Hasbrouck Sand and Gravel, Inc. & HLC Land Mgmt., LLC v. Oil Creek Twp. ZHB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hasbrouck Sand and Gravel, Inc. and :
HLC Land Management, LLC, :
Appellants :
:
v. :
:
Oil Creek Township : No. 632 C.D. 2021
Zoning Hearing Board : Argued: February 7, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 11, 2022
Hasbrouck Sand and Gravel, Inc. and HLC Land Management, LLC
(jointly, Hasbroucks), two related family businesses, appeal from an order of the
Court of Common Pleas of Crawford County (trial court) affirming the denial of a
variance by the Oil Creek Township (Township) Zoning Hearing Board (Board).
The Hasbroucks seek to expand their existing sand and gravel mining activities into
a previously negotiated buffer zone that was determined through mediation,
memorialized in a signed agreement, and reflected in a subsequent amendment to
the Township’s zoning ordinance. Upon review, we affirm the trial court’s order
affirming the denial of the variance.
I. Background
Sometime in or around 2000, the Hasbroucks purchased a former
country club and golf course property (Property) in the Township. Memorandum
Op., May 14, 2021, Ex. C to Appellants’ Br. (Trial Ct. op.) at 1. At that time, the
Property was zoned as part of the Township’s Suburban Residential Restricted
District. Reproduced Record (R.R.) at 148a. The Hasbroucks sought a change in
the zoning of the Property to allow mining of sand and gravel, which neighbors of
the Property opposed. Id. at 148a. Pursuant to a then-recent amendment to the
Pennsylvania Municipalities Planning Code (MPC),1 Sections 609(f) and 908.1, 53
P.S. §§ 10609(f) & 10908.1,2 the Township formed a nine-member mediation
committee (Committee) to meet with a mediator and discuss a possible amicable
resolution. R.R. at 148a. The Committee included a member of the Township’s
Board of Supervisors, the Township’s Secretary and Zoning Officer, a member of
the Township’s Planning Commission, two nearby residents, and two members of
the Hasbrouck family, Herb and Bruce Hasbrouck, as well as attorneys for the
residents and the Hasbroucks. Id.
After a number of meetings and discussions, the Committee members
drafted, unanimously approved, and executed a Mediation Committee Report and
Agreement (Mediation Agreement), which they submitted to the Township for
approval. R.R. at 148a-57a. The Mediation Agreement proposed the formation of
two new zoning districts, Rural Economic Development (RED) and Rural Industrial
Office (RIO). Id. The Property would lie in both zoning districts, with a 200-foot-
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
2
Section 908.1 was added by the Act of December 21, 1988, P.L. 1329.
2
wide strip of land fronting on the south side of State Route 8 (Route 8) zoned RIO
and the remainder of the Property zoned RED. Id.
The parties to the Mediation Agreement consented to and proposed to
the Township a number of permitted uses in the RED district but proposed only
conditionally permitted uses in the RIO district. R.R. at 156a-57a. Of primary
significance here, the parties agreed and proposed that sand and gravel mining would
be a conditionally permitted use in the RED district, but would not be permitted in
the RIO district. Id. However, the Hasbroucks agreed not to engage in mining
activities in a 400-foot-wide strip along Route 8 (200 feet of RIO district adjacent to
Route 8 and 200 feet of buffer zone on the south side of the RIO district). Id. In
addition, the parties agreed to a “20-year limit” line, located well south of the buffer
zone and Route 8, and the Hasbroucks agreed not to mine any closer to Route 8 than
that line for a period of 20 years. Id. at 150a, 153a-54a & 159a. The record does
not reflect whether the Hasbroucks could have succeeded in obtaining either a
zoning change or a variance to mine the Property in the absence of the Mediation
Agreement.3
The Township approved the Mediation Agreement in concept and
enacted an amendment to its zoning ordinance, Ordinance No. 1 of 2002 (Ordinance
3
Neighbors of the Property opposed the proposal to change the Property’s use from a golf
course to a sand and gravel mining business with its attendant noise, dust, and added truck traffic.
Accord R.R. at 299a-300a (neighbor stating that an appraisal of her property showed a $70,000
reduction in its value since mining activity began on the Property); id. at 21a, 303a & 343a
(neighbors describing the constant extreme noise and dust generated by the mining activity and
stating that they have to keep their doors and windows closed and cannot use the portions of their
properties facing the Property); id. at 329a (Bruce Hasbrouck acknowledging that dust and noise
occur with sand and gravel mining). In addition to the buffer zone, pursuant to the 20-year limit
line provided in the Mediation Agreement, neighbors also obtained a 20-year hiatus before any
mining would occur on the northern portion of the Property nearest to Route 8, which amounted
to more than half of the Property. See id. at 150a, 153a-54a & 159a.
3
No. 1), which largely tracked the terms of the Mediation Agreement. R.R. at 33a-
39a. As enacted, however, Ordinance No. 1 provided for only conditionally
permitted uses in both the RED and RIO districts,4 rather than authorizing the
proposed permitted uses in the RED district. Id. Regarding the 200-foot-wide strip
of land immediately south of the RIO district, Ordinance No. 1 provided that mining
activities “shall not be . . . closer than 200 feet to the boundary of any zoning district
where such operations are not permitted . . . ,” e.g., the RIO district. Id. at 38a.
Thus, although structured differently, in part, from the proposal in the Mediation
Agreement, Ordinance No. 1 still allowed the mining activities desired by the
Hasbroucks and created the proposed 200-foot buffer zone between mining and
commercial activities and a 400-foot total buffer zone between mining activities and
Route 8. The Hasbroucks do not point to any specific adverse effect on their use of
the Property arising from the slight differences between the ordinance provisions
proposed in the Mediation Agreement and those actually enacted by the Township.
By 2019, mining activities on the Property were approaching the buffer
zone.5 R.R. at 291a. The Hasbroucks filed an application for a variance to allow
mining activity in the 200-foot buffer zone between the rest of the RED district and
the RIO district. Id. at 12a-15a. At a hearing before the Board, Bruce Hasbrouck,
the Vice President of Hasbrouck Sand and Gravel, Inc. and the General Partner of
HLC Land Management LLC, testified on behalf of the Hasbroucks. Id. at 288a.
He acknowledged that he was a member of the Committee and that he agreed to and
4
Neither party has questioned the legality of creating a zoning district with no permitted
uses. Therefore, we do not consider it here.
5
The record does not indicate whether the Hasbroucks have yet begun mining north of the
20-year limit line.
4
signed the Mediation Agreement on behalf of the Hasbroucks. Id. at 295a. He
explained that mining the buffer zone would allow the Hasbroucks to enhance the
return on their investment in the Property and that once mining activities take place
along the edge of the buffer zone, there is no way to go back and mine the buffer
zone later, because of the slope that will be created by mining that part of the
Property. Id. at 291a & 293a. Bruce Hasbrouck testified that the land in the buffer
zone is useless to the Hasbroucks if it cannot be mined. Id. at 328a.
Following the hearing, the Board issued a decision denying the
requested variance (2019 Board Decision). R.R. at 16a-18a. The Board concluded
the Hasbroucks failed to show any unique circumstances or conditions of the
Property, and their desire for additional profit from mining the buffer zone did not
constitute the unnecessary hardship required to justify a variance. Id. at 17a (citing
Appeal of Eureka Stone Quarry, Inc., 539 A.2d 1375 (Pa. Cmwlth. 1988)). The
Board stated that without a showing of unnecessary hardship, there was no need to
reach the issue of whether the Hasbroucks created the hardship themselves. R.R. at
17a. Nonetheless, the Board noted Bruce Hasbrouck’s participation in and execution
of the Mediation Agreement, implying that any hardship was self-created. See id.The Hasbroucks appealed to the trial court but subsequently requested
a remand to the Board for a further hearing to submit additional evidence, which the
trial court granted. R.R. at 19a. Following the second hearing, the Board again
issued a decision denying the variance (2020 Board Decision). Id. at 20a-22a. The
Board concluded the Hasbroucks failed to establish a unique character or condition
of the Property creating an unnecessary hardship, and further, they did not show that
they had not created the alleged unnecessary hardship. Id. at 22a. The Hasbroucks
5
again appealed to the trial court, which affirmed the Board’s decision. See generally
Trial Ct. op.
This appeal followed.
II. Issues
On appeal,6 the Hasbroucks raise several issues, which we reorganize
and paraphrase as follows. First, regarding the alleged unnecessary hardship they
will incur without a variance, the Hasbroucks assert that the Board erroneously
required them to prove it was impossible to develop the buffer zone within the RED
district in conformity with the Township’s zoning ordinance. They argue that they
proved the ordinance inflicted an unnecessary hardship because of the rezoning and
their inability to mine in the buffer zone, and because the development anticipated
in creating the RIO district has not occurred. Further, they insist their participation
in mediation and execution of the Mediation Agreement does not mean the hardship
was self-created. We address each issue in turn.7
6
Where the trial court has taken no additional evidence, this Court’s review is limited to
determining whether a zoning board’s findings are supported by substantial evidence or whether
the zoning board made an error of law in rendering its decision. Twp. of Exeter v. Zoning Hearing
Bd., 962 A.2d 653, 659 (Pa. 2009). Further, a zoning board’s findings are owed deference,
especially as to whether a variance applicant satisfied the unnecessary hardship criterion, in light
of the zoning board’s expertise and knowledge regarding local conditions. Marshall v. City of
Philadelphia, 97 A.3d 323, 333 (Pa. 2014); Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118
A.3d 1, 9 (Pa. Cmwlth. 2015).
7
The Hasbroucks also assert that the trial court erroneously based its affirmance on issues
not included in the 2020 Board Decision, including conclusions in the 2019 Board Decision that
were not repeated in the 2020 Board Decision. Appellants’ Br. at 48. However, because the trial
court took no additional evidence, this Court’s review relates solely to the sufficiency of the
Board’s decision. See supra note 6. For this reason, and because we conclude that the Board’s
findings and conclusions in the 2020 Board Decision are sufficient to support the Board’s denial
of the variance, we need not resolve the question of whether the trial court properly considered the
conclusions in the 2019 Board Decision as well as those in the 2020 Board Decision.
6
III. Discussion
A. Applicable Burden of Proof
“An application for a variance seeks permission to do something which
is prohibited by the zoning ordinance. In essence, a variance constitutes an
exception, or an overriding of legislative judgment concerning the will of the citizens
of the community regarding land use.” Metal Green Inc. v. City of Phila., 266 A.3d
495, 506 (Pa. 2021). 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
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) (additional quotation marks omitted)); see
also Section 910.2(a)(1-5) of the MPC,8 53 P.S. § 10910.2(a)(1)-(5); Larsen v.
Zoning Bd. of Adjustment, 654 A.2d 256, 261 (Pa. Cmwlth. 1995) (“Variances are
generally granted only under exceptional circumstances and an applicant must
satisfy all criteria necessary for the grant of a variance.”) (additional citation
omitted).
8
Added by the Act of Dec. 21, 1988, P.L. 1329.
7
As a threshold matter, the parties dispute the nature of the variance at
issue. The Board asserts that Ordinance No. 1 expressly precludes mining activities
as a use in the buffer zone, and therefore, the Hasbroucks are necessarily seeking a
use variance in order to conduct mining in the buffer zone. Appellee’s Br. at 7. The
Hasbroucks counter that the buffer zone adjacent to the RIO district is simply a
setback and that, accordingly, they are seeking a dimensional variance9 to allow them
to expand their conditionally permitted mining activities into the setback area.10
Appellants’ Reply Br. at 3-6.
In support of their position, the Hasbroucks rely on Hertzberg v. Zoning
Board of Adjustment, 721 A.2d 43, 47 (Pa. 1997) (explaining that “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”), and Tidd, 118 A.3d at 8 (stating that “[a] dimensional variance
involves a request to adjust zoning regulations to use the property in a manner
consistent with regulations, whereas a use variance involves a request to use property
9
We reject the Board’s argument that the Hasbroucks did not contend they were seeking a
dimensional variance until they filed their brief in the trial court. Although the Hasbroucks’
variance application did not expressly state which type of variance they were seeking, their
description of the variance indicated they were seeking to expand their existing use of the Property
into the buffer zone. R.R. at 14a-15a. Moreover, at the Board hearing on remand, the Hasbroucks’
counsel expressly stated to the Board that they were requesting a dimensional variance. See
Appellants’ Reply Br. at 1-2 (quoting remand hearing transcript, R.R. at 322a). We conclude the
Board was sufficiently on notice of the type of variance the Hasbroucks were seeking.
10
The Hasbroucks observe that a dimensional variance seeks only “a reasonable
adjustment of the zoning regulations in order to utilize the property in a manner consistent with
the applicable regulations.” Appellants’ Reply Br. at 3 (first quoting Hertzberg v. Zoning Bd. of
Adjustment, 721 A.2d 43, 35 (Pa. 1997) (additional quotation marks omitted); and then citing Tidd,
118 A.3d at 8). To the extent that the Hasbroucks imply that eliminating the entire buffer zone
adjacent to the RIO zone is “a reasonable adjustment,” we find no support for such a position in
either the record or the parties’ briefs.
8
in a manner that is wholly outside zoning regulations”). Appellants’ Reply Br. at 3-
6. Tidd involved a zoning ordinance provision requiring buildings used to shelter
horses and areas used to corral or pasture horses to be 100 feet back from lot lines.
Id. at 3. The property owner sought a dimensional variance in order to encroach into
the setback area with pasture, which was a permitted use. Id. Here, we agree with
the Hasbroucks that, by analogy, their proposed expansion of their conditionally
permitted mining operations into the buffer zone, which is essentially a setback,
likewise constitutes a request for a dimensional variance, not a use variance.
In Hertzberg, our Supreme Court established a more relaxed standard
for demonstrating unnecessary hardship for a dimensional variance; in determining
whether there is unnecessary hardship sufficient to support a dimensional variance,
relevant factors include economic detriment to the applicant from a denial of the
variance, the financial hardship that would arise from any work needed to bring the
property into compliance with zoning requirements, and the characteristics of the
surrounding neighborhood. Tidd, 118 A.3d at 8 (citing Hertzberg, 721 A.2d at 50).
Thus, in seeking a dimensional variance, unreasonable economic hardship to the
applicant may be considered, and the applicant is not required to prove the property
is valueless or unusable for any purpose without the variance. Tidd, 118 A.3d at 8.
Nonetheless, the same criteria set forth above for granting a variance
still apply to both use and dimensional variances. Tidd, 118 A.3d at 8. Although
Hertzberg eased the requirements for showing unnecessary hardship to support a
dimensional variance, it did not remove them. Id. An applicant must still meet each
of the criteria for a variance, including unnecessary hardship. Id. “Where no
hardship is shown, or where the asserted hardship amounts to a landowner’s desire
to increase profitability or maximize development potential, the unnecessary
9
hardship criterion required to obtain a variance is not satisfied even under the relaxed
standard set forth in Hertzberg.” Id. With this legal framework in mind, we examine
the Hasbroucks’ legal arguments in light of the burden of proof applicable to an
application for a dimensional variance.
B. Unnecessary Hardship
The Hasbroucks first assert that the Board erroneously required them
to prove the Property had unique physical characteristics that would make
development in conformity with the zoning ordinance impossible. Appellants’ Br.
at 32. According to the Hasbroucks, the Board then erred further by concluding the
Hasbroucks had failed to meet that burden of proof; they insist they met their burden.
Id. We discern no merit in this argument.
In its decision following the hearing on remand, the Board correctly
stated that
the [Hasbroucks] must demonstrate that the [P]roperty has
unique physical characteristics or conditions peculiar to
the [P]roperty that cause an unnecessary hardship, that
there is no possibility the [P]roperty can be developed in
strict conformity with the ordinance due to such unique
circumstances or conditions and that a variance is
necessary to enable reasonable use of the [P]roperty . . . .
R.R. at 22a (emphasis added). This language closely tracked the first two criteria
for a variance as set forth in Tidd, and we find no error of law in the Board’s
statement of these two criteria. See Tidd, 118 A.3d at 8 (stating that a variance
applicant must establish that “an unnecessary hardship will result if the variance is
denied, due to the unique physical circumstances or conditions of the property . . .
and a variance is necessary to enable the reasonable use of the property”).
10
Even under the somewhat relaxed standards for demonstrating
unnecessary hardship in seeking a dimensional variance, the Hasbroucks still had to
show that any such hardship arose from unique physical characteristics or conditions
of the Property. See Soc’y Created to Reduce Urban Blight v. Zoning Bd. of
Adjustment, 787 A.2d 1123, 1127 (Pa. Cmwlth. 2001) (observing that “even under
the more relaxed Hertzberg standards, which allow courts to consider multiple
factors in determining if a dimensional variance is justified, the zoning board
nonetheless must find some unnecessary hardship arising from the unique physical
circumstances or conditions of the lot before the zoning board may grant a variance”)
(emphasis added) (internal citation omitted). In their principal brief, the Hasbroucks
do not assert that the Property has unique physical characteristics as such. See
generally Appellants’ Br. Rather, they argue that the ordinance is unique, thereby
giving rise to a condition of the Property causing an unnecessary hardship in the
absence of a variance. Id. at 13 (referring to “unnecessary hardship arising from the
unique dual zoning”), 34 (asserting that “the [Board] committed an error of law by
requiring [the] Hasbrouck[s] to prove that there were such physical conditions of the
[P]roperty that it was impossible to develop the setback” in compliance with the
ordinance), & 37 (contending that “the [Board] erred by improperly requiring [the]
Hasbrouck[s] to prove that the [P]roperty had characteristics which made it
impossible to use the [P]roperty in compliance with the ordinance”).
However, the Board concluded that the Hasbroucks “did not establish
that there are unique physical characteristics or conditions of the [P]roperty that
would prevent any possibility that the [P]roperty can be developed in conformity
with the ordinance or that a variance is necessary to enable the reasonable use of
the [P]roperty.” R.R. at 22a (emphasis added). Thus, the Board’s decision facially
11
applied the variance criteria as set forth in Tidd, 118 A.3d at 8. The Board concluded
the Hasbroucks failed to sustain both their burden to demonstrate a unique physical
characteristic imposing unnecessary hardship and their burden to prove that a
variance was necessary for the reasonable use of the Property. See R.R. at 22a.
Assuming, arguendo, that the Board erroneously required the
Hasbroucks to prove a unique physical condition of the Property that made its use in
conformity with the ordinance impossible, any such purported error still would not
require reversal, because the Board was within its discretion in finding the evidence
inadequate to demonstrate that a variance would be required for reasonable use of
the Property. The Board, as factfinder, was the sole judge of the credibility and
weight of the evidence. “[A] zoning board determines the credibility of witnesses
and weighs their testimony, resolves conflicts in testimony, and, in doing so, may
accept or reject the testimony of any witness in part or in toto. In making these
determinations, a zoning board is free to reject even uncontradicted testimony . . . .”
Metal Green, 266 A.3d at 506-07. At the second Board hearing on remand, the
Hasbroucks offered some conclusory testimony concerning the unique character of
the ordinance creating a unique condition of the Property. See R.R. at 323a (the
Property is the only land in the Township that lies in either the RED or RIO district).
