M. Kosek and C. Walsh v. Dallas Borough ZHB and Dallas Borough ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Kosek and Chris Walsh :
: No. 846 C.D. 2017
v. :
: Argued: April 10, 2018
Dallas Borough Zoning Hearing :
Board and Dallas Borough :
:
Appeal of: Dallas Borough :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 11, 2018
Dallas Borough appeals from the June 5, 2017 order of the Luzerne
County Court of Common Pleas (trial court), which reversed the decision of the Dallas
Borough Zoning Hearing Board (Board) and sustained the appeal of Mary Kosek and
Chris Walsh (Applicants).
Facts and Procedural History
Applicants are the owners of certain real property located at 13 Village
Circle Drive, Dallas Borough (Borough), Luzerne County, Pennsylvania (Property).
The Property is located in a R-1 single and two-family residential district.
On March 8, 2016, Applicants filed an application to construct a two-story
garage on the Property. This application was denied on March 18, 2016. On April 6,
2016, Applicants filed a second application for a variance/special exception, which was
amended on April 20, 2016, and an appeal of municipal action. The amended
application sought relief from Article 5, section 501.5(c) (minimum front yard setback
of 30 feet) and Article 8, section 805.4 (variance for two-story garage additions) of the
Dallas Borough Ordinance. (Borough’s brief, at Exhibit A.) Specifically, the amended
application requested (1) a special exception for a 1,680-square-foot two-car garage
addition, exceeding the 35% floor area of a nonconforming building; (2) a special
exception for a 20-foot by 25-foot second floor addition above the existing
nonconforming first floor addition; (3) an 8-foot variance for the garage addition to
conform to the front yard setback; and (4) a 100% variance and special exception for
the proposed nonconforming second-story addition above the preexisting
nonconforming first floor addition to match the first floor nonconforming layout.
(Reproduced Record (R.R.) at 2a.)
The Board conducted a hearing on June 2, 2016, to consider the amended
application. Applicants presented the testimony of Mary Kosek and contractor Jeff
Morris. Applicants’ counsel, Joseph J. Mashinski, Esquire, described the Property as
located on a “cul-de-sac off of [sic] another cul-de-sac”; explained that the Property is
sloped; and represented that a variance was not being requested for the entire Property.
(R.R. at 36a-37a; Notes of Transcript (N.T.), 6/2/16, at 18-19.) He also stated that,
with respect to the portion of the Property for which a variance was being requested,
there was “already a nonconforming use” because an addition was built on the Property
prior to the adoption of the applicable zoning ordinance. (R.R. at 37a-38a; N.T., 6/2/16,
at 19-20.) Mr. Morris testified that the existing addition measured approximately 2,200
to 2,300 square feet and that the dimensions of the proposed two-story garage would
be 30 feet by 20 feet. (R.R. at 45a-46a; N.T., 6/2/16, at 26-27.) Ms. Kosek, one of the
2
Applicants, testified, “We discussed earlier that if we needed to scale it back a little bit
to have this go further we would be willing to look at that.” (R.R. at 47a; N.T., 6/2/16,
at 29.) Attorney Mashinksi affirmed her representation, explaining, “[W]e are applying
as is and . . . we would like to seek approval as [is], but . . . if the condition is to scale
back a little bit . . . [Applicants] are certainly open to doing that, but, I mean, this project
is to improve the character of the home.” (R.R. at 48a; N.T., 6/2/16, at 30.)
Tracey Carr, the Borough’s Zoning Officer, testified on behalf of the
Borough. Ms. Carr represented that the setback requirement at the time the house was
constructed would have been the same as it is today, i.e., 30 feet. (R.R. at 49a; N.T.,
6/2/16, at 31.) Ms. Carr had “no explanation as to why the house was built within the
front yard setback.” (Id.) Ms. Carr also acknowledged that the house was not the only
one in the neighborhood that was built in that manner. (R.R. at 50a; N.T., 6/2/16, at
32.) Mark Vanetten, the adjoining property owner, also offered a public comment,
expressing his opinion of Applicants’ request. (R.R. at 64a-68a; N.T., 6/2/16, at 46-
50.)
At the hearing, the Board asked Applicants whether the relief requested
was the minimum to afford them the necessary relief from the Ordinance. Although
Applicants admitted that the variance could be reduced and a smaller garage could be
built, Applicants did not reduce the size of their request, and maintained their request
for relief as submitted. Ultimately, the Board denied Applicants’ request for the
variance, and issued its findings of fact and conclusions of law on June 13, 2016,
concluding that Applicants did not satisfy their burden of demonstrating that the
requested variance represented the minimum variance that would afford them relief
and the least modification possible of the at-issue Ordinance. (Board’s op. at
Conclusion of Law No. 7; R.R. at 86a.)
3
On June 29, 2016, Applicants appealed the Board’s decision to the trial
court. The Borough filed a notice of intervention on July 5, 2016. The trial court heard
oral argument on May 15, 2017, at which time no additional evidence was presented
by either party. After a visit to the property on May 19, 2017, the trial court issued its
June 5, 2017 opinion and order reversing the decision of the Board and sustaining
Applicants’ zoning appeal. (R.R. at 135a-38a.) The Borough filed a notice of appeal
with this Court on June 22, 2017. (R.R. at 193a.)
Discussion
Generally, when the trial court does not take additional evidence in a
zoning appeal, “the scope of review of this [C]ourt is to determine whether the
governing body of the municipality abused its discretion or committed an error of law.”
Claremont Properties, Inc. v. Board of Township Supervisors of Middlesex Township,
546 A.2d 712, 714 (Pa. Cmwlth. 1988). However, when the trial court takes additional
evidence in such an appeal, the trial court decides the case de novo, and the scope of
review of this Court “is to decide whether the [trial court], rather than the governing
body, committed abuse of discretion or error law.” Id.In this case, the trial court explained that, “In light of the sparse record
before it, [the trial] [c]ourt conducted a view [of the Property] on May 19, 2017[,] at
which all parties were represented.” (Trial court’s op. at ¶2; R.R. at 144a.) Because
the trial court considered evidence that was not considered by the Board, we must
determine whether the trial court—rather than the Board—committed an error of law
and/or abused its discretion. “[I]f the lower court considers any testimony that was not
before the Board, the lower court must decide the case on the merits, normally making
findings of fact and conclusions of law, so that . . . we can determine the basis for the
4
lower court’s decision and whether there is testimony to support it.” Borough of Baden
v. Boron Oil Co., 297 A.2d 833, 834 (Pa. Cmwlth. 1972).
On appeal, the Borough argues that the trial court erred and/or abused its
discretion by (1) reversing the decision of the Board; (2) failing to identify or consider
the elements that Applicants needed to prove to justify granting the variance; (3)
sustaining the zoning appeal when the June 5, 2017 order did not make a finding that
the requested variance was the minimum that would afford Applicants relief; (4)
concluding that the character of the community would not be altered if the variance
was granted; and (5) making findings of fact and conclusions of law with no basis in
the record.1
1
Although the amended application appeared to request a variance and special exception, the
parties did not pursue a special exception. This decision was discussed at the May 15, 2017 hearing
before the trial court:
[TRIAL] COURT: As we’re aware, a variance is different from a
special exception. A special exception is a permitted use under the
Code where certain criteria is testified to and accepted by the Board.
A variance, however, is a departure from the [Municipalities Planning]
Code and requires the Board to review as to whether or not the variance
which in many substances [sic] can be used or setback requirements
poses harm to the municipality. What did we grant? What did we
deny? Because we have all three before us. Mr. Bufalino?
[BOARD’S COUNSEL]: Yes. If you don’t mind, just to summarize,
the application was denied on the date in question and then the appeal
followed. So, there was not a partial granting and a partial denial.
[TRIAL] COURT: When they denied, did you separately address the
various requests made by [Applicants]?
[APPLICANTS’ COUNSEL]: Judge, as I understand it, the only issue
is the variance request that is before us, the setback variance request.
[TRIAL] COURT: That’s why I’m asking. I’m trying to narrow this.
5
In Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 721 A.2d 43(Pa. 1998), our Supreme Court addressed the standard for analyzing requests for a
dimensional variance. “When seeking a dimensional variance within a permitted use,
the owner is asking only for a reasonable adjustment of the zoning regulations in order
to utilize the property in a manner consistent with the applicable regulations.” Id. at
47. “Thus, the grant of a dimensional variance is of lesser moment than the grant of a
use variance, since the latter involves a proposal to use the property in a manner that is
wholly outside the zoning regulation.” Id.
First, the Borough asserts that the trial court committed error and/or
abused its discretion when it reversed the Board’s decision without identifying any
specific error of law made by the Board. The Borough notes that, while the trial court’s
Rule 1925(a) opinion determined that the Board abused its discretion by failing to
adequately consider the unique facts of the record and the existing character of the
community, the trial court did not include any facts or evidence to support such an
allegation. We disagree.
The trial court’s opinion, which was attached to its June 5, 2017 order,
included findings of fact and conclusions of law. The opinion notes that the Board
orally denied the variance on the record upon the conclusion of the zoning hearing.
The trial court reviewed the transcript of that hearing and determined that the transcript
suggested that “the Board came to the hearing with a predetermined mindset to
negotiate a smaller footprint prior to the taking of any testimony.” (Trial court op. at
[APPLICANTS’ COUNSEL]: There was not an opposition to the
actual use. It was a permitted use, and that solved it. From our
perspective—to me, this is the classic case where a variance should be
granted.
(R.R. at 130a; N.T., 5/15/17, at 3-4.)
6
2; R.R. at 144a.) Further, the trial court’s opinion expressly stated that the Board’s
“formal decision failed to discuss, elaborate or explain in detail the decision reached,
nor did it address the specific facts and considerations as to the property.” Id. Based
upon these statements, we must conclude that the trial court did, in fact, identify
specific errors made by the Board in reaching its decision and, also, that the trial court
provided a discernable rationale, albeit succinctly.
The Borough’s second argument is in the same vein, as it contends that
that the trial court committed error and/or abused its discretion by failing to identify
and consider the elements that Applicants needed to prove to justify approval of the
variance.
Under section 910.2 of the Pennsylvania Municipalities Planning Code
(MPC),2 “the board may grant a variance, provided that all of the following findings
are made where relevant in a given case”:
(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
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.
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101–11202.
7
(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.
Section 910.2(a)(1)-(5) of the MPC, added by the Act of December 21, 1998, P.L.
1329, 53 P.S. §10910.2(a)(1)-(5) (emphasis added).
The first factor considers whether the Property includes “unique physical
circumstances or conditions” and that any hardship to the Applicants was caused by
those circumstances and not their own actions. 53 P.S. §10910.2(a)(i). In its opinion,
the trial court expressly stated that the Property “is of irregular shape, being one of four
properties fronting on a cul-de-sac. As the [P]roperty approaches the cul-de-sac, it gets
narrower, closer to the street, and violative of the new existing frontage setback
requirements. To the rear of the property, the land slopes downward . . . .” (Trial court
op. at 2; R.R. at 144a.) This statement was based upon the trial court’s May 19 view
of the property. Thus, we find that the trial court appropriately considered this factor
in reaching its decision, and that evidence of record supports the finding.
The second factor considers whether, due to the unique physical
circumstances of the Property, it would be impossible to develop it in strict conformity
with the applicable Ordinance, making a variance necessary to enable reasonable use
of the Property. 53 P.S. §10910.2(a)(ii). To this end, the trial court explained that the
downward slope of the land in the rear of the Property “makes moving the proposed
8
garage back from its requested space impracticable if not unduly burdensome,” and
acknowledged that “[a]n existing pool also inhibits moving the proposed garage back
from the proposed location.” (Trial court op. at 2; R.R. at 144a.) Again, the trial court’s
findings were based upon its view of the Property after oral argument. As such, we
conclude that the trial court adequately addressed the second factor enumerated in
section 910.2(a) of the MPC.
The third factor asks whether the Applicants created the undue hardship.
53 P.S. §10910.2(a)(iii). When considering undue hardship in relation to a dimensional
variance request, “courts may consider multiple factors, 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.” Hertzberg, 721
A.2d at 50. In Hertzberg, the Supreme Court explained that, “[t]o hold otherwise would
prohibit the rehabilitation of neighborhoods by precluding an applicant who wishes to
renovate a building in a blighted area from obtaining the necessary variances.” Id.
With respect to this consideration, the trial court expressly found that the
Applicants “purchased the [P]roperty in its present non-conforming status in 2013.”
(Trial court op. at 2; R.R. at 144a.) The trial court also found that the structure located
on the Property “was already a pre-existing non-conforming use, having been built in
the 1980’s [sic] prior to the adoption of the Zoning Ordinance.” (Id.) While the
Applicants cannot seek a variance on the basis of a hardship that existed at the time of
their purchase, the facts of this case are distinguishable, as the Property was already
nonconforming at the time it was purchased. See Appeal of McClure, 203 A.2d 534(Pa. 1964). Additionally, the trial court explained that the downward slope of the rear
portion of the Property would make altering the plans for the proposed garage unduly
9
burdensome. Based upon these findings, we must conclude that the trial court
adequately considered the third factor of section 910.2(a) in reaching its decision, as it
is clear that any undue hardship was not caused by the Applicants.
The fourth factor considers whether the variance, if authorized, would
“alter the essential character of the neighborhood” or “substantially or permanently
impair the appropriate use or development of adjacent property, [or would] be
detrimental to the public welfare.”3 53 P.S. §10910.2(a)(iv). Once again, the trial court
adequately addressed this factor, expressly stating that “[t]he proposed structure
[would] not impair the appropriate use or development of the adjacent properties,” and
that it would not “be detrimental to the public welfare as the [Applicants] constitute the
vehicle traffic utilizing what is basically a dead end street.” (Trial court op. at 2; R.R.
at 144a.) Finally, the trial court found that the proposed garage “would not change the
character of the neighborhood, but would be consistent with neighboring properties.”
(Trial court op. at 2-3; R.R. at 144a-45a.) As was the case with the first three factors,
the trial court based this finding upon its viewing of the Property.
The Borough argues that the testimony of Mark Vanetten, who owns the
land adjacent to the Property, directly contradicts the trial court’s determination.
Specifically, the Borough asserts that, in his testimony before the Board, Mr. Vanetten
expressed a concern as to whether the size of the proposed garage would fit into the
neighborhood, and whether the proposal would impact his own property. (R.R. at 64a-
65a; N.T., 6/2/16, at 46-47.)
However, it is important to consider Mr. Vanetten’s testimony in its
entirety, along with the testimony of Mr. Morris, Applicants’ contractor:
3
The Borough raises a separate issue on appeal regarding whether the trial court erred in
concluding that the character of the community would not be altered if the variance was granted. We
will address this argument as it relates to the requirements of section 910.2(a).
10
Mr. Vanetten: Just the overall size compared to the
neighborhood. It’s a neighborhood of 2,200 to 3,000 square
foot homes, three bedrooms, all pretty similar to [sic] lot
sizes. And this seems to be a big footprint on this lot which
is going to create kind of a crowding effect of the immediate
surroundings. I believe that the single-story building used to
be a garage at one point and it was converted into the family
room when the place was built. But, you know, it really
impacts more than their property, my property.
Mr. Morris: I don’t mean to interrupt either but that’s not
true because there is a four-foot crawl space underneath that
so that was not a garage at any time. The foundation’s up
out of the ground at least 18 inches to two feet. And I mean,
there’s no way that they went in and excavated all that, had
that as a garage at any point.
Mr. Vanetten: I certainly appreciate your commentary. And
that was the thought that crossed my mind, you know, when
I was speaking with [the Applicants], that, you know, no one
wants to be the most expensive house on the block or the
biggest. And if you look directly across the street from them,
square footage they’re going to be larger but it’s a sprawling
house and it has a carport and then a garage. So optically,
you know, it certainly appeared a lot bigger. So I don’t think
that this is going to have that impact.
Mr. Morris: Their property sits pretty far back off the street.
It’s not eight foot [sic] from the street, that’s the difference.
They’re not really comparable properties.
Mr. Vanetten: I meant—directly across the street there’s
only a few on that cul-de-sac. I mean, that’s why I’m using
that as an example, you know, because it’s not going to be
this monstrosity with these tiny homes around it. As I
indicated, you know, their property—and eight feet is only
that one corner the way the house is built. It’s not the entire
house right up against the setback. This is the front of their
11
house right here, their property. And this, you know, this is
the other cul-de-sac. So you know, with all due respect, I
don’t think it’s going to be a concern. I think it’s going to
increase the property values and be much more aesthetically
pleasing to the neighborhood.
(R.R. at 65a-68a; N.T., 6/2/16, at 47-50.) After reviewing Mr. Vanetten’s testimony,
we do not agree that such testimony directly contradicts the trial court’s finding that
the requested variance would not alter the character of the neighborhood. Rather, while
Mr. Vanetten initially expressed his concern about the impact of the proposed garage
on the other neighborhood properties, the further explanation of the plans by Mr.
Morris seemed to convince Mr. Vanetten that the garage would actually enhance the
Property and surrounding property values.
Finally, section 910.2(a) tasks the court with considering a fifth factor—
whether “the variance, if authorized, [would] represent the minimum variance that
[would] afford relief and [would] represent the least modification possible of the
regulation in issue.” 53 P.S. §10910.2(a)(v).4 With respect to this factor, the trial court
found that the proposed location was limited due to the design and placement of the
current structure, and that moving the proposed structure back from its proposed
position would be “impracticable, if not unduly burdensome.” (Trial court op. at 2-3;
R.R. at 144a-45a.) However, the trial court did not consider whether a smaller structure
would satisfy the needs of the Applicants.
The record establishes that the issue regarding whether the requested
variance was the minimum variance that would afford Applicants relief was a core
issue considered by the Board. At the zoning board hearing, Applicants admitted
4
The Borough raises a separate issue on appeal regarding whether the trial court erred in
failing to make a finding that the requested variance was the minimum that would afford Applicants
relief. We will address this argument as it relates to the requirements of section 910.2(a).
12
through their testimony that a smaller garage could be built and that they would
consider such a reduction in size:
Ms. Kosek: We discussed earlier if we needed to scale it
back a little bit to have this go further we would be willing
to look at that. But that’s kind of what we came up with,
with our contractor, with the plans and what we didn’t realize
when we bought the house what our land exactly was, until
we talked to our neighbor across the street.
***
Attorney Mashinski: You know, as [Ms. Kosek] indicated,
you know, we are applying as is and, you know, we would
like to seek approval as is, but you know, if the condition is
to scale back a little bit, you know, the Appellant is certainly
open to doing that but, I mean, this project is to improve the
character of the home.
(R.R. at 46a-47a; N.T., 6/2/16, at 29-30.)
Based upon the fact that the trial court did not include a finding in its
opinion regarding the minimum variance requirement, and in light of Applicants’
testimony at the hearing before the Board, we must conclude that the trial court erred
in failing to address this issue.
We also note that the trial court did not consider whether the Applicants’
request constitutes a de minimis variance. “[E]ven where the requirements for a
variance have not been met, the Board may grant a de minimis variance ‘where only a
minor deviation from the zoning ordinance is sought and rigid compliance is not
absolutely necessary to protect the public policy concerns inherent in the ordinance.’”
Township of Middleton v. Zoning Hearing Board of Middletown Township, 682 A.2d
900, 901 (Pa. Cmwlth. 1996) (quoting Constantino v. Zoning Hearing Board of the
13
Borough of Forest Hills, 618 A.2d 1193, 1196 (Pa. Cmwlth. 1992)). In this case, the
Borough’s letter denying Applicants’ request acknowledges that the proposed
“[g]arage addition extends beyond the existing non-conforming setback line by 1.5
[feet],” thereby creating “[a]n additional front yard setback nonconformity.” (R.R. at
7a.) Because the proposed addition creates only an additional 1.5 feet of encroachment,
the trial court erred in failing to consider whether the Applicants’ request is a de
minimis variance.5
In the same vein, we also question whether Article 8, section 805.4
(variance for two-story garage additions) of the Dallas Borough Ordinance requires a
variance for a 1.5-foot extension of an existing nonconformity. The language of section
805.4 provides that “[a]ll extensions, expansions and enlargements of nonconforming
uses and structures shall require approval as a special exception.” Ordinance, Section
805.4 (emphasis added). As Applicants’ request proposes a 1.5-foot extension of a
nonconforming use, the trial court erred in failing to consider whether the request
5
The concurring opinion provides that, since Applicants have a home on the Property, they
have already made reasonable use of the same, and the inability to add a garage is not a hardship.
However, the presence of a home on the Property does not preclude the Applicants from making
reasonable use of the property (i.e., seeking to add a garage) and requesting a variance to do so when
unnecessary hardship and the other conditions for a dimensional variance have been met. The purpose
of a variance is to be able to develop and make reasonable use of one’s property. If grounds for a
variance could not be raised because a home already existed on one’s property, most variances could
not be granted. Here, it is not the inability to build a garage that constitutes the hardship, but the
conditions that exist on the Property that make adding the garage in conformance with the zoning
requirement an unnecessary hardship. After a site visit, the trial court found that (1) the lot was of
“irregular shape,” fronting on a cul-de-sac, narrowing as it approaches such cul-de-sac, and sloping
downward in the rear of the property; (2) such irregularities make compliance with the existing front-
yard setback requirements “impracticable if not unduly burdensome”; (3) the unnecessary hardship
was not created by Applicants, as it existed prior to their purchase of the property; and (4) the request
“will not impair the appropriate use or development of adjacent properties,” as the “other three
structures on the cul-de-sac have large attached garages” and the proposed garage would be
“consistent with neighboring properties.” (R.R. at 144a-45a.) Thus, the only factor to be considered
is whether the variance requested is de minimis.
14
required a special exception under Article 8, section 805.4 of the Dallas Borough
Zoning Ordinance.
Finally, the Borough asserts that the trial court erred in making findings
of fact and conclusions of law without a proper basis on the record. While the trial
court does not cite specific testimony or other evidence, it does indicate that its findings
are based upon its viewing of the Property, which occurred after oral argument before
the trial court. The trial court explained that the view was necessary because the record
before the Board was “sparse.” Thus, we find that the trial court based its findings of
fact and conclusions of law upon its viewing of the Property, and properly indicated
that in its order and opinion.
Conclusion
The trial court appropriately found that (1) the Property contained unique
physical circumstances causing undue hardship to the Applicants; (2) that those unique
circumstances made it impossible to develop the Property in strict conformity with the
Ordinances; (3) such undue hardship was not created by the Applicants; and (4) the
variance, if granted, would not alter the essential character of the neighborhood.
However, the trial court failed to address all necessary substantive requirements of
section 910.2(a) because it did not make a finding as to whether the requested variance
represented the minimum variance that will afford relief and will represent the least
modification possible of the regulation in issue. The trial court also failed to consider
whether Applicants’ request constituted a de minimis variance and/or a special
exception pursuant to the relevant sections of the Dallas Borough Zoning Ordinance.
Accordingly, we vacate the trial court’s June 5, 2017 order, and remand
the matter to the trial court to issue a new order and opinion, which includes a finding
regarding the minimum variance requirement of section 910.2(a)(5) of the MPC;
15
whether Applicants’ request is a de minimis variance; and whether a special exception
should be granted.
________________________________
PATRICIA A. McCULLOUGH, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Kosek and Chris Walsh :
: No. 846 C.D. 2017
v. :
:
Dallas Borough Zoning Hearing :
Board and Dallas Borough :
:
Appeal of: Dallas Borough :
ORDER
AND NOW, this 11th day of June, 2018, the June 5, 2017 order of the
Court of Common Pleas of Luzerne County (trial court) is vacated. The matter is
remanded to the trial court to issue a new order and opinion, consistent with this
opinion, which includes a finding regarding the minimum variance requirement of
section 910.2(a)(5) of the Pennsylvania Municipalities Planning Code, Act of July
31, 1968, P.L. 805, as amended, 53 P.S. §10910.2(a)(5).
Jurisdiction is relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary Kosek and Chris Walsh :
:
v. : No. 846 C.D. 2017
: ARGUED: April 10, 2017
Dallas Borough Zoning Hearing :
Board and Dallas Borough :
:
Appeal of: Dallas Borough :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION
BY SENIOR JUDGE LEADBETTER FILED: June 11, 2018
I concur in the result reached by the majority, at least in part. I write
separately to express my view that, since the property owners already have a home
on the property, they have no hardship entitling them to a variance, dimensional or
otherwise, in order to build a garage. While the quantum of proof required to
establish unnecessary hardship for a dimensional variance is lesser than when
seeking a use variance, an applicant nonetheless must present evidence as to each of
the conditions listed in the zoning ordinance, including unnecessary hardship.
Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998).
Although the Court in Hertzberg eased the requirements, it did not remove them.
Doris Terry Revocable Trust v. Zoning Bd. of Adjustment of City of Pittsburgh, 873
A.2d 57 (Pa. Cmwlth. 2005). Therefore, the minimum variance requirement of
Section 910.2(a)(5) of the MPC is irrelevant. However, they may be entitled to a
variance which is de minimis, or to a special exception, so I agree that the case
should be remanded so that the trial court can address those issues. See Hawk v. City
of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d 1061, 1066 (Pa. Cmwlth. 2012)
(holding that there is no set criteria for determining what will be considered de
minimis; the grant of such a variance depends upon the circumstances of each case).
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
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