Jefferson Borough v. ZHB of Jefferson Borough ( 2018 )


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  •                IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jefferson Borough,                          :
    Appellant        :
    :
    v.                     :
    :
    Zoning Hearing Board of                     :   No. 1697 C.D. 2017
    Jefferson Borough                           :   Submitted: May 4, 2018
    BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                     FILED: July 25, 2018
    Jefferson Borough (Borough) appeals from the York County Common
    Pleas Court’s (trial court) October 13, 2017 order affirming the Borough’s Zoning
    Hearing Board’s (ZHB) decision granting Seth E. Rohrbaugh’s (Applicant)
    dimensional variance application (Application) for a widened-access driveway to his
    property located at 49 York Street,1 York County, Pennsylvania (Property). The sole
    issue before this Court is whether the ZHB erred by concluding that Applicant met
    the criteria for obtaining a variance. Upon review, we reverse.
    Applicant’s home was originally constructed with a conforming
    driveway. In 2012, Applicant applied for a building permit to widen his driveway to
    30 feet which was denied. After denying the permit, the Code Enforcement Officer
    sent Applicant a letter informing him that the Borough’s Codification of Zoning
    1
    The parties refer to Applicant’s address as “49 York Road” throughout the hearing.
    However, the Court references his address as “49 York Street” to correspond to the tax parcel
    information located in the record. See Reproduced Record (R.R.) at 24.
    Ordinance (Zoning Ordinance) only allows a 20-foot-wide driveway and detailing his
    options to comply - widen his driveway beginning at a distance of 10 feet from the
    street or request a variance from the ZHB. Rather than seeking ZHB approval to
    widen his driveway or appeal from the denial of the permit, Applicant black-topped
    his driveway to a width of 38 feet. By July 21, 2016 letter, the Code Enforcement
    Officer notified Applicant that he was in violation of the Zoning Ordinance for
    constructing a 38-foot-wide driveway after he was denied a permit to widen it.
    On November 1, 2016, Applicant filed the Application. By November
    28, 2016 letter, the Borough Planning Commission provided comments on
    Applicant’s request to the ZHB and did not find that the standards for granting a
    variance were met.          The ZHB held a hearing on November 30, 2016.                          See
    Reproduced Record (R.R.) at 29-65. On December 28, 2016, the ZHB granted the
    Application, thereby allowing Applicant to keep his 38-foot-wide driveway, subject
    to certain conditions.2 The Borough appealed to the trial court. On October 13, 2017,
    the trial court, without taking evidence, affirmed the ZHB’s decision, finding
    unnecessary hardship consistent with the ZHB’s findings. See R.R. at 215-221. The
    Borough appealed to this Court.3
    2
    Because York Street is a state road, Applicant must obtain a Commonwealth of
    Pennsylvania, Department of Transportation (PennDOT) highway occupancy permit. See R.R. at
    46. The ZHB stated that Applicant would need to meet the following requirements to maintain his
    driveway: (1) obtain a PennDOT highway occupancy permit for the new access width, if required;
    (2) if an occupancy permit is not needed, then obtain approval from the Borough’s Engineer; and
    (3) obtain PennDOT approval for any improvements within its right-of-way. See R.R. at 71, 77.
    3
    Where “the trial court d[oes] not take any additional evidence, an appellate court is limited
    to determining whether the zoning board committed an abuse of discretion or an error of law in
    rendering its decision.” Marshall v. City of Phila., 
    97 A.3d 323
    , 331 (Pa. 2014). “We may
    conclude that the zoning board abused its discretion only if its findings are not supported by
    substantial evidence, which we have defined as ‘relevant evidence which a reasonable mind would
    accept as adequate to support the conclusion reached.’” 
    Id.
     (quoting Twp. of Exeter v. Zoning
    Hearing Bd. of Exeter Twp., 
    962 A.2d 653
    , 659 (Pa. 2009)).
    2
    The Borough argues that the ZHB erred by granting the variance.
    Specifically, the Borough contends that the ZHB erred by finding Applicant
    established: (1) an unnecessary hardship unique to the Property; (2) the hardship was
    not self-created; (3) the variance will not alter the essential character of the
    neighborhood, impair development or be detrimental to the public welfare; (4) the
    variance is the minimum necessary to afford relief; and (5) standards for a
    dimensional variance have been met.
    Initially, “[a] property owner seeking a variance must demonstrate both
    unnecessary hardship if the variance is denied and that the proposed variance is not
    contrary to the public interest.” Goldstein v. Zoning Hearing Bd. of Twp. of Lower
    Merion, 
    19 A.3d 565
    , 569 (Pa. Cmwlth. 2011); see also Section 910.2 of the
    Pennsylvania Municipalities Planning Code (MPC).4 Further, Section 198-41 of the
    Zoning Ordinance provides:
    Where there is unnecessary hardship, the [ZHB] may
    grant a variance in the application of the provisions of this
    chapter, provided that the following findings are made
    where relevant in a given case:
    (1) There are unique physical circumstances or
    conditions, including (a) irregularity, narrowness, or
    shallowness of lot size or shape, or (b) 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 this chapter in the
    neighborhood or zone in which the property is located.
    (2) Because of such physical circumstances or
    conditions, there is no possibility that the property can be
    developed in strict conformity with the provisions of this
    chapter and that the authorization of a variance is therefore
    necessary to enable the reasonable use of the property.
    4
    Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December
    21, 1988, P.L. 1329, 53 P.S. § 10910.2.
    3
    (3) The unnecessary hardship has not been created by
    the appellant.
    (4) The variance, if authorized, will not alter the
    essential character of the neighborhood or zone 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) 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.
    Zoning Ordinance § 198-41(C) (emphasis added); R.R. at 143. “It is the function of
    the [ZHB] to determine whether the evidence satisfies the criteria for granting a
    variance.” Marshall v. City of Phila., 
    97 A.3d 323
    , 331 (Pa. 2014); see also 53 P.S. §
    10910.2. The Pennsylvania Supreme Court declared in Hertzberg v. Zoning Board of
    Adjustment, 
    721 A.2d 43
     (Pa. 1998):
    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. 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. at 47. This Court explained:
    [I]n 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 into strict compliance with
    4
    the zoning requirements and the characteristics of the
    surrounding neighborhood.’ Id. at 50 (emphasis added).
    Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 
    118 A.3d 1
    , 8 (Pa. Cmwlth. 2015)
    (bold emphasis added).
    Despite the relaxed standard, “[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). Moreover, notwithstanding that an application is for a
    dimensional variance, “[t]he same criteria apply to use and dimensional variances,”
    meaning that “[a]n applicant must still present evidence as to each of the conditions
    listed in the zoning ordinance, including unnecessary hardship.” Tidd, 
    118 A.3d at 8
    .
    Finally, Section 198-41 of the Zoning Ordinance requires the ZHB to make findings
    of fact as to each of the criteria listed therein.
    1. Hardship Caused by Unique Physical Circumstances Peculiar to
    the Particular Property
    Pursuant to Section 198-41(1) of the Zoning Ordinance, Applicant had to
    establish and the ZHB had to make a finding that the Property’s unique physical
    circumstances created an unnecessary hardship. Although the quantum of proof
    necessary to establish unnecessary hardship for a dimensional variance is less than
    that needed to obtain a use variance, see Hertzberg, an applicant is nevertheless
    required to prove that a property’s unique physical characteristics limit its
    development in accordance with the ordinance. See Singer. Moreover, “an applicant
    must demonstrate something more than a mere desire to develop a property as it
    wishes or that it will be financially burdened if the variance is not granted.” Singer,
    
    29 A.3d at 150
    . In addition, our Supreme Court has ruled that the granting of a
    variance “cannot be done simply to accommodate the changing needs of a growing
    5
    family.” Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh, 
    672 A.2d 286
    ,
    290 (Pa. 1996).
    The law is well established that “[t]he hardship must be unique to the
    property at issue, not a hardship arising from the impact of the zoning regulations on
    the entire district.” In re Chestnut Hill Cmty. Ass’n, 
    155 A.3d 658
    , 666 (Pa. Cmwlth.
    2017) (quoting Marshall, 97 A.3d at 329). This Court has specifically ruled that
    unique conditions “must relate to the physical conditions of the land itself and not to
    man-made improvements, such as poured asphalt and concrete . . . .” In re Appeal of
    Taubenberger (Pa. Cmwlth. No. 2692 C.D. 2015, filed December 9, 2016), slip op. at
    13.5
    Based upon the evidence presented, the ZHB made the following
    undisputed findings:
    3. The [P]roperty is approximately .67 acres and is a
    slightly irregular rectangle approximately 120 feet wide
    (along York Street) and approximately 240 feet long (along
    Burns Road). The [P]roperty is improved with a single-
    family home, a pool, and a recently[-]added pole barn.
    4. The home was originally constructed with a conforming
    driveway which did not exceed 20 feet in width within 10
    feet of the [York S]treet right-of-way.
    5. After the [P]roperty was improved with a pole barn, the
    ‘driveway’ was widened by use over time to accommodate
    ingress and egress to the pole barn. The ‘driveway’, since it
    was also being used by 4 vehicles owned by Applicant and
    his family, was widened by the use of the vehicles. As
    such, the footprint of the ‘driveway created by these uses
    exceeded the original conforming driveway.’
    ....
    5
    This Court acknowledges that its unreported memorandum opinions may only be cited “for
    [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
    Court’s Internal Operating Procedures, 
    210 Pa. Code § 69.414
    (a). Taubenberger is herein quoted
    for its persuasive value.
    6
    10. [] Applicant testified that the size of the original
    driveway (prior to the new black top) could not
    accommodate the four cars/trucks owned by [] Applicant
    and his family. Because of the space limitation, [Applicant]
    testified that he could not turn vehicles around in the
    driveway which required him to ‘back out’ on to York
    [Street] which [] Applicant testified as being unsafe.
    11. [] Applicant also testified that there were water drainage
    issues along the York [Street] frontage of his [P]roperty
    which was exacerbated by [] Applicant’s use of the
    [P]roperty prior to the paving addition. [] Applicant
    testified that the stormwater flowing along [York Street]
    entered his [P]roperty and, along with the use of the
    vehicles over the existing grassy areas, turned []
    Applicant’s [P]roperty into a ‘mud pit’. According to []
    Applicant, the new paving has solved the water drainage
    issue.[6]
    ZHB Dec. at 1-2.
    Based upon that evidence, the ZHB concluded:
    [T]he subject [P]roperty is a slightly irregular rectangular
    lot, 120 feet by 240 feet - a standard residential lot. There
    was no testimony that irregularity, narrowness, or
    shallowness of the lot, exceptional topographical or
    physical conditions created any hardship. Rather, the
    size of the driveway (or the size of the front yard area to
    install a larger but conforming driveway) is too small to
    accommodate [] Applicant’s use (i.e., 4 vehicles and
    ingress/egress to/from the pole barn).
    As to alternative driveway sites, since the [P]roperty has
    two road frontages, [] Applicant testified that there are
    stormwater facilities along Burns Road which would make
    the location of an alternate driveway impractical.
    As such, the hardship results from the size of the
    original driveway and the number of cars that []
    Applicant has which otherwise makes it impossible to
    6
    Applicant’s neighbor Kevin Laughman testified that he faced similar issues of inadequate
    drainage and backing out onto York Street. See R.R. at 35, 53. He further reported that he liked
    Applicant’s improvement, that Applicant had done a nice job with it, and that some of the drainage
    issues had been resolved by it. See R.R. at 35.
    7
    maneuver the cars around the driveway and permit the cars
    to exit the [P]roperty onto York [Street] without backing
    out.     Consequently, the hardship also has a safety
    component. [] Applicant testified, which testimony was
    confirmed by Kevin Laughman [(Laughman)] of 45 York
    Street, . . . that traffic on York [Street] makes backing out of
    a driveway unsafe. [] Applicant testified, that prior to the
    installation of the new blacktop, he was essentially using his
    front yard as a driveway to allow his vehicles to maneuver.
    This caused mud, erosion, etc., and further exacerbation of
    drainage problems along York [Street].
    . . . [Considering Hertzberg], the [ZHB] notes that []
    Applicant had already expanded his ‘driveway’ by use over
    time. He did this of his own perceived necessity since he
    could not maneuver the number of cars in the footprint of
    the existing driveway in order to permit him not to ‘back
    out’ of the driveway. He also created a wider driveway
    frontage along York [Street]. The only thing that the new
    paving did was to pave over a foot print of an altered but
    existing driveway, configuration. As a result, the [ZHB] is
    being asked to rule on a variance request for a condition
    which has existed for a number of years. In some respects,
    the black topping made the existing condition ‘better’ in
    terms of drainage and appearance.
    ZHB Dec. at 4 (emphasis added).
    However, based on the record evidence, most of the parcels along York
    Street are similarly-sized and all of them have the same driveway width and setback
    requirements as Applicant. None of the neighboring properties have sufficient room
    for the owners to turn their vehicles in their dimensionally-compliant driveways.
    Further, the lots along York Street face the same drainage issues. The only features
    distinguishing the Property are Applicant’s four vehicles and pole barn, which
    Applicant added.       Under the circumstances, the Property’s purported hardship
    “‘aris[es] from the impact of the [Z]oning [Ordinance] on the entire [Borough],’” and
    is not “unique to the [P]roperty.”7 Chestnut Hill, 155 A.3d at 666 (quoting Marshall,
    7
    Even under the relaxed Hertzberg standard for a dimensional variance, Applicant failed to
    provide evidence of the neighborhood’s characteristics, and a recognized economic and/or financial
    8
    97 A.3d at 329). Thus, Applicant did not establish, nor did the ZHB find that the
    Property’s unique physical circumstances created an unnecessary hardship.
    2. No Possibility of Development in Strict Compliance with the
    Ordinance due to such Physical Conditions
    Section 198-41(2) of the Zoning Ordinance required Applicant to
    establish and the ZHB to make a finding that the Property’s unique physical
    circumstances made it impossible to develop it in strict conformity with the Zoning
    Ordinance.     The ZHB declared, based upon the evidence before it, that “the
    [P]roperty has been used for a residence with a twenty-foot driveway for many years
    and there is no reason that it cannot continue with a twenty-foot driveway.” ZHB
    Dec. at 5. Although the ZHB recognized that the Property’s use “has intensified over
    the years (e.g., the addition of a permitted pole barn) such that the conforming
    driveway no longer met [] Applicant’s needs,” ZHB Dec. at 5, the ZHB nevertheless
    concluded that “[s]ince the [P]roperty was developed in conformity with the . . .
    Zoning Ordinance and used as such for many years, [] Applicant has not
    demonstrated that there is no possibility that the [P]roperty cannot be developed in
    conformity with the [Zoning] Ordinance.” ZHB Dec. at 4. Therefore, Applicant did
    not prove, nor did the ZHB find that the Property’s unique physical circumstances
    made it impossible to develop it in strict conformity with the Zoning Ordinance.
    detriment. At the very least, after Applicant’s building permit was denied, he was aware that the
    Zoning Ordinance prohibited his driveway expansion. Notwithstanding, Applicant not only
    widened his driveway, but nearly doubled the size the Zoning Ordinance allowed. He sought a
    variance only after the project was completed. Therefore, any financial or economic detriment
    Applicant may suffer from having to remove the expanded blacktop is not the type this Court
    recognizes as an unnecessary hardship entitling him to a variance. See Goldstein.
    9
    3.     Unnecessary Hardship is not Self-Created
    In accordance with Section 198-41(3) of the Zoning Ordinance,
    Applicant was required to establish and the ZHB had to make a finding that the
    unnecessary hardship was not self-created. Here, the ZHB did not consider whether
    the hardship was self-created. Our Supreme Court has declared that “[t]he failure of
    a zoning board to consider each requirement of a zoning ordinance prior to
    granting a variance is an error of law.” Larsen, 672 A.2d at 289-90 (emphasis
    added). Applicant failed to establish that the hardship was not self-created and the
    ZHB failed to make a finding or consider whether Applicant’s hardship was self-
    created.
    4. A Variance will not Alter the Essential Character of the
    Neighborhood, nor Substantially Impair Adjacent Property
    Development, nor Harm the Public Welfare
    Section 198-41(4) of the Zoning Ordinance required Applicant to
    establish and the ZHB to make a finding that granting the variance will not alter the
    neighborhood’s essential character, substantially impair adjacent development or
    harm the public welfare. On this criterion, the ZHB stated:
    [] Laughman who is a neighbor of [] Applicant, stated that
    ‘he has no problem with the proposal’, that [] Applicant’s
    paving of the driveway has solved a water drainage problem
    along York [Street], and that [] Applicant did a ‘nice job’ on
    the driveway.
    Of particular concern . . . is what appears to be a common
    belief that backing out onto York [Street] is dangerous
    because of the speed limit . . . and the frequent violations of
    the posted speed limit. While the [ZHB] is concerned about
    the safety issue, it is also mindful that the width of
    driveways is regulated in part to prevent multiple
    ingress/egress points in and out of properties creating other
    safety issues. There was no evidence offered at the hearing,
    however, that the grant of the [v]ariance would adversely
    affect safety. And, we note that Section 198-29 [of the
    10
    Zoning Ordinance] permits the width of an access drive to
    be established by the Borough Engineer and the number of
    driveways/access drives to be increased under exceptional
    circumstances by [s]pecial [e]xception. Further, we note
    that Section 198-29 [of the Zoning Ordinance] contains
    standards for location, angle, sight distances and slope.
    Unfortunately, no engineering or other expert testimony
    was produced at the hearing regarding the safety issues
    implicated by backing out of driveways, multiple
    ingress/egress points, speed limits, etc.
    ZHB Dec. at 5. The record evidence supports the conclusion that granting the
    variance will alter the neighborhood’s essential character, substantially impair
    adjacent development or harm the public welfare. Thus, Applicant failed to establish,
    and the ZHB failed to find, that granting the variance will not alter the
    neighborhood’s essential character, substantially impair adjacent development or
    harm the public welfare.
    5. Variance is the Minimum Departure Necessary for Relief
    Pursuant to Section 198-41(5) of the Zoning Ordinance, Applicant was
    required to establish and the ZHB had to make a finding that the requested variance is
    the minimum necessary to afford Applicant relief.
    The Planning Commission’s report suggested two alternatives to afford
    Applicant relief without a variance: (1) a second access drive from Burns Road to the
    rear of the Property, or (2) permeable pavers placed adjacent to the driveway (i.e.,
    “honeycomb-shaped plastic paving grids [that] allow for grass to grow, while
    providing for a stable surface to minimize ruts in the area”). Planning Commission
    Report at 2.
    The ZHB declared:
    Because the 38[-]foot[-]wide driveway has already been
    installed, the [ZHB] concludes that the 38 feet represent the
    minimum variance that [] Applicant requires. There was no
    11
    evidence that [] Applicant could accomplish the same result
    with a narrower driveway, at least within 10 feet of the
    street right-of-way. However, the [ZHB] notes, at least
    with respect to area within [10] feet of the road right-of-
    way, that the front yard area does not need to be paved with
    blacktop in order to provide the relief that [] Applicant
    seeks, since [] Applicant simply seeks a wider area in order
    to turn vehicles around. As set forth in the Planning
    Commission’s letter, the installation of permeable pavers
    adjacent to the front driveway area and 10 feet off of the
    road right-of-way might not only offer a minimum variance,
    but no need for a variance at all. However, given the width
    of the [Commonwealth of Pennsylvania, Department of
    Transportation’s (PennDOT)] right-of-way (assumed 50
    feet) and given that [] Applicant has paved within the
    PennD[OT] right-of-way, the amount of area for the pavers
    would be minimal. Moreover, the pavers would serve the
    same function as the blacktop and could be considered a
    driveway if it provides access.
    ZHB Dec. at 5-6.
    While the ZHB acknowledged that the variance did not represent the
    minimum departure necessary from the Zoning Ordinance, it nevertheless relented in
    the variance because the driveway was already paved. However, since the record is
    clear that there were alternate and less violative ways for Applicant to resolve his
    space issues, there was not substantial evidence to support the ZHB’s conclusion.8
    Therefore, Applicant did not establish, nor did the ZHB find that the requested
    variance is the minimum necessary to afford Applicant relief.                          Under the
    circumstances, Applicant’s 38-foot-wide driveway was not the minimum variance
    necessary to afford him relief.
    8
    Applicant admitted that the Planning Commission recommended alternatives to paving, but
    he did not investigate them. See R.R. at 39. Applicant further stated: “[B]asically what I am asking
    for [is] to keep my driveway. It’s already done. That’s it.” R.R. at 32. “It’s not like a building
    where it’s going to be unsafe. It’s not going to hurt anybody.” R.R. at 41. “I didn’t think it was []
    too big of an issue.” R.R. at 55.
    12
    This Court acknowledges that “[a zoning board’s] interpretation of its
    own zoning ordinance is entitled to great deference and weight.” Hafner v. Zoning
    Hearing Bd. of Allen Twp., 
    974 A.2d 1204
    , 1210 (Pa. Cmwlth. 2009). We also
    recognize that “ordinances are to be construed expansively, affording the landowner
    the broadest possible use and enjoyment of his land.” Tink-Wig Mountain Lake
    Forest Prop. Owners Ass’n v. Lackawaxen Twp. Zoning Hearing Bd., 
    986 A.2d 935
    ,
    941 (Pa. Cmwlth. 2009).
    However, a zoning board is not a legislative body, and it
    lacks authority to modify or amend the terms of a zoning
    ordinance. ‘[Z]oning boards . . . must not impose their
    concept of what the zoning ordinance should be, but rather
    their function is only to enforce the zoning ordinance in
    accordance with the applicable law.’ Thus, the [ZHB] is
    required to apply the terms of the Zoning Ordinance as
    written rather than deviating from those terms based on an
    unexpressed policy.
    Greth Dev. Grp., Inc. v. Zoning Hearing Bd. of Lower Heidelberg Twp., 
    918 A.2d 181
    , 187 (Pa. Cmwlth. 2007) (citation omitted) (quoting Ludwig v. Zoning Hearing
    Bd. of Earl Twp., 
    658 A.2d 836
    , 838 (Pa. Cmwlth. 1995)).
    Here, notwithstanding that Applicant’s driveway expansion may offer
    him broader use and enjoyment of his land and that the ZHB found it acceptable,
    Applicant failed to satisfy his burden of meeting all the criteria necessary to obtain a
    variance. Moreover, the ZHB failed, as a matter of law, to make the requisite
    findings as to each requirement. See Zoning Ordinance § 198-41.
    Our Supreme Court succinctly explained:
    In the leading case of Application of Devereux
    Found[ation], Inc., . . . 
    41 A.2d 744
    , 746[-47 (Pa.
    1945)], Justice, now Chief Justice, Stern said, in
    discussing a variance: ‘It was said in Kerr’s Appeal,
    . . . 
    144 A. 81
    , 84 [(Pa. 1928)]: ‘The difficulties and
    hardships, which move the board of adjustment
    to depart from the strict letter of the ordinance,
    13
    should be substantial and of compelling force.’
    And in Valicenti’s Appeal, . . . 
    148 A. 308
    , 310[-]11
    [(Pa. 1929)], it was said: ‘It is true that variations
    may be permitted, but only in cases of practical
    necessity, and for reasons that are ‘substantial,
    serious and compelling.”. . . ‘The strict letter of
    the ordinance may be departed from only where
    there are practical difficulties or unnecessary
    hardships in the way of carrying it out; and in
    such manner that the spirit of the ordinance may be
    observed, the public health, safety and general
    welfare secured and substantial justice done. No
    other considerations should enter into the decision.’
    . . . Mere hardship is not sufficient; there must
    be unnecessary hardship . . . .
    ‘We do not believe that it was the intention of the
    legislature, nor of the township supervisors, to
    empower a board of adjustment to set at naught the
    zoning statute and ordinance under the guise of a
    variance. The power to authorize such a variance
    is to be sparingly exercised and only under
    peculiar and exceptional circumstances, for
    otherwise there would be little left of the zoning
    law to protect public rights; prospective
    purchasers of property would hesitate if
    confronted by a tribunal which could arbitrarily
    set aside the zoning provisions designed to
    establish standards of occupancy in the
    neighborhood. Indeed, if such power were to be
    interpreted as a grant to the [ZHB] of the right to
    amend or depart from the terms of the ordinance at
    its uncontrolled will and pleasure, it might well be
    challenged as being an unconstitutional delegation
    of legislative authority to a purely administrative
    tribunal.’
    Pincus v. Power, . . . 
    101 A.2d 914
    , 916 ([Pa.] 1954)
    (emphasis added) (quoting Devereux Found., 41 A.2d at
    747). Here, the [ZHB] failed to adhere to the Zoning
    [Ordinance’s] mandates.
    Moreover, ‘[w]here substantial evidence does not support
    the [ZHB’s] findings, the [ZHB] abused its discretion and
    reversal is warranted.’ Hafner, 
    974 A.2d at
    1209 n.1. Even
    14
    reviewing the evidence in [] Applicant’s favor, as we must,
    we hold that there was not substantial evidence to support
    the [ZHB’s] findings and conclusions that denial of the
    requested variance would result in unnecessary hardship. In
    the absence of such findings, the [ZHB’s] decision must be
    reversed.
    Chestnut Hill, 155 A.3d at 668.
    Because Applicant did not “present evidence as to each of the conditions
    listed in the zoning ordinance, including unnecessary hardship[,]” Tidd, 
    118 A.3d at 8
    , and the ZHB did not make findings of fact as to each of the criteria listed in
    Section 198-41 of the Zoning Ordinance, the ZHB erred as a matter of law by
    granting the Application.
    For the foregoing reasons, the trial court’s order is reversed.
    __________________________
    ANNE E. COVEY, Judge
    15
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jefferson Borough,                      :
    Appellant     :
    :
    v.                 :
    :
    Zoning Hearing Board of                 :     No. 1697 C.D. 2017
    Jefferson Borough                       :
    ORDER
    AND NOW, this 25th day of July, 2018, the York County Common Pleas
    Court’s October 13, 2017 order is reversed.
    __________________________
    ANNE E. COVEY, Judge