However, the Board concluded the Hasbroucks’ evidence failed to meet their burden
of proof on the need for a variance to enable the reasonable use of the Property. See
R.R. at 22a. This Court will not reweigh the evidence.11 See Broussard v. Zoning
11
In Metal Green Inc. v. City of Phila., 266 A.3d 495 (Pa. 2021), our Supreme Court
concluded that a zoning hearing board’s decision was inadequate where, inter alia, the board,
although stating the applicant did not establish the criteria for a variance, failed to explain whether
the variance applicant’s evidence was insufficient to meet its burden of production or its burden
of persuasion. Id. at 502. Here, the Hasbroucks have not raised this issue. However, we note that
their hearing testimony consisted solely of Bruce Hasbrouck’s brief self-serving testimony and the
12
Bd. of Adjustment, 831 A.2d 764, 772 (Pa. Cmwlth. 2003), aff’d, 907 A.2d 494 (Pa.
2006).
In any event, as explained in the next section, the Hasbroucks also
failed to demonstrate that they did not cause their own hardship. Therefore, even
assuming the Board erred in concluding that the Hasbroucks failed to demonstrate
an unnecessary hardship, any such error was harmless.
C. Self-Created Hardship
As set forth above, in order to support a variance, the applicant must
also establish that any hardship requiring a variance was not self-created. Tidd, 118
A.3d at 8. Here, the Board concluded that the Hasbroucks failed to meet that
criterion for a variance because they participated in the Committee’s mediation and
approved and signed the Mediation Agreement on which the Township based
Ordinance No. 1. R.R. at 22a. The Hasbroucks insist the hardship purportedly
arising from their inability to mine in the buffer zone was not self-created because
the Township, not the Mediation Agreement, enacted Ordinance No. 1, and because
the hardship resulted from the rezoning and the subsequent absence of the hoped-for
development of the RIO district. These arguments lack merit.
Regarding the Mediation Agreement, the Hasbroucks observe that
where one purchases property knowing that its zoning precludes the purchaser’s
intended use, and then seeks a variance from the zoning to allow that use, that
circumstance does not constitute self-created harm. Appellants’ Br. at 44-46 (citing
Township Zoning Officer’s verification that the RED and RIO districts do not apply anywhere in
the Township except to the Property. See R.R. at 288a-95a & 323a-36a. The Board was within
its discretion in determining that the Hasbroucks’ evidence was insufficient to demonstrate that a
variance was necessary for the reasonable use of the Property.
13
Wilson v. Plumstead Twp. Zoning Hearing Bd., 936 A.2d 1061, 1070 (Pa. 2007))
(additional citations omitted). The Hasbroucks suggest the circumstances of this
case are the same as those where a buyer purchases property with knowledge of its
zoning and then seeks a variance. We disagree.
Contrary to the Hasbroucks’ contention, the critical difference here is
the Mediation Agreement. The Hasbroucks bought the Property with knowledge
that its zoning did not permit their desired mining activity, and then they sought a
variance, but importantly, their conduct did not stop there. They agreed to mediate
the issue of a zoning change as members of the Committee, and by negotiating and
executing the Mediation Agreement, they avoided the risk of an unsuccessful request
for a zoning change that could have impacted their investment in the Property.
Through the Mediation Agreement, the Hasbroucks gained the ability to mine the
vast majority of the Property. See R.R. at 291a (stating that the area the Hasbroucks
are already mining is “much wider than 200 feet”). In return, they agreed to a 400
foot wide buffer zone along Route 8, and even as to that buffer zone, they gained the
ability to conduct non-mining activities, including commercial development of the
RIO district.
The Hasbroucks implicitly recognize the contractual nature of the
Mediation Agreement, but they contend that to the extent it constitutes a contract, it
is unenforceable for lack of consideration. Appellants’ Br. at 46. We disagree.
Notwithstanding the necessity for approval by the Township, the Mediation
Agreement is in the nature of a settlement agreement relating to a conflict among the
Hasbroucks, the Township, and neighboring property owners. See R.R. at 148a
(reciting that the Township “decided to organize a mediation team in order to work
towards the resolution of a land use conflict” pursuant to Section 908.1 of the
14
MPC, 53 P.S. § 10908.1, which authorizes mediation for resolution of such
conflicts). The compromise of a disputed claim constitutes sufficient consideration
to make a settlement agreement enforceable. See SKF USA, Inc. v. Workers’ Comp.
Appeal Bd. (Smalls), 714 A.2d 496, 500 (Pa. Cmwlth. 1998) (first citing Cohen v.
Sabin, 307 A.2d 845 (Pa. 1973); and then Lombardo v. Gasparini Excavating Co.,
123 A.2d 663 (Pa. 1956)); see also Rivers v. Del. Valley Mut. Cas. Co., 175 A.2d
87, 89 (Pa. Super. 1961) (explaining that “[t]he compromise of disputed claims,
whether in fact valid or not, furnishes sufficient consideration for an agreement of
compromise . . . , the very object of a compromise being to avoid the trouble and
risk of that question”) (internal citations omitted).
In short, the Hasbroucks entered into a valid and enforceable written
agreement in which they promised not to mine in the buffer zone, in return for the
ability to mine in the rest of the RED district and engage in commercial development
of the RIO district. Although the effectiveness of the Mediation Agreement
depended on the Township’s approval of that agreement and enactment of the
implementing ordinance, the Township did approve the Mediation Agreement and
did enact the implementing ordinance in reliance on the Mediation Agreement’s
terms. See R.R. at 148a. Now, after reaping the benefit of their bargain for nearly
two decades, the Hasbroucks are approaching the buffer zone in the course of their
mining activities and, tantalized by its potential for added profitability, they are no
longer satisfied with the bargain they made. Like the trial court, we can envision no
clearer example of a self-created hardship. See Trial Ct. op. at 8.
The Hasbroucks also argue that their purported hardship is not self-
created because although they signed the Mediation Agreement, they did not agree
therein that they would never seek a variance. Appellants’ Br. at 47-48. The
15
Hasbroucks expressly agreed they would not mine in the buffer zone. Seeking a
variance to do just that is a flagrant attempt to contravene the Mediation Agreement.
Their contrary argument essentially amounts to an assertion that although they made
an agreement, they did not agree never to try to evade their obligations under that
agreement. That argument is specious at best.
In a related argument, the Hasbroucks assert that although they
consented to and signed the Mediation Agreement, that agreement was not binding
on them because the Township altered some of the proposed ordinance language
suggested in the Mediation Agreement when the Township enacted Ordinance No.
1 with only conditionally permitted uses in the RED district rather than permitted
uses as proposed in the Mediation Agreement. Appellants’ Br. at 47. However, the
Hasbroucks’ overriding goal in entering the Mediation Agreement was gaining
conditional approval to mine in the RED district. Notably, mining in the RED
district was a conditionally permitted use, both as recommended in the Mediation
Agreement and as enacted in Ordinance No. 1, and the Hasbroucks achieved their
goal when the Township approved that use under the conditions proposed and
consented to by the parties, including the Hasbroucks, in the Mediation Agreement.
Therefore, we conclude the distinction between the proposed ordinance provisions
in the Mediation Agreement and the provisions of Ordinance No. 1 is one without a
difference for purposes of the enforceability of the Mediation Agreement.12 The
12
Where an alleged failure of performance is immaterial and an agreement has been
substantially performed, it provisions remain in effect. Cimina v. Bronich, 537 A.2d 1355, 1358
(Pa. 1988) (quoting Sgarlat v. Griffith, 36 A.2d 330, 332 (Pa. 1944) (“only material failure of
performance by one party discharges the other party . . . an immaterial failure does not operate as
such a discharge”)) (internal quotation marks and additional citations omitted). Our Supreme
Court long ago observed, in describing a de minimis breach, that it “would not put on spectacles,
to look at breaches in matters unsubstantial and of no great amount one way or the other.”
16
Township formed the Committee expressly for the purpose of mediating an
agreement on which the Township could rely in resolving the Hasbroucks’ request
for a zoning change to allow mining on the Property. See R.R. at 148a. The
Mediation Agreement recommended a resolution, including the creation of the RED
district, the RIO district, and the buffer zone, which the Township implemented with
only minor changes that were inconsequential to the Hasbroucks’ mining activities
on the Property. Id. at 33a-39a & 148a-57a. The Hasbroucks will not now be heard
to disclaim any role in formulating the provisions of Ordinance No. 1.
The Hasbroucks further contend that the Mediation Agreement was
premised on the anticipated development of the RIO district and that the passage of
time since 2002, with no such development, has removed the reason for the buffer
zone and made both the RIO district and the portion of the buffer zone in the RED
district useless. See Appellants’ Br. at 23-24 & 39-41. The Hasbroucks similarly
assert that because of the absence of development of the RIO zoned portion of the
Property, the buffer zone is no longer needed. Id. at 39-41. However, there was no
evidence concerning any expected timetable in which the hoped-for development
would occur and, thus, no evidence that the intervening years since 2002 constituted
a sufficient time to gauge whether the area will ever be commercially developed.
The Hasbroucks simply aver, without evidentiary support, that as no development
occurred during the years between the creation of the RIO district in 2002 and their
Obermyer v. Nichols, 6 Binn. 159, 173 (Pa. 1813). We note that the Hasbroucks acquiesced in any
inconsistency between the Mediation Agreement’s recommendation and the actual language of
Ordinance No. 1 by proceeding with their mining activities in the RED district for nearly 20 years
without asserting that the ordinance language did not match their expectation in entering into the
Mediation Agreement. That acquiescence further illustrates the de minimis nature of the difference
between the Mediation Agreement’s recommended zoning ordinance amendment and the
Township’s amended ordinance as enacted.
17
variance application in 2019, development is not going to occur, because the
“community [is] getting smaller, not larger.” R.R. at 290a. In light of the paucity
of record evidence on this issue, we cannot conclude that the Board erred by failing
to credit the Hasbroucks’ assertions.
In addition, the record indicates that the portions of the Property
constituting the RIO district and the rest of the buffer zone have been and are
presently used by the Hasbroucks to grow corn. R.R. at 338a. Although there was
some testimony that the commercial availability of the RIO district was known to
some local residents and was “at one time” known to a few realtors, id. at 296a &
298a, there was no evidence that it was obvious or was known to anyone else,
including any potential developers or commercial business owners.13
For all the reasons discussed above, we conclude that the Board did not
err in determining that the Hasbroucks failed to meet their burdens of demonstrating
that they are subject to an unnecessary hardship and that they themselves did not
13
In that regard, it is noteworthy that the Hasbroucks continue to own all of the Property,
including the portion located in the RIO district. R.R. at 293a-94a, 323a & 327a. In support of
the Hasbroucks’ contention that commercial development of the RIO district is not feasible, Bruce
Hasbrouck testified that no one has approached him about purchasing land in the RIO district for
development, and that the community is getting smaller. Id. at 290a. On the other hand, there was
no evidence of any marketing efforts or other attempts to encourage such development. See id. at
295a-96a (stating that the Hasbroucks did not do any advertising of the RIO district). We agree
with the Hasbroucks’ observation that a property owner is not required to place his property on the
market for sale in order to demonstrate that it is not marketable as zoned. See Appellants’ Br. at
33-34 (quoting Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 642 (Pa.
1983)). Nonetheless, the inability to sell a property is probative of its marketability. Valley View,
462 A.2d at 642. Further, we are skeptical that passively retaining ownership of a commercial
property and using it as a cornfield, R.R. at 338a, without more, automatically entitles the owner
to conclude that commercial development is hopeless because the business world did not,
unsolicited, beat a path to his door. However, in light of our disposition of the appeal on other
grounds, we do not find it necessary to reach this issue.
18
create that alleged hardship. Accordingly, the Board did not err in denying the
requested variance.
IV. Conclusion
Based on the foregoing analysis, the decision of the Board is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hasbrouck Sand and Gravel, Inc. and :
HLC Land Management, LLC, :
Appellants :
:
v. :
:
Oil Creek Township : No. 632 C.D. 2021
Zoning Hearing Board :
ORDER
AND NOW, this 11th day of April, 2022, the order of the Court of
Common Pleas of Crawford County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge