ABH Builders, Inc. v. Lower Providence Twp. ZHB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ABH Builders, Inc., :
Appellant :
:
v. :
:
Lower Providence Township : No. 889 C.D. 2020
Zoning Hearing Board : Argued: November 14, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 22, 2022
ABH Builders, Inc. (ABH) appeals from an order of the Montgomery
County Court of Common Pleas (trial court) denying ABH’s appeal from a decision
of the Lower Providence Township (Township) Zoning Hearing Board (Board).1
ABH applied for a special exception and dimensional variances to allow
construction of a residence on an undersized property in a residential zoning district.
The Board denied the special exception and variance requests.
The Board’s decision, as approved by the trial court, reflects a
longstanding effort by the Township to prevent construction of homes on very small
lots in a subdivision that existed before the enactment of the zoning ordinance.
Notwithstanding any potentially confiscatory implications of such an effort, we are
1
The Township intervened as a party on appeal. Original Record, Item # 10.
constrained to agree with the Board that ABH failed to sustain its burden of proof in
this case. Therefore, we must affirm the trial court’s order.
I. Background
In the early 1900s, movie theaters in Philadelphia raffled small tracts of
real property, known colloquially as “movie lots,” to customers. Reproduced Record
(RR) at 70a-71a, 139a & 204a. In 1920, a recorded subdivision plan (subdivision
plan) depicted several hundred such lots located in the Township. Id. at 27a & 82a.
The movie lots in the subdivision were generally 20 feet wide by 112 feet deep (2240
square feet). See id. at 48a & 204a. The record does not indicate when, or whether,
any of the lots in this particular subdivision were actually conveyed individually to
movie theater patrons or any other purchasers.
In 1955, the Township enacted its first zoning ordinance. RR at 47a.
The record does not include the zoning ordinance’s original provisions, although
there was testimony that it required a minimum building lot size of 30,000 square
feet in the residential zoning district. Id. at 55a-56a. The current zoning ordinance2
permits single-family detached dwellings in the Township’s R-1 residential zoning
district. Id. at 137a. Construction of a home in the R-1 zoning district requires a
minimum lot size of 65,000 square feet, a minimum lot width and road frontage of
195 feet, minimum front and side yard setbacks of 50 feet, and a minimum rear
setback of 65 feet. Id. at 137a-38a. Thus, each movie lot is grossly smaller than the
minimum lot size in the R-1 zoning district, and the setback requirements for the
2
Although parts of the zoning ordinance were amended in 2020, the current provisions
cited herein include the same area and setback requirements as the previous version of the zoning
ordinance cited by the parties that was in effect in 2017 when ABH filed its application.
2
zoning district leave no envelope for any construction on a movie lot. See RR at
204a.
ABH is the equitable owner of an aggregation of four contiguous vacant
movie lots in the R-1 zoning district on South Grange Avenue in the Township
(Property) that were part of the 1920 subdivision plan. RR at 137a. The Property is
80 feet wide by 112 feet deep. Id. Containing 8,236 square feet after deductions for
rights-of-way, the Property is less than 13% of the area required for a building lot
under the current zoning ordinance. See id. at 137a-38a & 144a. It also has less than
40% of the required width and road frontage. Id. at 144a. Moreover, as noted above,
the current setback requirements overlap, leaving no envelope for construction on
the Property. See id. at 204a.
In September 2017, ABH applied for a special exception and
dimensional variances to allow construction on the Property of a two-story single-
family home with a footprint of 1,200 square feet (24 feet by 50 feet). RR at 138a.
The special exception request related to the nonconforming lot area and width, while
the dimensional variance requests related to the required setbacks. Id. at 138a-39a.
After a public hearing, the Board denied ABH’s request for a special
exception. The Board explained that the Property is “grossly undersized” compared
to the minimum lot size required by the zoning ordinance. RR at 144a. The Board
acknowledged that the movie lots have existed since the early 1900s and stated that
they “have been the subject of numerous variance applications.”3 Id. Moreover, the
3
The outcomes of any prior similar variance applications are not part of the record,
although a Board member observed during the hearing that several applications were denied earlier
that year involving larger nonconforming tracts than the Property. RR at 78a. Research revealed
no such cases having been appealed to this Court, and the parties have cited no previous court
decisions regarding special exceptions or variances involving any of the movie lots in the
Township. However, we note that this Court has previously affirmed the denial of a special
3
Board posited that the Township’s supervisors “had to know” at the time the
Township created the R-1 zoning district that construction on the preexisting movie
lots would be impossible unless sufficient lots were combined to meet the R-1 lot
size requirements.4 Id. at 144a-45a. However, the Board concluded that the
Township had the power under Section 604 of the Pennsylvania Municipalities
Planning Code5 (MPC), 53 P.S. § 10604, to enact zoning to safeguard the public
health, safety, and welfare by control of “proper density of population.” Id. at 145a.
The Board observed that the zoning ordinance allows special
exceptions for nonconforming lots that were “of public record in single and separate
ownership” when the zoning ordinance was adopted in 1955. RR at 146a (additional
quotation marks and Board’s added emphasis omitted). The Board concluded the
four lots comprising the Property were “consolidated” in an October 1968 deed and,
therefore, the Property was not in “single and separate ownership” in 1955;6 thus,
the Property does not meet the requirement for a special exception. Id. at 146a-47a.
Further, the Board opined that a special exception would contravene the
public interest because it would allow ABH “to build a long and narrow home in a
district that contains and encourages significantly larger homes.” RR at 147a. The
Board expressed concern that granting relief in this case would lead to adverse
exception and a variance by the zoning hearing board of nearby Lower Merion Township in a
similar case involving property consisting of a group of four nonconforming lots, each 20 by 100
feet in size. See In re Appeal of Grace Bldg. Co., 392 A.2d 888, 889-90 (Pa. Cmwlth. 1978).
4
Our calculation indicates that at least 30 contiguous movie lots (65,000 ÷ 2240, rounded
up to the next whole number) would be required in order to meet the minimum lot size requirement.
Moreover, the joined lots would have to be configured so as to make the resulting lot deep enough
to accommodate the front and rear setbacks and still allow for construction on the lot.
5
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
6
We question the validity of this reasoning; however, it is not material to our disposition
of this appeal.
4
impact on the public welfare “as more and more special exceptions are granted based
upon the same theory” and more homes are built on nonconforming movie lots. Id.
at 148a-49a. The Board expounded:
Granting the special exception will beget more of the same
development that will convert what is otherwise a
pleasant, manageable neighborhood of larger structures
with significant distances between homes into an
urbanized anomaly that is the antithesis of this suburban
township. Public policy is in no way served by such
unbridled use of undersized lots.
Id. at 149a.
Regarding the variance requests, the Board suggested they were moot
because the Property did not qualify for a special exception. Id. at 150a.
Nonetheless, the Board considered and denied the variance requests on their merits
as well. Id.
The Board concluded that the zoning ordinance did not create an
unnecessary hardship to ABH because it did not work a confiscation of the Property.
RR at 150a. This was so, according to the Board, because neighbors attending the
hearing expressed interest in purchasing the Property in order to prevent construction
from occurring on it.7 Id. The Board also pointed to ABH’s conditional agreement
to purchase the Property as evidence of its marketability.8 Id. However, the Board
7
However, in Harper v. Zoning Hearing Board, 343 A.2d 381, 384 (Pa. Cmwlth. 1975),
we concluded a zoning hearing board erred by denying a variance on the basis that the applicants
had refused to sell their nonconforming lot to an adjacent lot owner who just wanted additional
yard space and would not require a variance. As we observed in Harper: “What price would such
an adjacent lot owner be expected to be willing to pay for such a lot, knowing that he and the other
adjacent landowners, if any, were the only ones who could make any reasonable use of it?” Id.8
ABH’s purchase is conditioned on obtaining the necessary special exception and
variances. See RR at 13a. Thus, the conditional purchase agreement cannot be viewed as
supporting the marketability of the Property in the absence of the requested zoning relief.
