N.J. Pugliese v. ZHB of Bethlehem Twp. ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas J. Pugliese, :
Appellant :
:
v. : No. 2297 C.D. 2014
: Submitted: September 17, 2015
Zoning Hearing Board of :
Bethlehem Township :
:
v. :
:
Hariton Parashos :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: October 15, 2015
In this zoning appeal, Nicholas J. Pugliese (Applicant), a real estate
developer, asks whether the Court of Common Pleas of Northampton County (trial
court) erred in affirming a decision of the Zoning Hearing Board of Bethlehem
Township (ZHB) that denied his request for a dimensional variance from the
minimum lot width requirement in the Bethlehem Township Zoning Ordinance
(zoning ordinance). Applicant argues the ZHB erred in denying his dimensional
variance request where he satisfied all the applicable requirements. Alternatively,
he asserts the ZHB erred in denying his request for a de minimis variance. Upon
review, we affirm.
I. Background
Applicant owns a 42,000-square foot undeveloped parcel (property)
that lies in Bethlehem Township’s (Township) rural residential (RR) zoning
district. The property is located on Country Club Road near the intersection of
Knollcroft Avenue. Applicant obtained title to the property in 1998. The property
is 240 feet in width and 175 feet in depth.
Applicant seeks to “re-subdivide” the property to create two
contiguous substandard lots that are each 120 feet in width and 175 feet in depth.
ZHB Op., 3/26/14, at 1. Applicant proposes to construct a home on each of the
newly created lots. If re-subdivision were permitted, each lot would consist of a
substandard configuration because the zoning ordinance requires a minimum lot
width of 125 feet rather than the proposed 120 foot width.
In January 2014, Applicant filed an application with the ZHB seeking
a variance from the zoning ordinance’s 125-foot minimum lot width requirement to
permit the creation of two lots, each with a width of 120 feet. Applicant indicated
that if he received the requested variance relief, he would seek the necessary
approval to subdivide the property into two lots.
The ZHB held a hearing on Applicant’s request. Applicant testified
on his own behalf and presented the testimony of Eugene Weber, P.E. (Applicant’s
Engineer). Several neighboring objectors appeared in opposition to Applicant’s
request. After the hearing, the ZHB issued a decision in which it made the
following relevant findings.
2
In support of his application, Applicant asserted the grant of a five-
foot width variance for each lot represented a de minimis deviation from the zoning
ordinance’s minimum lot width requirement. As such, the variance would not
substantially or permanently injure the appropriate use of adjacent, conforming
properties. Applicant further testified he would suffer a hardship that he did not
create if the ZHB denied relief. Specifically, the property is adjacent to State
Route 33, which generates significant noise, and it also lies next to a Township
septic system pumping station, which creates odors. Applicant asserted no one
would purchase an expensive residence on such a lot; therefore, from an economic
standpoint, Applicant believed it necessary to construct two less expensive homes
on the property.
Notably, Applicant confirmed that the 42,000 square foot property can
be developed in compliance with all of the requirements of the zoning ordinance.
He could not offer any reason why creation of two substandard lots was necessary
other than for purely economic reasons.
At the ZHB’s request, its solicitor performed a title search for the
property, which revealed the existence of several impediments to re-subdivision.
In particular: (1) a prior subdivision plan states the property may not be further
subdivided without the approval of the property’s prior owners, and no such
approval was presented to the ZHB; (2) Pennsylvania Power and Light maintains
an easement over the property and Applicant’s plan does not reflect the existence
of this easement; and, (3) a 50-foot gas line easement for underground
3
transportation of petroleum products exists in favor of Interstate Energy Company,
which was never released.
For their part, several neighboring objectors maintained that creation
of two substandard lots would decrease the value and use of their properties, and
the construction of inexpensive homes would alter the essential character of the
neighborhood.
Based on the evidence presented, the ZHB determined Applicant did
not explain why he could not construct a single-family home on the property that
complied with the zoning ordinance. In actuality, the ZHB stated, there were no
unique physical conditions or circumstances that precluded compliance with the
zoning ordinance. Thus, the ZHB determined the property could be developed in
conformity with the zoning ordinance, and no variance was necessary to enable
reasonable use of the property because a residence similar to other residences in
the neighborhood could be built on the property without any zoning relief.
The ZHB further determined Applicant himself created any hardship
as he knew of the lot configuration and the property’s location next to a highway
and septic system pumping station. The ZHB also found the grant of a variance
would alter the essential character of the neighborhood, which is comprised of
single-family homes on compliant lots. Additionally, the ZHB determined the
variance sought was not the minimum variance that would afford relief.
4
As to Applicant’s assertion that a de minimis variance was
appropriate, the ZHB stated, among other things, that the 10-foot deviation
Applicant sought, in the form of two separate, five-foot dimensional variances was
significant when compared to those de minimis deviations permitted by
Pennsylvania appellate courts. The ZHB further stated Applicant could build a
single-family home on the property without the need for any zoning relief. Thus,
the ZHB denied Applicant’s request for a dimensional variance from the zoning
ordinance’s lot width requirements, and, in the alternative, Applicant’s request for
a de minimis variance. Applicant appealed to the trial court.
Without taking additional evidence, the trial court affirmed. The trial
court determined Applicant did not establish any of the criteria necessary to obtain
a variance. Specifically, the trial court stated, Applicant’s claim of hardship lacked
merit because there were no unique physical circumstances of the property that
would prevent Applicant from developing it in conformity with the zoning
ordinance. Further, Applicant could not prevail even under the relaxed standard
set forth in Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721
A.2d 43 (Pa. 1998), for the grant of a dimensional variance because mere evidence
that Applicant would obtain a greater profit if the variance were granted was
insufficient to prove hardship.
In addition, the trial court determined substantial evidence supported
the ZHB’s findings that any hardship was self-created, and that the grant of the
variance would alter the essential character of the neighborhood. Finally, the trial
court determined, despite the apparent de minimis nature of the requested variance,
5
the ZHB was not required to grant the requested variance on the ground that the
deviation sought was minor. Rather, such a decision was a matter within the
ZHB’s discretion, and, as a result, the trial court would not substitute its judgment
for the ZHB on this issue.
Applicant appealed to this Court, and the trial court directed him to
file a concise statement of the errors complained of on appeal, which he did. The
trial court then issued a brief opinion pursuant to Pa. R.A.P. 1925(a) in which it
explained that it addressed the issues raised in Applicant’s statement in its prior
opinion, with the exception of one issue. Specifically, the trial court stated, to the
extent Applicant asserted the ZHB improperly relied on a title search for the
property performed by its solicitor, the results of that search had no bearing on the
ZHB’s supported determination that Applicant did not prove it was entitled to
variance relief. This matter is now before us for disposition.1
II. Issues
On appeal,2 Applicant argues the ZHB erred in denying his
dimensional variance request where he satisfied all the requirements necessary to
obtain a dimensional variance. Alternatively, he contends the ZHB erred in
1
Objector Hariton Parashos was precluded from filing a brief or participating in oral
argument. No other neighboring objectors filed briefs. Applicant and the ZHB filed briefs with
this Court.
2
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).
6
denying his request for a de minimis variance where he seeks only a minor
deviation from the zoning ordinance.
A. Dimensional Variance
1. Contentions
Applicant first argues the ZHB erred in denying his dimensional
variance request. Section 275-34 of the zoning ordinance governs the lot and
setback requirements in the RR district. Section 275-34(C) states, as pertinent:
“Minimum lot width: 125 feet at the minimum front yard setback line ….” Id.;
Reproduced Record (R.R.) at 28. Applicant contends he sought a dimensional
variance to allow the division of the property into two separate plots. He asserts he
sought a five-foot variance from the 125-foot lot frontage requirement for each of
the two proposed, newly created lots.
Applicant maintains the burden of proving hardship is relaxed under
Hertzberg where, as here, an applicant seeks only to deviate from a zoning
ordinance’s dimensional requirements. Under Hertzberg, courts may consider
multiple factors in determining whether an applicant established unnecessary
hardship for a dimensional variance, including: “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. Applicant
maintains that, although a variance applicant must show unnecessary hardship will
result if the variance is denied and the proposed use is not contrary to the public
interest, he need not show the property cannot be used for any other permitted use
7
in order to show unnecessary hardship where only a dimensional variance is
sought.
a. Hardship
Applicant argues that before the ZHB he presented the testimony of
his Engineer in support of the requested variance. Applicant’s Engineer explained
the property abuts the right-of-way of State Route 33 and is surrounded by homes
on half-acre lots. The property is vacant and has remained vacant for an extended
period. A sewer authority pump station abuts the property to the north.
Applicant’s Engineer explained the property has a unique physical
circumstance in that, while the proposed, newly created lot widths are just shy of
that required by the zoning ordinance, the property is exactly 42,000 square feet,
which indicated to him that the intent was to create two lots each with an area of
exactly 21,000 square feet, the minimum lot size required in the RR district.
Applicant’s Engineer further testified it was his understanding that
Applicant purchased the property with the intent of developing two parcels.
Applicant’s Engineer testified that if two lots were placed on the property, the
property could not be developed in strict conformity with the zoning ordinance.
He further explained the hardship was not self-created, and the deviation sought,
five feet for each proposed lot, represents the minimum relief available in order to
build the two homes. Further, although Applicant’s Engineer testified the subject
property could be developed in compliance with the zoning ordinance as it
currently exists, with a single home on a single lot, he noted the relief requested
8
was so de minimis that Applicant would suffer unnecessary hardship if the ZHB
denied the variance.
Applicant argues his testimony explained that the property lies near
State Route 33 and, as a result, noise generated by the highway greatly reduces its
value. The property is also located next to a disposal plant and pumping station,
which is an eyesore and emanates foul odors. Applicant also testified that when he
purchased the property, State Route 33 was not completed, and he was unaware it
could be extended or of the noise it would create. Applicant could not recall if the
pumping station existed when he purchased the property. Applicant further
testified the requested variance would alleviate a financial hardship, explaining
that, with the proximity of the highway and the pumping station, it would be
impossible to sell a more expensive single home; however, selling two less
expensive homes was possible.
Applicant points out that he purchased the property for $50,000, and
he invested approximately $85,000 to $90,000 into it. He explained that, as it
stands, the property is one acre and he could not “get $500,000 or anything for it.”
R.R. at 86.
Applicant contends his testimony and the testimony of his Engineer
establish that he is seeking a dimensional variance, which is a mere five feet for
each proposed lot, or 10 feet of total frontage on Country Club Road. Given that
this request involves a dimensional variance, the relaxed hardship standard applies.
Applicant argues his testimony, coupled with the testimony of his Engineer,
9
reveals the property contains unique physical conditions and the unnecessary
hardship is caused by those conditions.
b. Adverse Community Impact
Applicant next argues, despite the testimony of the neighboring
objectors, the record reveals the requested variance would not alter the essential
character of the neighborhood, nor would it substantially impair the appropriate
use or development of adjacent property or be detrimental to the public welfare.
Applicant asserts that, although one of the objectors testified the value of his
property would decrease if Applicant’s proposal were approved, the objector
presented no evidence to substantiate that claim. Further, while the same objector
explained that it would be a totally different neighborhood if two homes were
placed next to each other on the property, he presented no evidence to support this
claim.
As to the proposed construction, Applicant’s Engineer testified that if
the variance were granted, Applicant would have to proceed before the planning
commission and any construction would be required to meet any and all
requirements, including setback requirements in the zoning district. Applicant’s
Engineer also testified the homes Applicant proposes to build would not alter the
essential character of the neighborhood. The homes would not “stick out,” would
not cause any problems, would meet the setback and other requirements, would be
of good quality and would be a good fit for the neighborhood. R.R. at 59.
Thus, Applicant argues the ZHB erred in finding that the grant of the
variance would be contrary to the public interest or that the essential character of
10
the neighborhood would be altered if the variance was granted. Applicant asserts
the record lacks substantial evidence to support this finding. Rather, all of the
evidence shows the character of the neighborhood would remain unchanged, and
there would be no negative impact on the objectors’ properties or the public
interest.
c. Substantial Evidence
Applicant further maintains the ZHB’s findings are not supported by
substantial evidence. He argues the ZHB’s findings regarding the objectors’
concerns are not supported by evidence, but rather the objectors’ mere opinions
and general assertions as to the impact on the neighborhood that would occur as a
result of the proposed construction. Applicant, on the other hand, presented
evidence as to its proposal, which was sufficient to establish its right to the
requested variance. Applicant further contends a review of the transcript of the
ZHB hearing reveals the ZHB believed it was somehow precluded from granting
the requested variance under any circumstances, despite the fact that Applicant
presented sufficient evidence to justify the grant of a dimensional variance.
2. Analysis
Initially, we note, this Court may not substitute its interpretation of the
evidence for that of the ZHB. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873
A.2d 807 (Pa. Cmwlth. 2005). It is the function of a ZHB to weigh the evidence
before it. Id. The ZHB is the sole judge of the credibility of witnesses and the
weight afforded their testimony. Id. Assuming the record contains substantial
evidence, we are bound by the ZHB’s findings that result from resolutions of
credibility and conflicting testimony. Id.
11
A ZHB may grant a variance when the following criteria are met:
(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-Cnty. 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); see also
Section 275-11(F)(4)(a)(1)-(5) of the zoning ordinance.
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
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
12
into strict compliance with the zoning requirements and the characteristics of the
surrounding neighborhood.” Id. at 50 (emphasis added).
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. See Soc’y Hill Civic Ass’n v. Phila.
Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012).
Nevertheless, “Hertzberg articulated the principle that unreasonable
economic burden may be considered in determining the presence of unnecessary
hardship.” Soc’y Hill Civic Ass’n, 42 A.3d at 1188 (quoting Yeager v. Zoning
Hearing Bd. of City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)).
Further, in Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014), the Supreme
Court stated: “This Court has repeatedly made clear that in establishing hardship,
an applicant for a variance is not required to show that the property at issue is
valueless without the variance or that the property cannot be used for any permitted
purpose.” Id. at 330 (emphasis in original).
Here, the ZHB determined Applicant did not prove the requisite
unnecessary hardship. In so doing, the ZHB determined Applicant “failed to
submit evidence reflecting why construction of a single-family private residence
13
may not take place in compliance with the zoning ordinance. In actuality, there are
no unique physical circumstances or conditions that preclude compliance with the
zoning ordinance.” ZHB Op. at 6. The ZHB further determined the property can
be developed in strict conformity with the zoning ordinance. Id. at 7. “No
variance is necessary to enable the reasonable use of the property since a residence
similar to the other residences in the neighborhood could be built on the
[property].” Id. We discern no error in the ZHB’s determination that Applicant
did not prove the requisite unnecessary hardship even under the relaxed standard
set forth in Hertzberg.
Applicant testified denial of the variance would result in hardship
because the property’s proximity to the pump station and State Route 33 make it
less valuable as a single lot rather than two lots. R.R. at 86-92. Applicant did not
testify that there are unique circumstances or conditions of the property that
preclude or hinder development of the property in conformity with the zoning
ordinance. In fact, both Applicant and his Engineer admitted the property could be
developed in compliance with the zoning ordinance by constructing one single-
family home. R.R. at 63, 91. Essentially, Applicant testified that, because of the
property’s proximity to State Route 33 and the pump station, he would realize a
greater profit if he could develop the property with two homes rather than one.
R.R. at 89-91. Thus, as the ZHB determined, the need for the variance stems from
Applicant’s desire to realize a greater profit by constructing two homes on the
property rather than one home. This is insufficient to constitute unnecessary
hardship.
14
This Court consistently rejects requests for dimensional variances
where proof of hardship is lacking. Where no hardship is shown, or where the
asserted hardship amounts to a landowner’s mere desire to increase profitability,
the unnecessary 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 (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
15
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 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).
Because we discern no error in the ZHB’s determination that
Applicant did not prove the requisite unnecessary hardship to justify the grant of
the requested dimensional variance, we need not address at length whether
Applicant met its burden of proving it satisfied the remaining variance criteria. It
is sufficient for current purposes to state that no error is apparent in the ZHB’s
determinations that any alleged hardship was self-created,3 and that the variance
3
The ZHB determined any alleged hardship was self-created because Applicant was
aware of the lot configuration and its location next to the planned extension of State Route 33
and the pump station when he purchased the property in 1998. This analysis is faulty. Applicant
did not create the current lot configuration, and he did not construct State Route 33 or the
pumping station. Stated otherwise, mere knowledge of these pre-existing conditions does not
create a new hardship for the property. However, Applicant will need the variances because he
intends to create two new undersized lots where none currently exist. To that extent, he will be
creating the undersized lot hardship he seeks to remedy. Thus, while we disagree with the ZHB’s
rationale, we discern no error in the ultimate determination it reached on the self-created
hardship issue.
16
sought is not the minimum that would afford relief.4 Similarly, we do not discern
reversible error in the ZHB’s determination that the grant of a variance would alter
the essential character of the neighborhood.5
B. De Minimis Doctrine
1. Contentions
Alternatively, Applicant contends the ZHB erred in failing to grant the
requested variance under the de minimis doctrine. He asserts the de minimis
doctrine applies where an applicant seeks only a minor deviation from a zoning
ordinance and rigid compliance with the ordinance is not necessary to preserve the
public interests the ordinance seeks to protect.
Here, Applicant argues the record reveals he satisfied these two
factors. Applicant maintains that, as his Engineer explained, the variance sought
4
The ZHB determined the variance sought is not the minimum variance that would
afford relief given that Applicant could construct a home on the property without the need for
any zoning relief. In light of Applicant’s testimony that the property could be developed for one
single-family home without the need for zoning relief, no error is apparent in the ZHB’s
determination in this regard.
5
Although Applicant takes issue with this ZHB determination, which he asserts is
premised on the mere opinions of the objectors, Applicant, not the objectors, bore the burden of
proving that the grant of the variance would not alter the essential character of the neighborhood.
Applicant did not persuade the ZHB on this point. To that end, although Applicant maintains his
Engineer testified that the grant of the requested variance would create no adverse community
impact, the ZHB did not credit that testimony. Further, our review of the record reveals the
objectors testified that, if the ZHB granted the variance, the essential character of the
neighborhood would be altered because Applicant would construct two homes on smaller lots,
while other homes in the neighborhood are situated on larger lots. R.R. at 116, 134, 139. Thus,
the grant of the variance would increase density and would have a negative impact on property
values. Id. In addition to their testimony, the objectors submitted documentary evidence in the
form of photographs and tax maps in order to illustrate the character of the area surrounding the
property. Certified Record, Objector Exs. 1-9. Because the record supports the ZHB’s
determination on this point, we reject Applicant’s argument.
17
was for lot width. The zoning ordinance requires a lot width of 125 feet. The total
frontage of the property is 240 feet, and Applicant seeks to create two lots, each
with a width of 120 feet. Thus, Applicant seeks a variance to deviate from the
required lot width by five feet for each lot. This five-foot deviation is a mere 4%
deviation from the zoning ordinance requirement, which is clearly minor.
Applicant further contends the record reveals rigid compliance with the zoning
ordinance is unnecessary to preserve the public interests the zoning ordinance
seeks to protect. Thus, although he satisfied the requirements to obtain a
dimensional variance, in the alternative, the ZHB should have granted the variance
as de minimis.
2. Analysis
“The de minimis doctrine is an extremely narrow exception to the
heavy burden of proof which a party seeking a variance must normally bear.”
Swemley v. Zoning Hearing Bd. of Windsor Twp., 698 A.2d 160, 162 (Pa.
Cmwlth. 1997) (quoting King v. Zoning Hearing Bd. of Borough of Nazareth, 463
A.2d 505, 505 (Pa. Cmwlth. 1983)). “The de minimis zoning doctrine authorizes a
variance in the absence of a showing of the unnecessary hardship traditionally
required to support such relief where the violation is insignificant and the public
interest is protected by alternate means.” Nettleton v. Zoning Board of Adjustment
of City of Pittsburgh, 828 A.2d 1033, 1038 (Pa. 2003). Thus, “it is not necessary
to apply the normal standards for a variance … where the variance requested is de
minimis.” Lench v. Zoning Bd. of Adjustment of City of Pittsburgh, 13 A.3d 576,
581 (Pa. Cmwlth. 2011) (quoting Nettleton, 828 A.2d at 1038).
18
This Court consistently holds that “[t]he grant of a de minimis
variance is a matter of discretion with the local zoning board.” Id. at 581-82
(citing Segal v. Zoning Hearing Bd. of Buckingham Twp., 771 A.2d 90 (Pa.
Cmwlth. 2001)) (emphasis added). Thus, “there is no general right to a de minimis
variance in Pennsylvania ….” 200 W. Montgomery Ave. Ardmore, LLC v. Zoning
Hearing Bd. of L. Merion Twp., 985 A.2d 996, 1001 (Pa. Cmwlth. 2009) (citation
omitted). As with a traditional variance, it is essential that the grant of a de
minimis variance be decided on a case-by-case basis. Swemley.
Here, the ZHB did not deem Applicant’s variance request
insignificant because Applicant seeks a 10-foot deviation from the minimum lot
width requirement. The ZHB deemed Applicant’s request “significant” in
comparison to de minimis variances previously approved by Pennsylvania courts.
ZHB Op. at 7. The ZHB also declined to grant the requested variances as de
minimis on the ground that Applicant could construct a home similar to those that
presently exist in the neighborhood without the need for any zoning relief. Id.
Although the ZHB incorrectly stated that the grant of a de minimis variance
requires proof of unnecessary hardship, we discern no abuse of discretion in the
ZHB’s ultimate denial of Applicant’s de minimis variance request.
Specifically, Applicant did not prove the requested deviation was
insignificant. Rather, Applicant seeks two variances from the zoning ordinance’s
minimum lot width requirement in order to enable subdivision of the property so
that he can construct two homes. As such, grant of the requested variance would
effectively double the density of the use and create two substandard lots that lack
19
the required lot width, despite the fact that Applicant can make reasonable use of
the property by building a single-family home without the need for any zoning
relief. Under these circumstances, no abuse of discretion is apparent in the ZHB’s
determination that Applicant did not prove the requested deviation was
insignificant.
In addition, in order for the ZHB to grant a de minimis variance it
must be shown that “the public interest is protected by alternate means.” Nettleton,
828 A.2d at 1038. Thus, to obtain a de minimis variance, an applicant must prove
that “strict compliance is not necessary to protect the public interest.” Id. at n.6.
Here, the ZHB found the grant of the requested variance would be contrary to the
public interest because it would alter the essential character of the neighborhood,
which is comprised of single-family homes on compliant lots. ZHB Op. at 7. The
ZHB also found that neighboring objectors raised concerns that the creation of two
substandard lots would decrease the value and use of their residential properties,
and the construction of inexpensive residences would alter the essential character
of the neighborhood. ZHB Op., Finding of Fact No. 9. As a result, Applicant did
not prove strict compliance with the zoning ordinance’s minimum lot width
requirement for each of its two proposed non-compliant lots was not necessary to
protect the public interest.
Moreover, as the trial court recognized, this Court repeatedly holds
that the grant of a de minimis variance is a matter of discretion for the ZHB.
McCarry v. Haverford Twp. Zoning Hearing Bd., 113 A.3d 381 (Pa. Cmwlth.
2015); Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d 1061 (Pa.
20
Cmwlth. 2012); Lench; 200 W. Montgomery Ave.; Segal; Swemley; Alpine, Inc.
v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186 (Pa. Cmwlth. 1995). Thus,
we decline to substitute our judgment for that of the ZHB on the issue of whether
Applicant proved entitlement to the de minimis variances sought here.
Based on the foregoing, we affirm.6
ROBERT SIMPSON, Judge
6
As a final issue, Applicant argues the ZHB erred when it relied on evidence not
properly before it. To that end, he asserts, at the ZHB hearing, evidence was offered regarding a
title search performed by the ZHB’s Solicitor. While the solicitor discussed the title search, it
was never formally admitted as evidence. Further, at the hearing, Applicant stated he never saw
the title search, and he was unprepared to answer questions regarding it. He argues the ZHB’s
Solicitor’s decision to independently conduct a title search was improper. Further, the ZHB
made a finding concerning the results of the title search, which it deemed “noteworthy.” F.F. No.
6. Applicant argues the ZHB erred in relying on the results of the title search where it was not
properly part of the record.
This issue is irrelevant to a determination of the merits of Applicant’s variance request.
Thus, even if the ZHB’s Solicitor somehow acted improperly in examining public records of
which Applicant was unaware before the ZHB hearing, this fact had no bearing on the ZHB’s
ultimate determination that Applicant did not meet its burden of proving entitlement to the
requested dimensional variance or, in the alternative, a de minimis variance. As such, although
the ZHB made a finding based on the results of the title search, see F.F. No. 6, this finding was
unnecessary to the ZHB’s ultimate decision that Applicant did not meet his burden of proving
entitlement to the requested variance. Therefore, Applicant’s argument is unavailing.
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas J. Pugliese, :
Appellant :
:
v. : No. 2297 C.D. 2014
:
Zoning Hearing Board of :
Bethlehem Township :
:
v. :
:
Hariton Parashos :
ORDER
AND NOW, this 15th day of October, 2015, the order of the Court of
Common Pleas of Northampton County is AFFIRMED.
ROBERT SIMPSON, Judge