on the
second floor and essentially converting the structure to a multi-family use. (R.R. at
114a-16a.) Landowner also indicated that he owned a construction company, that he
did custom design/construction work for residential owners, and that he was familiar
with the permitting process. (R.R. at 116a-17a.) Landowner reiterated that he “was
wrong the way [he] proceeded” and that he was “going to correct it, and didn’t.” (R.R.
at 117a.)
Sakal confirmed that Landowner’s property was located in a C-O zoning
district. (R.R. at 120a.) He testified that the property was nonconforming as it was
originally intended as a single-family residential use. Id. However, he noted that the
property was currently being used as a nonconforming two-family dwelling, which was
not permitted. Id. He stated that he would classify an Airbnb rental as either a rooming
house or a hotel/motel under the Zoning Code, none of which were permitted in the C-
4
O zoning district. (R.R. at 121a.) He noted that the Zoning Code defined a rooming
house as “a dwelling in which sleeping accommodations are provided for fewer than
10 persons, whether or not serving meals is included” and that a hotel was defined in
the same manner but with 10 or more guests. Id.
On cross-examination by Landowner, Sakal could not point to a specific
section of the Zoning Code prohibiting short-term residential rentals. (R.R. at 123a.)
Instead, he stated that Airbnb rentals, hotels, and motels are not permitted in
Landowner’s district and that, generally, if a use is not specifically authorized in the
Zoning Code, then it is not permitted. Id. Sakal acknowledged that Landowner could
rent the structure as a single-family dwelling. (R.R. at 124a.)
Saleem Hasan, the owner/operator of a biomedical engineering business
next door to Landowner’s property, objected to the applications. (R.R. at 136a-37a.)
Hasan testified that his personal office was approximately 20 feet from the entrance to
the structure on Landowner’s property and he was exposed to excessive noise from
renters over the past year. (R.R. at 137a-38a.)
At the conclusion of the hearing, the Board voted unanimously to deny
Landowner’s appeal from the zoning enforcement notice and his requests for a special
exception and variance, and directed Landowner to remove the second-floor kitchen
within 30 days. (R.R. at 140a-41a.)
Board Decision
The Board mailed Landowner a written decision on October 5, 2017. The
Board found that Landowner’s property is located in a C-O zoning district, in which a
residential use is not permitted. (Findings of Fact Nos. 2, 3.) The Board noted that
Landowner’s property contained a lawful, nonconforming, single-family detached
5
dwelling. (Finding of Fact No. 3.) The Board stated that Landowner converted this
single-family detached dwelling into a two-family Airbnb rooming house by adding a
second kitchen and creating two separate units, without obtaining necessary Township
approval or permits. (Finding of Fact No. 4.)
The Board indicated that Landowner did not request a dimensional
variance even though the property does not meet the dimensional standards for
conversion to a two-family dwelling. (Finding of Fact No. 8.) The Board then noted
the definition of a rooming house under section 165-5 of the Zoning Code, and that
Landowner had not requested relief to operate a rooming house on his property.
(Findings of Fact Nos. 10, 11.)
With respect to Landowner’s appeal from the zoning enforcement notice,
the Board cited to its jurisdiction under section 909.1(a)(3) of the Pennsylvania
Municipalities Planning Code (MPC),4 which states,
The zoning hearing board shall have exclusive jurisdiction to
hear and render final adjudications in the following matters:
...
(3) Appeals from the determination of the
zoning officer, including, but not limited to, the
granting or denial of any permit, or failure to act
on the application therefor, the issuance of any
cease and desist order or the registration or
refusal to register any nonconforming use,
structure or lot.
53 P.S. §10909.1(a)(3).5 The Board noted that the zoning enforcement notice
identified the violation as the use of an existing single-family dwelling as an Airbnb
4
Act of July 31, 1968, P.L. 805, as amended, added by Section 87 of the Act of December
21, 1988, P.L. 1329, 53 P.S. §10909.1(a)(3).
5
See Board op. at 10-11; R.R. at 53a-54a.
6
rooming house, which was not permitted in the C-O zoning district, and directed
Landowner to return to the single-family use and to remove the second-floor kitchen.
(R.R. at 54a.) The Board also noted that Landowner admitted that he installed the
second kitchen without the necessary permits and that he needed to obtain zoning relief
to add a second dwelling unit to the property. Id. Based on the evidence presented at
the hearing, including Landowner’s admissions, the Board found that Landowner was
using his property in violation of the Zoning Code and, hence, the denial of his appeal
from the zoning enforcement notice was proper. (R.R. at 55a.)
With respect to Landowner’s request for a special exception, the Board
reiterated the requirements under section 165-212 of the Zoning Code and noted that
Landowner’s property did not meet the same. (R.R. at 56a-57a.) Specifically, the
Board cited section 165-212 of the Zoning Code, entitled “Conversion of dwellings,”
which provides as follows:
A single-family detached dwelling existing on the effective
date of this chapter may be converted into and used as a two-
family or multifamily dwelling when authorized as a special
exception, provided that:
A. The plans for the conversion of said dwelling shall be
submitted to the Zoning Hearing Board.
B. Such plans shall provide adequate and suitable parking or
storage space, at a safe distance from the public highway,
for not less than one automobile per family.
C. Such dwelling shall be subject to the height, area, width
and yard regulations effective in the district wherein such
dwelling is situated, except that there shall be a lot area
of not less than the product of the minimum lot area
prescribed in the district regulations and the number
of families for the use of which such dwelling is to be
converted.
7
D. There shall be no external alteration of the building
except as may be necessary for reasons of safety, and fire
escapes and outside stairways shall, where practicable, be
located to the rear of the building.
E. The Zoning Hearing Board shall specify the maximum
number of families permitted to occupy such dwelling
and may prescribe such further conditions and restrictions
with respect to the conversion and use of such dwelling
and to the use of the lot as the Board may consider
appropriate.
(R.R. at 56a-57a) (emphasis added). The Board stated that the minimum lot area in the
C-O zoning district was 20,000 square feet, thereby requiring Landowner’s lot to be
40,000 square feet (twice the size of the minimum lot area), but that said lot was
“undersized” at only 10,748 square feet. (R.R. at 57a.) Additionally, the Board
indicated that Landowner failed to submit any plans for conversion of his dwelling or
any plans demonstrating “adequate and suitable parking or storage areas, at a safe
distance from the public highway, for not less than one automobile per family.” (R.R.
at 58a.)
With respect to Landowner’s request for a use variance, the Board cited
the traditional variance requirements under section 910.2(a) of the MPC,6 namely
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness, or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the
particular property and that the unnecessary hardship is
due to such conditions and not the circumstances or
conditions generally created by the provisions of the
zoning ordinance in the neighborhood or district in which
the property is located.
(2) That because of such physical circumstances or
conditions, there is no possibility that the property can be
6
Added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2(a).
8
developed in strict conformity with the provisions of the
zoning ordinance and that the authorization of a variance
is therefore necessary to enable the reasonable use of the
property.
(3) That such unnecessary hardship has not been created by
the appellant.
(4) That the variance, if authorized, will not alter the
essential character of the neighborhood or district in
which the property is located, nor substantially or
permanently impair the appropriate use or development
of adjacent property, nor be detrimental to the public
welfare.
(5) That the variance, if authorized, will represent the
minimum variance that will afford relief and will
represent the least modification possible of the regulation
in issue.
53 P.S. §10910.2(a)(1)-(5).7 The Board stated that Landowner failed to prove that there
were any unique physical circumstances or conditions peculiar to the property, or that
the requested variance was necessary for the reasonable use of the property. (R.R. at
59a.) The Board noted the lack of any evidence that an unnecessary hardship existed
on the property, that the property could not be used for its permitted single-family
dwelling use, or that the property had no value, or only distress value. (R.R. at 60a.)
The Board explained that Landowner’s desire to convert the property into a two-family
dwelling, thereby doubling the number of units available for rent, was “legally
insufficient to entitle Landowner to the requested use variance.” Id. The Board held
that Landowner failed to prove that the requested use variance was the minimum
necessary to afford relief, stressing that the property could be used for its permitted
purpose. (R.R. at 61a.) To the extent that any hardship existed, the Board indicated
7
See R.R. at 58a.
9
that it was self-created by Landowner by adding the second kitchen and marketing the
property as a two-unit Airbnb rental. Id.
Based upon the above findings, the Board concluded that Landowner was
operating his property in violation of the Zoning Code; Landowner failed to meet the
requirements for a special exception to convert his property into a multi-family
dwelling under section 165-212 of the Zoning Code; a use variance is not necessary to
permit a reasonable use of the property; any alleged hardship was self-created by
Landowner; and Landowner failed to demonstrate that the requested use variance
represented the minimum necessary to afford relief. (Board’s Conclusions of Law Nos.
8-12.)
Appeal of Board’s Decision
Landowner originally filed a land use appeal with the trial court on
October 5, 2017, the same day that the Board mailed its written decision. However,
Landowner filed an amended appeal on October 25, 2017.8 The trial court heard oral
argument on May 25, 2018. By order dated June 4, 2018, the trial court denied
Landowner’s appeal and affirmed the Board’s order in its entirety. Landowner then
filed a notice of appeal with this Court. Upon direction by the trial court, Landowner
8
On November 21, 2017, the Board and the Township filed a joint motion seeking to
quash/dismiss Landowner’s appeal on the basis that he failed to appeal the Board’s written decision
and consistently sought to appeal the Board’s decision entered at the conclusion of the hearing on
September 6, 2017. By order dated March 12, 2018, the trial court denied the motion. (Supplemental
Reproduced Record (S.R.R.) at 437b.) In their joint brief, the Board and the Township urge this Court
to reconsider this jurisdictional question and quash and/or dismiss Landowner’s appeal. We decline
to do so. Landowner timely filed an amended appeal with the trial court on October 25, 2017, in
response to the Board’s written decision. The fact that Landowner, who was acting pro se,
mistakenly referenced his appeal as being from the Board’s September 6, 2017 decision is not a
sufficient reason to justify quashing and/or dismissing said appeal.
10
filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
The trial court subsequently issued an opinion in support of its order in
accordance with Pa.R.A.P. 1925(a). In its opinion, the trial court first addressed the
Board’s denial of Landowner’s appeal from the zoning enforcement notice. While
Landowner raised five separate arguments in his 1925(b) statement as to how the trial
court erred,9 the trial court noted that only one of these issues, i.e., whether the Board
erred in concluding that Landowner was operating a rooming house, was raised before
the Board. The trial court explained that the property was designated for a
nonconforming single-family residential use, yet Landowner was operating a two-unit
Airbnb/rooming house on the property, which violated the Zoning Code. The trial
court cited the definition of a “rooming house” under the Zoning Code noted above
and the definition of “family” under section 165-5 of the Zoning Code, which
“specifically excludes individuals and groups occupying a boarding or rooming
house.” (Trial court op. at 7.)
The trial court next addressed the Board’s denial of Landowner’s request
for a special exception. The trial court stated that the Board properly concluded that
Landowner failed to demonstrate compliance with the objective criteria and
prerequisites for conversion of the existing single-family dwelling. The trial court
9
Specifically, Landowner alleged that the trial court erred in affirming the Board’s decision
because (1) the Board held a building code enforcement hearing for the building official and not a
zoning use determination hearing for the zoning officer; (2) he was not operating a rooming house as
the Board concluded; (3) the Board did not follow the clear mandate of section 909.1 of the MPC
regarding hearing appeals of zoning officer determinations; (4) the wording of the enforcement notice
letter did not match the stated zoning code violation cited in the Board’s decision; and (5) the
enforcement notice did not follow the clear mandate of section 616.1 of the MPC, added by the Act
of December 21, 1988, P.L. 1329, 53 P.S. §10616.1, relating to the standard for issuing enforcement
notices.
11
noted that section 165-212(c) of the Zoning Code mandates that a converted dwelling
“shall be subject to the height, area and width and yard regulations effective in the
district wherein such dwelling is situated.” (S.R.R. at 280b.) Since the property was
located in the C-O zoning district, the trial court noted that the minimum required lot
area would be 20,000 square feet under section 165-99 of the Zoning Code, but that
Landowner’s property was required to be 40,000 square feet because he was proposing
two dwelling units. This is because section 165-212(c) requires the minimum lot area
of a converted dwelling to be “not less than the product of the minimum lot area
prescribed in the district regulations and the number of families for the use of which
such dwelling is to be converted.” Id. The trial court indicated that Landowner’s
property here only consisted of 10,748 square feet and he did not offer any contrary
evidence or seek a dimensional variance at the Board hearing.
Finally, the trial court addressed the Board’s denial of Landowner’s
request for a use variance. After citing the traditional requirements for a variance under
section 910.2(a) of the MPC and noting that the failure to satisfy any one of these
requirements requires denial of a variance, the trial court stated that Landowner
admitted to installing a second kitchen on the second floor of the property knowing
that he did not have a permit to do so and knowing that his use and occupancy permit
specifically conditioned the use of the property as a single-family residential dwelling.
The trial court stressed that Landowner was in the construction business, was familiar
with the permitting process, and acknowledged that he knew what he did was wrong.
Hence, the trial court indicated that the Board properly found that any hardship was
self-created by Landowner and, hence, he could not meet all of the requirements for a
variance.
12
Discussion
On appeal,10 Landowner reiterates the arguments he raised before the trial
court, i.e., that the Board erred in upholding the zoning enforcement notice finding him
in violation of the Zoning Code and erred in denying his requests for a special
exception and variance.
Zoning Enforcement Notice
Similar to his appeal to the trial court, Landowner raises a number of
issues that he never raised before the Board. Specifically, Landowner reiterates the
Board’s alleged errors regarding the fact that the zoning enforcement notice was issued
by a building official and not the zoning officer; the Board did not follow the proper
procedure for hearing appeals of zoning officer determinations; and the Board
misrepresented the zoning code violation for which he was cited. Landowner also
raises an entirely new issue alleging that the Board violated his constitutional rights by
restricting a legal land use with wording that does not exist in the Zoning Code.
However, none of these issues were raised before the Board. Hence, as the trial court
properly noted, these issues have been waived and will not be addressed on appeal. An
issue must be raised before the Board in order to preserve it for appeal. Poole v. Zoning
Board of Adjustment, 10 A.3d 381 (Pa. Cmwlth. 2010) (holding that issues raised for
the first time on appeal before the common pleas court are waived).
The only issue that Landowner properly raised and preserved below is
whether his use of the property constituted a rooming house in violation of the Zoning
10
Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the Board committed an abuse of discretion or an error of law. Hamilton
Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth.
2010).
13
Code. Given the definitions contained within the Zoning Code, coupled with the
Zoning Code’s lack of a definition of the term “Airbnb,” we must agree with
Landowner that the trial court erred in denying his appeal of the zoning enforcement
notice. Landowner’s use of his property as an Airbnb simply did not violate the Zoning
Code in effect at the time of the purported violation.11
Landowner was issued the zoning enforcement notice for operating an
Airbnb/rooming house under section 165-5 of the Zoning Code. This section sets forth
the definitions of the terms used therein. Under this section, a “house, rooming” is
defined as “[a] dwelling in which sleeping accommodations are provided for fewer
than 10 persons, whether or not serving meals is included.” (R.R. at 12a) (emphasis
added). However, this same section defines a “dwelling” as “[a] building designed
for and occupied exclusively for residence purposes, excluding hotel, rooming house,
tourist home, institutional home, residential club, automobile court and the like.” (R.R.
at 8a) (emphasis added). Thus, a dwelling cannot be a rooming house and a rooming
house cannot be a dwelling under the Zoning Code. In other words, the terms are
mutually exclusive. The ordinance does not contain any definition of “Airbnb,” nor is
it referenced anywhere in the ordinance.
“The issue of whether a proposed use falls within a given category of
permitted use in a zoning ordinance is a question of law, subject to this Court’s review.”
Caln Nether Co., L.P. v. Board of Supervisors, 840 A.2d 484, 491 (Pa. Cmwlth. 2004).
“In considering this issue, we are mindful that ordinances are to be construed
expansively, affording the landowner the broadest possible use and enjoyment of its
land.” Id. Moreover, “[A]ny ambiguity and conflict in the language of an ordinance
11
We note that Landowner was never cited for improperly converting his property from a
single-family use to a multi-family use. The zoning enforcement notice was limited to Landowner’s
improper use of his property as an Airbnb/rooming house.
14
must be resolved in favor of the landowner and the least restrictive use of the land.”
Reihner v. City of Scranton Zoning Hearing Board, 176 A.3d 396, 400 (Pa. Cmwlth.
2017).
Furthermore, this Court has repeatedly cautioned zoning hearing boards
against attempts to shoe-horn a new, unanticipated use, particularly for a new form of
economic activity occurring in a single-family home, into an existing defined term of
a local zoning ordinance. See Reihner (reversing a notice of violation issued to
landowners for purportedly operating a bed and breakfast at their home); Shvekh v.
Zoning Hearing Board, 154 A.3d 408 (Pa. Cmwlth. 2017) (reversing an enforcement
notice issued to landowners for purportedly operating a tourist home at their property);
Marchenko v. Zoning Hearing Board of Pocono Township, 147 A.3d 947 (Pa. Cmwlth.
2016) (reversing a notice of violation issued to landowner for purportedly operating a
vacation rental and/or lodge at her residence). In Reihner and Shvekh, we explained
that the internet, and Airbnb in particular, has expanded the possible uses of a single-
family dwelling and that local municipalities can address these new uses by updating
their respective local ordinances.
In the present case, the Zoning Code does not specifically prohibit
Landowner from renting out his property as an Airbnb. Indeed, this term is not defined
anywhere in the Zoning Code. The attempt by Sakal, the local building official, to
shoe-horn Landowner’s use into an impermissible rooming house use under the Zoning
Code fails for the reasons set forth above. It is incumbent upon the Township to update
its Zoning Code to specifically address this new use by Landowner and potentially
other property owners within its jurisdiction.
15
Special Exception
Next, we address whether the Board erred in denying Landowner’s
request for a special exception. We agree with the trial court that the Board properly
concluded that Landowner failed to demonstrate compliance with the objective criteria
and prerequisites for conversion of the existing single-family dwelling.
However, before we reach the merits of this argument, we note that
Landowner argues that the Board violated his constitutional rights by failing to
convene a special exception hearing and making specific findings of fact relative to
said exception; erred in concluding that he never requested a dimensional variance; and
exhibited hostility and bias throughout the course of the hearing. These arguments lack
merit. The Board declined to proceed with further proceedings relating to Landowner’s
special exception request because it was clear, as will be discussed below, that he could
not meet the requirements for the same. Additionally, there is nothing in the record
indicating that Landowner ever requested a dimensional variance. Further, a review of
the transcript from the Board’s hearing reveals no evidence of any hostility or bias
towards Landowner.
Turning to the merits, at the outset of the Board hearing, the Board
solicitor advised Landowner to focus his arguments on the zoning enforcement notice
and request for a variance because the Board could not grant his request for a special
exception under section 165-212 of the Zoning Code. The solicitor explained that
subsection (c) of that section requires a lot “to be two times the size of the minimum
lot area in the zoning district” and that Landowner’s lot was simply “too small.” (R.R.
at 99a.) As the Board later explained in its written decision, section 165-212(c)
specifically provides that when a property owner seeks to convert a single-family
dwelling into a two-family or multi-family dwelling,
16
Such dwelling shall be subject to the height, area, width
and yard regulations effective in the district wherein such
dwelling is situated, except that there shall be a lot area
of not less than the product of the minimum lot area
prescribed in the district regulations and the number
of families for the use of which such dwelling is to be
converted.
(S.R.R. at 280b) (emphasis added).
Since Landowner’s property was located in a C-O zoning district and he
sought to convert the dwelling into two units, the Board properly noted that
Landowner’s property had to consist of 40,000 square feet. Section 165-99 of the
Zoning Code provides that the minimum required lot area in the C-O zoning district is
20,000 square feet. Because Landowner was proposing two dwelling units, he was
required to have a lot twice that size, or 40,000 square feet. However, Landowner’s
lot did not meet this requirement because it only consisted of 10,748 square feet.
Moreover, as the Board indicated, Landowner failed to submit any plans for conversion
of his dwelling or any plans demonstrating “adequate and suitable parking or storage
areas, at a safe distance from the public highway, for not less than one automobile per
family.” (R.R. at 58a.) Thus, Landowner could not meet the requirements of section
165-212 of the Zoning Code and the Board did not err in denying his request for a
special exception.
Variance
Finally, we address whether the Board erred in denying Landowner’s
request for a variance.12 Once more, we agree with the trial court that the Board
12
Landowner argues that the Board violated his constitutional rights by failing to convene a
variance hearing. However, this argument is meritless. The Board conducted a public hearing in
relation to Landowner’s requested variance and provided him with a full opportunity to present
witnesses and evidence in support of his request.
17
properly concluded that any purported hardship relating to the property was self-
created by Landowner and, hence, he could not meet all of the requirements for a
variance.
The Board noted the requirements for a variance under section 910.2(a)
of the MPC were not met here, including the need for there to be “unique physical
circumstances or conditions” of the property precluding any “possibility that the
property can be developed in strict conformity with the provisions of the zoning
ordinance,” and that any unnecessary hardship was not created by the property owner
himself. Additionally, a variance is appropriate “only where the property, not the
person, is subject to hardship.” Yeager v. Zoning Hearing Board of Allentown, 779
A.2d 595 598 (Pa. Cmwlth. 2001). Unnecessary hardship can be demonstrated by
showing that,
(1) the physical characteristics of the property are such that
it could not be used for a permitted use; (2) that the physical
characteristics could only meet the requirements established
for a permitted use at a prohibitive expense; or (3) that the
characteristics of the area were such that the lots had either
little or no value for any permitted use.
Beecham Enterprises, Inc. v. Zoning Hearing Board, 556 A.2d 981, 986 (Pa. Cmwlth.
1989). However, where the asserted hardship simply amounts to a property owner’s
desire to increase profitability or maximize development potential, the unnecessary
hardship criterion required to obtain a variance is not satisfied. Society Hill Civic
Association v. Philadelphia Zoning Board of Adjustment, 42 A.3d 1178, 1187 (Pa.
Cmwlth. 2012).
In the present case, Landowner failed to offer any testimony relating to a
hardship, let alone the unnecessary hardship required for a variance. Landowner
admitted to adding a kitchen to the second floor of the dwelling on the property and to
18
advertising the rental of the same as two units, which, as noted above, constituted a
violation of the Zoning Code. Hence, as the trial court indicated, any hardship here
was created by Landowner himself. The dwelling on the property constitutes a
nonconforming single-family residential use in the C-O zoning district. Landowner
failed to establish that such permitted use of the dwelling could not continue or that
utilizing the dwelling in such a manner was prohibitively expensive. Nor did
Landowner establish that the property had no value or distressed value. To the
contrary, in requesting a variance, Landowner merely sought to “ratify his intentional
and illegal conversion of a single-family detached dwelling into a two-family detached
dwelling and to double the number of dwelling units for rent on the [property],” only
to increase the profitability of said conversion. (Board’s Brief at 33-34.) For these
reasons, the Board did not err in denying his request for a variance.
Conclusion
The evidence of record before the Board established that Landowner was
using the single-family residential dwelling on his property as an Airbnb/rooming
house. However, such a use is not specifically prohibited in a C-O zoning district and
could not serve as a basis to find that Landowner violated the Zoning Code. Hence,
the Board erred in upholding the zoning enforcement notice. However, because the
limited lot size of Landowner’s property precludes the conversion of the dwelling
thereupon from a single-family to a two-family or multi-family dwelling, the Board
did not err in denying Landowner’s request for a special exception. Likewise, because
Landowner failed to establish any unnecessary hardship relating to the property, and
any purported hardship was self-created by Landowner, the Board did not err in
denying his request for a variance.
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Accordingly, the order of the trial court is reversed insofar as it upheld the
zoning enforcement notice finding Landowner in violation of the Zoning Code. In all
other respects, the trial court’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Samar, :
Appellant :
: No. 922 C.D. 2018
v. :
:
Zoning Board of Upper Merion :
Township :
ORDER
AND NOW, this 16th day of April, 2019, the order of the Court of
Common Pleas of Montgomery County (trial court), dated June 4, 2018, to the extent
that it upheld the zoning enforcement notice finding John Samar in violation of the
Upper Merion Township Zoning Code, is reversed. In all other respects, the trial
court’s order is affirmed.
The request of the Zoning Board of Upper Merion Township and Upper
Merion Township to quash/dismiss Samar’s appeal is denied.
________________________________
PATRICIA A. McCULLOUGH, Judge