5
did not point to any use ABH could make of the Property in the absence of zoning
relief.9
The Board further opined that the requested dimensional variances
would forever alter the neighborhood’s essential character, impair adjacent
properties by allowing construction of smaller homes on smaller lots, and adversely
affect the public welfare. RR at 151a. According to the Board, “[a]ltering the
dimensions [of the setbacks] to permit the construction of a home on a woefully
undersized lot in an R-1 district undercuts the very purpose of the [zoning o]rdinance
and the public interest of regulation of population density.” Id.Finally, the Board concluded the variances were not merited because
“[t]he requested relief is not the minimum variance that will afford the required
relief.” RR at 152a. However, the Board did not explain this bare conclusion or
point to any lesser variance that would provide any relief to ABH. See id.The Board made clear that it denied the special exception and variances
based partly on concerns well beyond the effects of one house built on one
nonconforming lot. As set forth above, the Board feared that granting one special
exception would lead to many more homes built on other small movie lots. RR at
148a-49a. The Board expressed similar concerns that if it granted the variances
sought for the Property, “the flood gates of others seeking similar variances [would]
eventually swing open using this case as precedent.” Id. at 151a.
ABH appealed the Board’s decision to the trial court, which took no
additional evidence and denied the appeal without an opinion in an order dated
9
The other permitted uses in the R-1 zoning district – agricultural, golf course, and
institutional/municipal/recreational/utility – currently require minimum areas of 5, 130, and 2
acres, respectively. LOWER PROVIDENCE TWP., PA. ZONING CODE, § 143-33 (2020).
6
August 7, 2020. The trial court explained its reasoning in a subsequent opinion
issued pursuant to Pa.R.A.P. 1925(a). See generally RR at 203a-10a.
The trial court acknowledged that because of the Property’s small size
and the large setbacks required by the zoning ordinance, “there is no building
envelope on the property” without zoning relief. RR at 204a. However, the trial
court observed that the record was insufficient to establish when the four movie lots
comprising the Property were aggregated or whether, prior to 1955, they had merged
for zoning purposes with any additional contiguous lots that may previously have
been held along with the Property by one owner. Id. at 209a. Thus, the trial court
denied ABH’s appeal because ABH “failed to prove that the [P]roperty was held in
single and separate ownership at the time the zoning ordinance was enacted, as
required to seek a special exception.” Id. at 207a-08a.
The trial court did not decide the variance issue, concluding that
“without a special exception, the request for a variance is moot.”10 RR at 209a. ABH
then appealed to this Court.11
10
The trial court offered to address the variance issue on a remand in the event this Court
determines the issue is not moot. RR at 209a. Our disposition of this appeal makes a remand
unnecessary.
11
Because the trial court took no additional evidence, our review of its decision is limited
to determining whether the zoning board manifestly abused its discretion or committed an error of
law. In re Appeal of Moyer, 978 A.2d 405, 408 n.4 (Pa. Cmwlth. 2009) (citing In re Puleo, 729
A.2d 654, 656 n.3 (Pa. Cmwlth. 1999)). The Board is the finder of fact. Taliaferro v. Darby Twp.
Zoning Hearing Bd., 873 A.2d 807, 811 (Pa. Cmwlth. 2005). As such, the Board is the sole judge
of the credibility of witnesses and the weight afforded their testimony; this Court may not
substitute its interpretation of the evidence for that of the Board. Id. The Board is free to reject
even uncontradicted testimony it finds lacking in credibility, including testimony offered by an
expert witness. Id.7
II. Issues
On appeal, ABH asserts several errors, which we summarize and
reorder as follows.
ABH contends the Board abused its discretion, committed legal error,
and acted arbitrarily by denying the special exception. ABH’s expert witness opined
that the proposed construction on the Property was appropriate because single-
family dwellings are permitted in the R-1 zoning district, the proposed structure is
of a reasonable size for the size of the Property, and a special exception for one
single-family home will not affect the health, safety, and welfare of the surrounding
community. Moreover, a proposed use is presumed consistent with health, safety,
and welfare once the applicant demonstrates compliance with zoning ordinance
requirements. Thereafter, an objector must show a high probability of adverse
impacts in order to overcome that presumption. ABH asserts that it demonstrated
its right to a special exception, and no objector offered evidence that would
overcome ABH’s presumptive entitlement to relief. Specifically, ABH contends it
established that the Property’s four separate lots were held in single and separate
ownership before the Township enacted the zoning ordinance, and the Property
currently consists of four preexisting nonconforming lots. According to ABH, the
purported former ownership of the Property along with four additional contiguous
lots by a single owner does not affect ABH’s entitlement to relief, because even all
eight lots together would not comply with the zoning ordinance’s lot size
requirement.12 Moreover, despite their common ownership, the lots comprising the
Property were transferred as separate lots – albeit on one deed – and remain
12
ABH does not explain how the nonconforming nature of one aggregation of eight movie
lots would entitle the owner to divide the lots further into two or more nonconforming aggregations
of lots.
8
separately depicted on the local tax map. Finally, ABH suggests that general
considerations such as the public welfare are insufficiently specific to support denial
of a special exception, which must be governed by reasonably definite standards.
Similarly, ABH argues that the Board abused its discretion, committed
legal error, and acted arbitrarily by denying the dimensional variances from the area
and setback requirements of the zoning ordinance. ABH explains that the Property
is not buildable without the variances because the setbacks leave no envelope for
construction of any residential building. ABH suggests the planned two-story
residence, with a footprint of 1,200 square feet, is the smallest dwelling that can
reasonably be constructed on the Property. ABH posits that the Property meets the
requirements for a variance provided in Section 910.2 of the MPC, added by the Act
of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10910.2, and that its supporting evidence was
uncontradicted.
Further, ABH contends that the denial of its special exception and
variance requests was confiscatory because it eliminated any possible use of the
Property. ABH reiterates that the setback requirements overlap such that there is no
building envelope without variances to reduce the setbacks. ABH observes that the
law requires relief to avoid confiscation of property where area and setback
requirements prevent the reasonable use of a preexisting undersized lot. ABH argues
that each of the four movie lots comprising the Property was nonconforming in size
at the time the Township enacted the zoning ordinance and has remained
nonconforming in size since that time. In ABH’s view, whether or not the lots are
consolidated, the Property has never been large enough to meet the zoning
ordinance’s requirements.
9
Finally, ABH asserts that the Board abused its discretion, committed
legal error, and acted arbitrarily to the extent that it denied relief based on concerns
that granting relief regarding the Property will create a precedent that will lead to a
flood of demands for special exceptions and variances regarding other similar
undersized lots. ABH insists that it was entitled to have its requests for zoning relief
decided on their own merits, without regard to any alleged potential effects on other
landowners’ applications for relief.
III. Discussion
A. Special Exception
The zoning ordinance provides for special exceptions to allow
construction on undersized lots that preexisted the ordinance’s enactment.13 The
zoning ordinance states that “[a] nonconforming lot which is of public record in
single and separate ownership at the time of the enactment of the zoning ordinance,
namely May 8, 1955, may, by special exception, be used for a permitted use in the
district in which it is located.” LOWER PROVIDENCE TWP., PA. ZONING CODE, § 143-
145 (2006).14 The zoning ordinance defines “single and separate ownership” as “the
13
In this regard, the special exception provision of the zoning ordinance merely reflects
longstanding precedents delineating constitutional limits on zoning, which forbid confiscating
property by improperly restricting its development. See, e.g., Taylor v. Haverford Twp., 149 A.
639, 643 (Pa. 1930) (concluding that zoning ordinance, enacted 24 years after plaintiff bought and
held land for commercial use, was unconstitutionally confiscatory, where it rezoned the property
as residential although it was surrounded by existing commercial development and could not
reasonably be used for residential purposes).
14
Section 143-145 of the zoning ordinance was amended in 2020. The applicable section
now provides, in pertinent part: “A[n] existing nonconforming lot which, continuously from
before the time of the enactment of the original Lower Providence Township Zoning Ordinance
on May 8, 1955, has been of lawful public record and in single and separate ownership may be
utilized for construction of a single family detached dwelling . . . .” LOWER PROVIDENCE TWP.,
PA. ZONING CODE, § 143-145B(1) (2020).
10
ownership of a lot by one or more person[s], partnership[s] or corporation[s], which
ownership is separate and distinct from that of any adjoining lot.” Id., § 143-146.
Further, the zoning ordinance provides:
An applicant for a special exception shall have the burden
of establishing by competent evidence and testimony both:
(a) That the applicant’s application falls within the
provisions of the ordinance which accords to the applicant
the right to seek a special exception; and
(b) That the allowance of a special exception will not be
contrary to the public interest.
Id., § 143-168D. Therefore, ABH had the burden of establishing that the Property
met the requirements for a special exception under the zoning ordinance. The key
issue controlling its ability to do so is whether the Property was “of public record in
single and separate ownership” when the zoning ordinance was enacted in 1955. Id.,
§ 143-145.
Cottone v. Zoning Hearing Board, 954 A.2d 1271 (Pa. Cmwlth. 2008)
(en banc) is analogous and provides useful analysis on this issue. In Cottone, a
property owner sought a special exception and a variance to build a house on a lot
only 30% of the size required by the applicable zoning ordinance. The lot was shown
on an approved subdivision plan and was separately deeded and taxed. Id. at 1273.
The previous owner acquired the land in 1966, the subdivision plan was approved in
1975, and the zoning ordinance was amended to increase the minimum lot size in
1986, making the preexisting lots undersized as of that time. Id. at 1273-74. All 16
lots in the subdivision were owned by the same corporation from 1966, long before
the ordinance’s amendment, to 2003, long after the amendment. Id. at 1274. Then,
the lots were separately sold at a tax sale, and Cottone bought one of the lots. Id.11
Because the lots were not under separate ownership at the time of the zoning
ordinance’s amendment, the zoning hearing board refused to grant a special
exception or a variance; the trial court affirmed, concluding the tax sale purchaser
failed to meet her burden of proving the lots were separate and distinct while under
common ownership. Id. This Court agreed. Id. at 1279.
In Cottone, we summarized the applicable legal principles as follows:
[I]f two adjoining, but separately-owned, lots are rendered
undersized by a zoning ordinance enactment, the two
properties will not be affected by the ordinance. Each lot
will continue to be a lawful, non-conforming size for
purposes of the zoning ordinance. If those two lots later
come under common ownership, the burden is upon the
municipality to prove that the new owner intended to use
the two lots as one integrated parcel. On the other hand, if
the same two adjoining lots are under common ownership
when a zoning ordinance is passed that renders each
property undersized, then the two lots are presumed to
have merged. The burden is on the landowner to rebut the
presumption.
Id. at 1277 (emphasis added). Further, where contiguous lots had a single owner at
the time they were rendered nonconforming in size, evidence that the parcels were
conveyed by separate deeds, taxed separately, and depicted on an approved
subdivision plan will not suffice to meet the landowner’s burden; “these abstract
legal attributes do not carry the day.” Id. at 1279 (citation omitted). Instead, to
satisfy its burden of proof, the landowner must provide “evidence of some overt or
physical manifestation of intent to keep the lots in question separate and distinct.”
Id. at 1276 (citations omitted). “A physical manifestation of the intention to keep
adjoining lots separate and distinct consists of [for example] a line of trees, a fence
or wall separating the lots.” Id. (citation omitted). Thus, where contiguous lots are
jointly owned at the time a zoning ordinance renders them undersized, and one or
12
more such lots are later separately conveyed, an owner seeking zoning relief must
provide evidence demonstrating that the lots were “used, maintained or treated as
separate and distinct properties” at the time the zoning ordinance was enacted. In re
Appeal of Moyer, 978 A.2d 405, 412 (Pa. Cmwlth. 2009).
Here, ABH offered no evidence that the Property or any component
movie lot was held of public record in single and separate ownership at the time of
the enactment of the zoning ordinance in 1955. ABH’s expert witness testified that
the subdivision creating the movie lots was recorded in 1920. RR at 47a. Neither
party appears to dispute that, at that time, the landowner recording the subdivision
plan owned all of the lots created therein. Thus, neither the Property nor any of its
component lots was held of record in single and separate ownership as of that time.
The current legal owner of the Property acquired it in 1968 along with another,
noncontiguous tract containing two movie lots not at issue here. RR at 17a-18a, 24a
& 69a. However, the record is bare of evidence concerning the ownership of the
Property, its component movie lots, or other contiguous lots at any time between
1920 and 1955. There is simply no record evidence indicating whether, at the time
the zoning ordinance was enacted in 1955, the Property’s component lots were
owned by one, two, three, or four different owners. More importantly, the record
does not indicate whether the Property was first owned separately from other
contiguous tracts before or after the enactment of the zoning ordinance in 1955. In
other words, there is no evidence in the record indicating whether the Property was
part of a larger group of commonly owned lots in 1955. If it was, ABH is not entitled
to a special exception to develop the Property.
As stated above, as the party seeking the special exception, ABH bore
the burden of demonstrating compliance with the zoning ordinance’s requirements.
13
LOWER PROVIDENCE TWP., PA. ZONING CODE, § 143-168D(a) (2006). Manifestly,
the four contiguous lots comprising the Property were not of public record in single
and separate ownership when they were first shown on the approved subdivision
plan in 1920, nor have they been so since they were all conveyed to the present legal
owner in 1968. However, their status in 1955 at the time of the zoning ordinance’s
enactment is unknown. The parties disagree whether the four component movie lots
comprising the Property merged for zoning purposes by reason of the 1968 deed, but
we need not decide that issue, because in either event, ABH has failed to sustain its
burden of demonstrating the status of the Property when the zoning ordinance was
enacted in 1955.15
Moreover, ABH has offered no evidence of any overt or physical
manifestation of intent to keep the Property separate and distinct from any larger
tract of which it may have formed a part in 1955, as required under Cottone, 954
A.2d at 1276. Although ABH avers that the Property’s component movie lots were
transferred as separate lots and remain separately depicted on the local tax map, our
analysis in Cottone, as discussed above, established that such facts do not suffice to
demonstrate that the Property was kept separate and distinct from contiguous, jointly
owned properties in 1955. See id. at 1279. There was no testimony or other evidence
of a physical feature such as a line of trees, a fence, or a wall separating the Property
15
The Township avers that a predecessor-in-title to the current owner held title at some
point to at least nine contiguous lots, including the four that now comprise the Property. The
Township has filed with its brief, designated as a supplemental reproduced record, a certified copy
of a deed it contends is supportive of this averment, arguing that we may take judicial notice of it
under applicable rules of evidence. However, that deed was not part of the record before the Board
or the trial court. Accordingly, we decline to consider the Township’s purported evidence. See
Montgomery Cnty. Conservation Dist. v. Bydalek, 261 A.3d 1073, 1079 n.8 (Pa. Cmwlth. 2021)
(observing that an appellate court may not consider documents that are not part of the original
record).
14
from other contiguous nonconforming lots, nor was there evidence of any other
physical demarcation in 1955. Thus, ABH also failed to sustain its burden of
demonstrating that the Property and any additional jointly held nonconforming lots
were “used, maintained or treated as separate and distinct properties” at the time the
zoning ordinance was enacted. See Moyer, 978 A.2d at 412.
For these reasons, we agree with the Board and the trial court that ABH
failed to demonstrate that it met the zoning ordinance’s requirement of single and
separate ownership at the time the zoning ordinance was enacted in 1955, so as to
qualify for a special exception.
B. Dimensional Variances
We disagree with the Board that ABH’s variance requests are moot
because it does not qualify for a special exception. Ineligibility for a special
exception does not automatically make one ineligible for a variance. See, e.g., W.
Goshen Twp. v. Crater, 538 A.2d 952, 955 (Pa. Cmwlth. 1988) (denying a special
exception and separately analyzing a variance request). However, for the reasons
discussed below, we agree with the Board that ABH failed to demonstrate the
requisite hardship to support its requests for dimensional variances.
An applicant for a variance must establish all of the following criteria:
(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
15
to the public welfare; and (5) the variance sought is the
minimum variance that will afford relief.
Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa. Cmwlth. 2015)
(quoting Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520
(Pa. Cmwlth. 2014) (citation omitted) (emphasis added) (additional quotation marks
omitted)); see also Section 910.2(a)(1-5) of the MPC, 53 P.S. § 10910.2(a)(1)-(5);
Larsen v. Zoning Bd. of Adjustment, 654 A.2d 256, 261 (Pa. Cmwlth. 1995) (stating
that “[v]ariances are generally granted only under exceptional circumstances and an
applicant must satisfy all criteria necessary for the grant of a variance”) (additional
citation omitted).
As a general rule, “[w]here a lot is too small to conform with the
minimum lot area requirements, and cannot be made to conform by merging lots or
by re-subdividing a larger tract, enforcement of the ordinance would sterilize the
land, creating the necessary hardship which will justify the granting of a variance.”
W. Goshen Twp., 538 A.2d at 955 (citing Application of BCL, Inc., 387 A.2d 970,
972-73 (Pa. Cmwlth. 1978)). However, the subdivision of a single piece of property
rendering part of it undersized is a self-inflicted hardship as to that undersized lot,
and a variance will not be granted. Parkside Assocs., Inc. v. Zoning Hearing Bd.,
532 A.2d 47, 50 (Pa. Cmwlth. 1987); see also Dudlik v. Upper Moreland Twp.
Zoning Hearing Bd., 840 A.2d 1048, 1054 (Pa. Cmwlth. 2004) (explaining that once
lots merged as a result of zoning, the sale of one lot, making the remaining lot
nonconforming, resulted in a self-created hardship regarding inability to build on the
undersized lot); Price v. Bensalem Twp. Zoning Hearing Bd., 569 A.2d 1030, 1033
(Pa. Cmwlth. 1990) (same); In re Appeal of Grace Bldg. Co., 392 A.2d 888, 890 (Pa.
Cmwlth. 1978) (same).
16
Moreover, the owner of contiguous tracts, one of which is
nonconforming, may not convey away the conforming portion, retain the
nonconforming portion, and thereafter obtain a variance to allow construction on the
nonconforming lot; it follows that such an owner likewise may not evade the
requirements of a zoning ordinance simply by conveying away the nonconforming
portion, and the owner’s successor-in-interest may not acquire any entitlement to a
variance superior to that of the seller.
In Snyder v. Zoning Bd. of Adjustment, 26 D. & C. 2d 593 (1961), the
purchaser of a lot sought to continue the same use previously made by the seller,
although that use was illegal under the applicable zoning ordinance. The
Montgomery County Court of Common Pleas (the same trial court as in this case)
opined:
If the peculiar circumstances which render the property
incapable of being used in accordance with the restrictions
contained in the ordinance have been themselves caused or
created by the property owner or his predecessor[-]in[-]title,
the essential basis of a variance, i.e., that the hardship be
caused solely through the manner of operation of the
ordinance upon the particular property, is lacking. In such
case, a variance will not be granted; the hardship arising
as a result of the act of the owner or his predecessor will
be regarded as having been self-created, barring relief.
Id. at 596 (quoting Rathkopt, Law of Zoning and Planning 48-1 (3rd ed. 2005))
(emphasis added) (quotation marks omitted). We find persuasive the Snyder court’s
reasoning imputing to a variance applicant the self-created nature of a hardship
imposed by a predecessor in title. “Otherwise, by illegal use and subsequent
conveyance an owner might effectively nullify a zoning ordinance.” Snyder, 26 D.
& C. 2d at 596. Although Snyder concerned an illegal use rather than an illegal lot,
17
we think the same principle applies equally to the illegal creation of an undersized
lot as to an illegal use.
Here, there is no allegation that either ABH or the Property’s current
legal owner conveyed away any contiguous lots, thereby rendering the Property
nonconforming. However, as discussed in Section A above, the record is silent
concerning the ownership of the Property and the surrounding lots between the
recording of the approved subdivision creating the movie lots in 1920 and the
enactment of the Township’s zoning ordinance in 1955, or, indeed, at any point
before 1968. Thus, it is impossible for this Court to determine at what point a
conveyance occurred that first placed the Property in single and separate ownership
and created a lot of nonconforming size. Without offering any evidence on that
issue, ABH could not and did not meet its burden of demonstrating that a
predecessor-in-title did not create the hardship from which ABH now seeks relief.
Because we believe the self-created nature of such a hardship could not be cured
merely by reconveying the Property, we agree with the Board that ABH has not
shown the requisite hardship to obtain variance relief.
C. Ostensibly Confiscatory Zoning
ABH argues that it must be allowed to make reasonable use of the
Property by constructing a reasonably sized home on the lot. Otherwise, ABH
posits, the zoning ordinance has the effect of confiscating the Property by depriving
ABH of the ability to use it for a permitted purpose. As stated above, as a general
rule, a property owner must be allowed to make reasonable use of his property. W.
Goshen Twp., 538 A.2d at 955. However, the mere existence of a nonconforming
lot does not automatically entitle its owner to relief from applicable zoning
18
requirements. Specifically, a nonconformity created after a zoning ordinance has
been enacted does not entitle the property owner to zoning relief. See, e.g., Parkside,
532 A.2d at 50.
Here, the Township’s zoning ordinance provides for a special exception
to allow construction on an undersized lot, where the lot’s size has been rendered
nonconforming by the ordinance’s enactment. LOWER PROVIDENCE TWP., PA.
ZONING CODE, § 143-145 (2006). Requiring the property owner to demonstrate that
the nonconforming status predated the ordinance’s enactment is a reasonable
precondition to obtaining a special exception and one that ABH does not challenge.
As this Court explained in Cottone, where contiguous properties with a
single owner are rendered nonconforming in size by a later-enacted zoning
ordinance, they are presumed to have merged for zoning purposes. 954 A.2d at
1277. Therefore, it also is reasonable to require the owner of a nonconforming lot
to show that the lot had not merged with other contiguous lots under a common
owner at the time the zoning ordinance was enacted.
As explained in Section A above, ABH simply failed to make that
required showing here. Its failure to meet its burden of proof does not render the
Township’s zoning ordinance confiscatory.
D. Future Zoning Issues Regarding Movie Lots
In considering whether to grant ABH’s requests for a special exception
and variances, the Board expressed concern that granting relief here might lead to a
flood of other demands for zoning relief regarding the many undersized movie lots
that remain as non-buildable lots in the Township. ABH insists that this was error
and that the Board should have decided ABH’s applications for relief solely on their
19
own merits. Although this argument has facial appeal, we need not reach it. The
Board’s decision was amply supported by the record and applicable law, even
without its reliance on its expressed concerns about opening the floodgates of
litigation over future requests for special exceptions and variances regarding other
undersized lots. Therefore, any error in considering such concerns was harmless.
IV. Conclusion
Based on the foregoing discussion, we affirm the trial court’s order
denying ABH’s appeal from the Board’s decision.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ABH Builders, Inc., :
Appellant :
:
v. :
:
Lower Providence Township : No. 889 C.D. 2020
Zoning Hearing Board :
ORDER
AND NOW, this 22nd day of December, 2022, the order of the Court
of Common Pleas of Montgomery County dated August 7, 2020 is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge