In Re: Application of D.W. Surman, Jr. ~ Appeal of: D.W. Surman, Jr. ( 2019 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Application of                             :
    David Walter Surman, Jr.                          :
    :
    :   No. 1381 C.D. 2018
    Appeal of: David Walter Surman, Jr.               :   Submitted: June 3, 2019
    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: June 26, 2019
    David Walter Surman, Jr. (Landowner) appeals from the September 12,
    2018 order of the Court of Common Pleas of Bucks County (trial court) that affirmed
    the decision of the Milford Township Zoning Hearing Board (Board) denying a
    variance for construction of an addition without the benefit of a building permit.
    Upon review, we affirm.
    Landowner is the owner of property located at 2240 Spinnerstown
    Road, Quakertown (Property), in Milford Township (Township). Board’s Findings
    of Fact (F.F.) 1. The Property is zoned Village Center-2 (VC-2) under the Township
    Portion of the Quakertown Area Zoning Ordinance1 (Zoning Ordinance). F.F. 19.
    At the time Landowner purchased the Property in 2013, the Property had an existing
    1
    Milford Twp., Pa., Milford Township Portion of the Quakertown Area Zoning Ordinance
    (2005).
    nonconforming use for the manufacture and sale of furniture. See F.F. 20 & 23.
    Landowner applied to the Board for a special exception to convert the
    nonconforming use to a new nonconforming use for sales, repairs and warehousing
    of scientific and industrial equipment. F.F. 20. The Board granted the special
    exception on February 12, 2013. 
    Id. On April
    22, 2017, a fire occurred at the Property, and the fire
    department responded. F.F. 2. Jim Young (Young), the Township’s Zoning Officer
    and Fire Marshal, inspected the Property as the Fire Marshal and discovered multiple
    drums containing chemicals and hazardous and highly flammable materials. F.F. 3.
    Young concluded that Landowner was operating a manufacturing use on the
    Property other than the use previously approved by the Board and was in violation
    of the Zoning Ordinance. F.F. 7 & 10. Young also observed that Landowner had
    built an addition on the Property without ever obtaining a permit.        Notes of
    Testimony (N.T.) at 17, Reproduced Record (R.R.) at 20a; see F.F. 13.
    Subsequently, the Township, through Zoning Officer Young, issued a
    Notice of Violation (NOV) against Landowner for violations of Sections 401 and
    403 of the Zoning Ordinance, as well as for violating the conditions of the special
    exception granted by the Board’s Decision of February 12, 2013, all in connection
    with the sale, storage and manufacture of chemicals on the Property; the NOV also
    cited a violation of Section 1002 of the Zoning Ordinance for constructing an
    addition on the Property without the benefit of a permit. See NOV, R.R. at 202a-
    04a. Landowner contested the NOV and sought a new special exception to use the
    Property to manufacture and sell chemicals; Landowner also sought a variance from
    Section 1002 of the Zoning Ordinance to allow the 1,248-square-foot addition to
    remain despite having been built without a building permit. Board’s Decision at 1.
    2
    The Board held a hearing at which the Township was granted party status. 
    Id. Young and
    Landowner testified, and several neighbors participated by asking
    questions or making statements. See 
    id. at 1-2;
    N.T. at 3, R.R. at 6a. The Township,
    Landowner and the Board offered exhibits which were entered into evidence.
    Board’s Decision at 2-3; see N.T. at 3-4, R.R. at 6a-7a. The Board accepted Young’s
    testimony as credible and rejected Landowner’s testimony. F.F. 14-15. The Board
    denied Landowner’s requests for a variance and special exception and upheld the
    NOV. Board’s Order dated 9/15/17. Landowner appealed to the trial court, which
    affirmed. Landowner then appealed to this Court.2
    Before this Court, Landowner does not raise any issues challenging the
    Board’s decision regarding the NOV or the special exception. Rather, Landowner
    raises challenges related only to the Board’s denial of the variance from Section
    1002 of the Zoning Ordinance to allow for an addition built on the property without
    the benefit of a building permit. Specifically, Landowner argues that trial court erred
    as a matter of law and/or abused its discretion in upholding the Board’s denial of the
    variance, because the trial court failed to take into account that: (1) a denial of the
    variance would not serve any useful purpose and the addition to the Property was
    not visible nor objectionable; (2) Landowner built the addition on preexisting footers
    already located on the Property; (3) Landowner used the addition for the purpose of
    expanding his business; (4) Landowner applied for a permit after the addition was
    built; and (5) Landowner’s expert engineering reports detailed the soundness of the
    2
    Where, as here, the trial court does not take additional evidence, our scope of review is
    limited to determining whether the Board committed an error of law or “a manifest abuse of
    discretion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 
    462 A.2d 637
    , 639 (Pa. 1983).
    A zoning board abuses its discretion “only if its findings are not supported by substantial
    evidence.” 
    Id. at 640.
    3
    addition and that the addition was built to code. Before addressing each argument,
    we review the general principles regarding a variance.
    To establish entitlement to a variance,3 the Pennsylvania Municipalities
    Planning Code (MPC)4 requires that an applicant establish all of the following five
    factors:
    (1) That there are unique physical circumstances or
    conditions [of the property] . . .
    (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 . . .
    (3) That such unnecessary hardship has not been created
    by the [applicant].
    (4) That the variance, if authorized, will not alter the
    essential character of the neighborhood . . . nor be
    detrimental to the public welfare.
    (5) That the variance, if authorized, will represent the
    minimum variance that will afford relief . . . .
    Section 910.2(a) of the MPC, added by the Act of December 21, 1988, P.L. 1329,
    53 P.S. § 10910.2(a). When addressing the element of unnecessary hardship in
    variance cases that do not involve a use variance, “[c]ourts 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 v. Zoning Bd. of Adjustment of Pittsburgh, 
    721 A.2d 43
    ,
    3
    A variance is a request seeking to vary a requirement in the zoning ordinance. Robert S.
    Ryan, Pennsylvania Zoning Law and Practice § 6.1.2 (2001).
    4
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101–11202.
    4
    50 (Pa. 1998). Although Hertzberg eased the requirements for a variance, it did not
    remove them. Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 
    118 A.3d 1
    , 8 (Pa.
    Cmwlth. 2015). Despite the more relaxed standard set forth in Hertzberg, it is still
    the case that “[t]he burden on an applicant seeking a variance is a heavy one, and the
    reasons for granting the variance must be substantial, serious and compelling.”
    Singer v. Phila. Zoning Bd. of Adjustment, 
    29 A.3d 144
    , 149 (Pa. Cmwlth. 2011).
    Further, a variance “is appropriate only where the property, not the person, is subject
    to hardship.” Yeager v. Zoning Hearing Bd. of Allentown, 
    779 A.2d 595
    , 598 (Pa.
    Cmwlth. 2001) (emphasis in original) (internal quotation marks and citation
    omitted). “[A] variance will not be granted solely because the applicant will suffer
    an economic hardship if he does not receive the same.” Soc’y Created to Reduce
    Urban Blight v. Zoning Bd. of Adjustment of Phila., 
    921 A.2d 536
    , 545 (Pa. Cmwlth.
    2007), aff’d sub nom. Spahn v. Zoning Bd. of Adjustment, 
    977 A.2d 1132
    (Pa. 2009).
    Denial of the variance would not serve any useful purpose and
    the addition to the Property was not visible nor objectionable
    Landowner first argues that the trial court erred in failing to take into
    account that a denial of the variance would not serve any useful purpose and further
    points out that the addition was not visible from the highway, nor was it
    objectionable to the neighbors. Based on the aforementioned standards set forth in
    the MPC, we reject Landowner’s argument. Neither the trial court nor the Board
    was required to consider whether the variance would serve any useful purpose or
    whether the addition to the Property was visible or objectionable. See Section
    910.2(a) of the MPC, 53 P.S. § 10910.2(a). Although Landowner relies on the
    Supreme Court case of Appeal of Mack, 
    122 A.2d 48
    , 50 (Pa. 1956), to support his
    5
    argument, we note that Mack was decided before the adoption of the MPC and,
    therefore, is not controlling.
    We further note that the Board concluded that Landowner was aware
    that he should have applied for a permit to build the addition and failed to do so.
    Board’s Conclusions of Law (C.L.) 17. Indeed, the Board found that Landowner
    admitted to building the addition without a permit and to being asked whether he
    had obtained a building permit while the construction was underway. F.F. 13; see
    C.L. 20; N.T. at 123-24, R.R. at 126a-27a. Consequently, to the extent there is any
    hardship, such as an economic hardship of having to remove the addition, such
    hardship is the result of Landowner’s own actions and, therefore, is self-created. See
    Section 910.2(a)(3) of the MPC, 53 P.S. § 10910.2(a)(3) (stating hardship cannot be
    created by applicant). Further, such economic hardship alone does not justify the
    grant of a variance, see Soc’y Created to Reduce Urban Blight, as it is the person,
    not the property, subject to the hardship, see Yeager.
    Landowner built the addition on preexisting
    footers already located on the Property
    Landowner argues that the addition was de minimis, and therefore, his
    request for a variance should have been granted. He asserts the addition is de
    minimis because he contends that he built the addition on a foundation that already
    existed when he purchased the Property, the addition is within the Property’s lines,
    and the addition takes up less than five percent of the total square footage of the
    Property. Landowner’s Brief at 11.
    The de minimis variance doctrine is a narrow exception to
    the heavy burden of proof involved in seeking a variance.
    The doctrine applies only where: (1) a minor deviation
    6
    from the dimensional uses of a zoning ordinance is sought,
    and (2) rigid compliance with the zoning ordinance is not
    necessary to protect the public policy concerns inherent in
    the ordinance.
    Appletree Land Dev. v. Zoning Hearing Bd. of York Twp., 
    834 A.2d 1214
    , 1216 (Pa.
    Cmwlth. 2003). “The grant of a de minimis variance is a matter of discretion with
    the local zoning board.” Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 
    38 A.3d 1061
    , 1066 (Pa. Cmwlth. 2012).
    Here, Landowner violated the Zoning Ordinance by not obtaining a
    building permit and, after construction, sought a variance from that provision of the
    Zoning Ordinance to allow for the addition. This Court has stated, “[t]here is a
    strong policy against assisting landowners who violate a zoning ordinance, whether
    negligently or intentionally . . . .” 
    Appletree, 834 A.2d at 1218
    . We have held that
    an applicant’s failure to determine the zoning requirements, whether mistakenly or
    intentionally, “bars [an applicant’s] ability to invoke the exceptional standard for a
    de minimis variance.” 
    Id. Accordingly, Landowner
    is not entitled to relief under the
    doctrine of a de minimis variance.
    The addition was built for the purpose of expanding his business
    Landowner asserts that the trial court erred by not reversing the Board’s
    decision because a nonconforming commercial use may be expanded under the
    doctrine of natural expansion. Landowner asserts that he introduced evidence at the
    hearing that the variance was needed to allow him to expand his business of selling
    scientific and industrial equipment, for which he received a special exception in
    2013, as well as to store boxes of equipment, and that the addition was built for that
    purpose.
    7
    “Under the doctrine of natural expansion, a nonconforming use may be
    extended in scope as the business increases in magnitude, over ground previously
    occupied by the owner for that business at the time of the enactment of the applicable
    zoning ordinance.” Finegan v. Bd. of Supervisors of Earl Twp., 
    826 A.2d 76
    , 78–79
    (Pa. Cmwlth. 2003) (emphasis added). “[T]he doctrine of natural expansion is
    limited to lawful, i.e.[,] valid, nonconforming uses.” Hitz v. Zoning Hearing Bd. of
    S. Annville Twp., 
    734 A.2d 60
    , 67 (Pa. Cmwlth. 1999) (emphasis in original).
    Section 808 of the Zoning Ordinance permits a change in use from one
    nonconforming use “to another nonconforming use[,]” under certain conditions, by
    special exception. Zoning Ordinance § 808; see also F.F. 7. Here, the Property was
    granted a special exception in 2013 allowing for the change from a nonconforming
    use for the manufacture and sale of furniture to another nonconforming use for sales,
    repairs and warehousing of scientific and light industrial equipment. C.L. 9. The
    Board credited Young’s testimony that the chemical use being conducted in the
    building was a Zoning Ordinance Section 404.G1 Manufacturing Use and that such
    use is not permitted in the VC-2 Zoning District in which the Property is located.
    F.F. 10, 14 & 19. The Board further found that Landowner’s prior special exception
    application made no mention of a chemical business. F.F. 24. The Board concluded
    that, in 2013, it was not asked to and “did not grant [Landowner] a special exception
    for a manufacturing use, particularly one involving hazardous and flammable
    chemical[s] . . . .” C.L. 13. The Board further concluded that its prior 2013 decision
    “granted an entirely different use under different conditions.” C.L. 18. A new,
    entirely different use does not fall within the purview of the doctrine of natural
    expansion, as the expansion is not for that particular business that is the
    nonconforming use. See Finegan. Consequently, Landowner’s argument that the
    8
    variance should have been granted under the doctrine of natural expansion lacks
    merit.
    Landowner applied for a permit after the addition was built
    Landowner argues that the sole basis for the Board’s denial of the
    variance was that Landowner was aware that he should have applied for a permit but
    failed to do so.       Landowner states that on August 22, 2017, pursuant to the
    Township’s permit application allowing a post-construction application for a
    building to be filed, Landowner filed a permit application to have the already built
    addition inspected and approved by the Township. Landowner’s Brief at 14.
    Landowner states the Township denied his application, in part because the Board
    denied his variance request. 
    Id. Landowner contends
    that “[t]he trial court erred in
    denying [Landowner’s] land use appeal, by failing to consider evidence that after
    the hearing, [Landowner] applied for a permit and was refused by Milford
    Township.” 
    Id. The trial
    court did not accept additional evidence. The information
    regarding Landowner’s application submitted after the Board’s hearing was not part
    of the record. See generally Board’s Decision at 2-4 (listing exhibits and stating
    record was closed on August 8, 2017). Therefore, the trial court did not err in failing
    to consider it. See Tennyson v. Zoning Hearing Bd. of W. Bradford Twp., 
    952 A.2d 739
    (Pa. Cmwlth. 2008) (stating assertions that are outside the record may not be
    considered on appeal). Further, Landowner makes no argument that the trial court
    erred by failing to provide the opportunity to take additional evidence.5 In any event,
    5
    Although Landowner’s Brief In Support of Land Use Appeal filed with the trial court
    states that at a conference before the trial court held on March 9, 2018, the trial court ruled that it
    9
    the trial court does not have jurisdiction to determine in the first instance whether
    the denial of a permit was appropriate. See Section 909.1(a)(3) of the MPC, added
    by the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10909.1(a)(3) (stating, “[t]he
    zoning hearing board shall have exclusive jurisdiction to hear and render final
    adjudications in . . . [a]ppeals from the determination of the zoning officer, including,
    but not limited to, the granting or denial of any permit”). Therefore, Landowner’s
    argument lacks merit.
    Landowner’s expert engineering reports
    Lastly, Landowner argues that the trial court erred by failing to take
    into account that his expert evidence showed that the addition was structurally sound
    and “met all applicable [Township] Code standards.” Landowner’s Brief at 14-15.
    As the trial court took no additional evidence, we are limited to reviewing whether
    the Board committed an error of law or abused its discretion. See Valley View Civic
    Ass’n v. Zoning Bd. of Adjustment, 
    462 A.2d 637
    , 639 (Pa. 1983). Therefore, the
    issue should be whether the Board, not the trial court, committed an abuse of
    discretion or an error of law by not taking into account Landowner’s evidence.
    Over the Township’s objection, the Board allowed Landowner to
    introduce evidence purporting to establish the structural integrity of the addition and
    further purporting to establish compliance with the code. See Original Record Item
    would not take any additional evidence relating to the appeal, it does not appear that Landowner
    made any motion before the trial court asserting that the appeal required the presentation of
    additional evidence. See Landowner’s Brief In Support of Land Use Appeal at 4, R.R. at 242a;
    Section 1005-A of the MPC, added by the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 11005-A
    (setting forth options for trial court concerning receiving additional evidence “[i]f, upon motion,
    it is shown that proper consideration of the land use appeal requires the presentation of additional
    evidence”); see generally Trial Court Docket, R.R. at 1a-2a.
    10
    18, Surman-1 Book of Exhibits, Tabs 2-4; N.T. at 106-10, R.R. at 109a-13a.
    Therefore, any argument that the Board erred or abused its discretion by failing to
    take into account Landowner’s expert evidence is meritless.
    More importantly, whether the addition was structurally sound and built
    to code is not one of the elements the Landowner must establish when seeking a
    variance.6 See Section 910.2(a) of the MPC, 53 P.S. § 10910.2(a). Therefore, such
    considerations are irrelevant, and Landowner’s argument is meritless.
    Accordingly, for the foregoing reasons, we affirm.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    6
    We note that the Township argues that Landowner’s permit application would be denied
    because the permit application has to list the proposed use for the addition and Landowner’s
    proposed new manufacturing use is unlawful. Township’s Brief at 21.
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    In Re: Application of                   :
    David Walter Surman, Jr.                :
    :
    :   No. 1381 C.D. 2018
    Appeal of: David Walter Surman, Jr.     :
    ORDER
    AND NOW, this 26th day of June, 2019, the order of the Court of
    Common Pleas of Bucks County dated September 12, 2018 is AFFIRMED.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge