Kneebone, R. v. Lutz, P., Aplts.

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
RUTH L. KNEEBONE : No. 52 MAP 2021
:
: Appeal from the Order of the
v. : Commonwealth Court at No. 807
: C.D. 2019 dated July 9, 2020,
: Reconsideration Denied August 26,
ZONING HEARING BOARD OF THE : 2020, Reversing the Order of the
TOWNSHIP OF PLAINFIELD AND : Northampton County Court of
PATRICK LUTZ AND PAMELA LUTZ : Common Pleas, Civil Division, at No.
: C-48-CV-2018-11586 dated June 7,
APPEAL OF: PATRICK LUTZ AND : 2019.
PAMELA LUTZ :
: ARGUED: December 7, 2021
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE MUNDY DECIDED: April 28, 2022
We allowed appeal to consider whether the Commonwealth Court correctly applied
its standard of appellate review relative to the grant of a dimensional zoning variance.
Appellants, Patrick and Pamela Lutz (“Homeowners”), own a single-family,
detached home on a half-acre lot along Kesslersville Road in Plainfield Township,
Northampton County. The property is located in a farm and forest district under the
township’s zoning code. Single-family dwellings are permitted in that district but, per the
zoning code, they are subject to setback requirements – namely, 50 feet for the front and
back yards, and 20 feet for the side yards.
Homeowners decided to add onto the back of their home. The design called for
an addition to extend to the building envelope in the back – that is, to 50 feet shy of the
rear property line – with a raised, covered deck extending 18 feet into the rear setback
area. When Homeowners submitted their plan to the township for approval, the zoning
officer sent them written notice that the deck would not be allowed because it intruded
into 50-foot setback area. He observed Homeowners could seek relief from the zoning
hearing board (the “Board”) in the form of a dimensional variance. The officer noted
dimensional variances must meet the requirements of the zoning code. See Plainfield
Twp. Zoning Code § 27-804.5.C. Those requirements are substantively identical to the
ones contained in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (the
“MPC”),1 which lists five prerequisites for a variance:
(a) The board shall hear requests for variances where it is alleged that the
provisions of the zoning ordinance inflict unnecessary hardship upon the
applicant. . . . 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.
(3) That such unnecessary hardship has not been created by
the appellant.
1 Act of July 31, 1968, P.L. 805, No. 247 (as amended 53 P.S. §§ 10101-11202). The
MPC is enabling legislation authorizing municipalities to enact and enforce zoning
regulations. See Wilson v. Plumstead Twp. Zoning Hearing Bd., 936 A.2d 1061, 1064
(Pa. 2007); see also 53 P.S. § 10105 (relating to the MPC’s purposes).
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(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.
53 P.S. § 10910.2(a).
Homeowners submitted a dimensional-variance application to the Board,
indicating their house was built in the 1960s on a non-conforming lot which was not part
of any development, and it is adjacent to a large tract of open farmland to the rear with
no structures nearby. The Board held hearings in September and October 2018.
At the September hearing, Homeowners appeared, represented by Attorney Gary
Asteak. Attorney Asteak recited that the requested variance was for a covered deck
attached to the back of the house and encroaching 18 feet into the 50-foot rear yard, thus
leaving a 32-foot setback from the rear property line. He presented the testimony of Adam
Pooler, the general contractor for the work on the addition and the deck. Mr. Pooler
testified that: the half-acre lot was not created by Homeowners, but was a pre-existing
lot that would not have been permitted under the current zoning regulations; the land
behind the subject property is a farm consisting of 130 acres; given the size of the property
and the design of the addition and proposed deck, he cannot construct the deck and still
meet the ordinance’s setback requirements; and the submitted design represents the
minimum size for the deck to be functional as a covered deck, meaning that Homeowners
were seeking the minimum variance that would afford the relief they wanted. He also
pointed out that Homeowners used to have an above-ground pool and deck within the
rear-yard setback area, that these items had been removed, and that the proposed new,
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covered deck would not extend as far back as did the pool and the old deck. See N.T.,
Sept. 11, 2018, at 5-11. When asked if construction of the deck would alter the essential
character of the neighborhood, Mr. Pooler opined it would improve the neighborhood
because the subject property would have enhanced curb appeal, and this would be
unlikely to harm the next-door neighbors. See id. at 10.
At the October hearing, Attorney Asteak presented a topographical survey with a
site plan showing the exact lot dimensions, confirming that the addition to the house is
wholly within the building envelope, and reflecting that the proposed deck would intrude
about 18 feet into the setback area.2 These documents also showed that Appellee Ruth
Kneebone (“Objector”), Homeowners’ next-door neighbor, has a shed located on her
property about 19 feet from the rear yard line. See N.T. Oct. 4, 2018, at 3-6. The only
persons opposed to the variance were Objector and her son Jeffrey. Due to a medical
condition, Objector was unable to speak, so Jeffrey spoke on her behalf.
At the September hearing, Jeffrey read into the record a letter written by his mother
expressing that: she has lived at her current residence since 1965; she strongly agrees
with the 50-foot setback requirement for properties in the farm and forest district;
constructing improvements within that area appears intrusive to neighboring property
owners; houses in the 1960s were small, whereas now larger homes are being placed on
relatively small lots; many residents oppose this practice and prefer open space; and
granting the requested variance would change the character of her home and rear yard
and set a bad precedent. See N.T., Sept. 11, 2018, at 26-28. At the October hearing,
Jeffrey testified on his own behalf and repeated many of these sentiments. See N.T.,
Oct. 4, 2018, at 11-15. On cross-examination, Jeffrey acknowledged that his mother
2 In his prefatory remarks to the Board, Attorney Asteak portrayed the addition of living
space and a covered deck as “bringing the house into the 21st Century on an existing
lot.” Id. at 4.
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owns a shed behind her house which intrudes approximately 31 feet into the rear setback
area of her lot, and that a dimensional variance had to be obtained for its construction
many years ago. See id. at 17, 29-31. However, he described the shed as smaller and
less prominent than the construction proposed by Homeowners. See id. at 29, 31.
The Board approved the variance by unanimous vote. In its written decision, the
Board made a number of factual findings based on the testimony and documents
submitted. It observed, initially, that the land immediately behind the subject property is
a 130-acre farm, there are no adjacent buildings or dwellings located in that area, and
Objector herself has a shed located about 19 feet from the rear of her lot. The Board
continued that: in view of the undersized dimensions of the lot in question, compliance
with the dimensional requirements for setbacks creates a hardship; although Objector
opposed the additions, most of the improvements to which she and her son articulated
specific objections are located within the permitted building envelope, and only the deck
encroaches into the setback;3 the structures at issue will be in the center of the property
and will meet the zoning ordinance’s side-yard setback requirements; the unique physical
characteristics – i.e., having open farmland directly behind the property, coupled with the
fact that it is a small lot in a farm and forest district – are sufficient to justify relief; and the
18-foot encroachment into the rear-yard setback will not detrimentally impact the
surrounding properties or the character of the neighborhood, particularly because, as
noted, the property immediately behind the subject property is a large tract of open
3 The Board couched its findings in terms of a deck and a patio intruding into the setback,
and the parties’ present advocacy is framed in similar terms. The site plan shows the
patio as sitting beside the deck and not encroaching any further than the deck into the
rear setback area. Objector only took issue with the raised, covered deck, and not the
patio, which would be at ground level. See N.T., Oct. 4, 2018, at 6. At the hearing, the
patio seemed most relevant to an ancillary discussion about the subject property’s
impervious surface, which is not at issue in this appeal. See id. at 9-10.
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farmland. See In re Request for Dimensional Variance, No. 2018-06, Opinion at 8-9
(Plainfield Twp. Zoning Hearing Bd. Nov. 5, 2018) (Findings of Fact Nos. 51-60).
Objector sought review in the common pleas court, which affirmed based on the
record made before the Board. The court noted, initially, that where (as here) it does not
take additional evidence, the Board is the sole judge of witness credibility and evidentiary
weight, and its decision is reviewed for an abuse of discretion. See Kneebone v. Plainfield
Twp. Zoning Hearing Bd., No. C-48-CV-2018-11586, slip op. at 5 (C.P. Northampton June
7, 2019). The court elaborated that the Board acts within its discretion so long as its
findings are supported by “substantial evidence,” meaning, “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Valley
View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983)).
The court explained, further, that where a dimensional variance is sought the
landowner is asking for an adjustment of zoning restrictions so as to use the property in
a manner consistent with applicable regulations, and hence, the variance is of lesser
moment than when an applicant seeks a use variance – that is, permission to use the
property in a manner falling outside such regulations. Thus, the court continued, an
assessment of unreasonable hardship is based on a lesser quantum of proof than in the
use-variance context and may subsume factors such as: the economic detriment to the
applicant if the variance is denied, the financial hardship created by any work necessary
to bring the property into strict compliance with zoning requirements, and the
characteristics of the surrounding neighborhood. See id. at 9-10 (citing and quoting
Hertzberg v. Zoning Bd. of Adjustment of Pittsburgh, 721 A.2d 43, 47-48, 50 (Pa. 1998)).
The court then reviewed the hearing testimony in some detail and held that the Board’s
findings and determinations, including its ultimate decision to grant the variance, were
supported by substantial evidence.
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The Commonwealth Court reversed. Like the common pleas court, it recited the
standard of judicial review applicable to local zoning board decisions, as well as the
premise that a more relaxed administrative assessment applies in the first instance to
requests for a dimensional variance than for a use variance. See Kneebone v. Plainfield
Twp. Zoning Hearing Bd., No. 807 C.D. 2019, 2020 WL 3866643, at *2-3 & n.2 (Pa.
Cmwlth. July 9, 2020) (citing Hertzberg, 721 A.2d at 50). It disagreed with the county
court, however, on the question of whether substantial evidence supported the Board’s
conclusion that complying with the dimensional setback requirements imposed a hardship
upon Homeowners.
In this respect, the court expressed, initially, that Mr. Pooler’s testimony comprised
the only evidence of hardship. It acknowledged such testimony supported the concept
that the small size of Homeowners’ lot, together with the zoning setback requirements,
limited Homeowners’ use of their property. But it did not consider the testimony adequate
to demonstrate the type of hardship needed to justify a dimensional variance because, in
the court’s view, these constraints only interfered with Homeowners’ preferences. See
id. at *5; see also id. at *3 (expressing that “a conflict between dimensional zoning
requirements and a landowner’s personal preference regarding property use alone does
not create a hardship meriting a variance” (citing Yeager v. Zoning Hearing Bd. of
Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001))). The court indicated that any hardship
arising from difficulties of that nature relate to the person and not the property. See id. at
*2 (“A variance, whether labeled dimensional or use, is appropriate only where the
property, not the person, is subject to hardship.” (indirectly citing Szmigiel v. Kranker,
298 A.2d 629, 631 (Pa. Cmwlth. 1972))).
We allowed further appeal to address the following issue as framed by
Homeowners:
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Did the Commonwealth Court panel abuse its discretion by using an
incorrect standard of appellate review and substitute its judgment for that of
the trial court and zoning hearing board in reversing the zoning hearing
board’s grant of a dimensional variance?
Kneebone v. Plainfield Twp. Zoning Hearing Bd., 256 A.3d 1089, 1090 (Pa. 2021) (per
curiam) (brackets removed, some capitalization altered).
Initially, we find Homeowners’ statement of the issue to be imprecise. Although a
local zoning board acts within its discretion when finding unnecessary hardship and in
deciding whether to grant a variance, see Marshall v. City of Phila., 97 A.3d 323, 333 (Pa.
2014); Upper Leacock Twp. Supervisors v. Upper Leacock Twp. Zoning Hearing Bd., 393
A.2d 5, 7-8 (Pa. 1978), appellate review is not a discretionary exercise: it is conducted
according to standards set forth by law regarding the degree of deference to be accorded
to the judicial or administrative body which, in the first instance, renders the underlying
adjudication. See In re L.J., 79 A.3d 1073, 1080 (Pa. 2013).4 It is helpful for litigants to
keep this distinction in mind when framing issues and formulating their advocacy,
because review for an abuse of discretion is substantially more deferential than review
for legal error. See In re Doe, 33 A.3d 615, 624 (Pa. 2011). See generally Francis M.
Allegra, Section 482: Mapping the Contours of the Abuse of Discretion Standard of
Judicial Review, 13 VA. TAX REV. 423, 462-73 (1994) (describing various standards of
4 Sometimes appellate review involves a mix of standards. For example, trial court
decisions to admit or exclude evidence are reviewed for an abuse of discretion, see, e.g.,
Commonwealth v. Jordan, 65 A.3d 318, 325 (Pa. 2013), but to the extent the ruling is
based on the trial court’s interpretation of legal authority – such as a rule of evidence, a
statute, or the Constitution – that aspect of the decision is reviewed de novo. This type
of review can be described within an abuse-of-discretion framework detailing that one
way discretion can be abused is through a misapplication of the law. See Commonwealth
v. Rogers, 250 A.3d 1209, 1215 (Pa. 2021) (recounting that the trial court excluded
evidence per Pennsylvania’s rape shield law, noting its decision would be reviewed for
an abuse of discretion, and specifying the defendant’s contention that that statute was
misapplied raises an issue of law subject to de novo review).
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judicial review). Where, as here, the litigant’s central contention is that the intermediate
court utilized an incorrect standard in reviewing a discretionary decision, the claim is, in
its central aspect, one of legal error. It thus implicates de novo review of the analysis of
that tribunal, while also taking into account the necessity for deferential review of the
decision of the agency or court of original jurisdiction. See, e.g., In re Adoption of Atencio,
650 A.2d 1064, 1066 (Pa. 1994).5 With that said, our consideration is not impeded in the
present matter as it is clear that the substance of Homeowners’ complaint is that the
Commonwealth Court overstepped its bounds by failing to accord sufficient deference to
the Board’s determination that they suffered a hardship sufficient to justify relief in the
form of a dimensional variance.
To the extent the Board, as factfinder hearing the evidence firsthand, assessed
witness credibility or resolved conflicts in the testimony, we do not supplant those
determinations. See Nettleton v. Zoning Bd. of Adjustment of Pittsburgh, 828 A.2d 1033,
1041 n.10 (Pa. 2003). See generally Commonwealth v. Johnson, 231 A.3d 807, 818 &
n.7 (Pa. 2020). As well, although Homeowners bore the burden of proof before the Board
with regard to the prerequisites for a variance, see Appeal of Bilotta, 270 A.2d 619, 620
(Pa. 1970), at the appellate level we review the record in the light most favorable to
Homeowners, as the prevailing party before the agency, and give them the benefit of all
reasonable inferences arising from the proofs adduced. See Cinram Mfg., Inc. v.
W.C.A.B. (Hill), 975 A.2d 577, 583 (Pa. 2009); Lawrenceville Stakeholders v. City of
Pittsburgh Zoning Bd. of Adjustment, 247 A.3d 465, 473 (Pa. Cmwlth. 2021).
As discussed, the Board specifically found, inter alia, that the lot was small for the
district it was in, and that in light of its undersized dimensions, strict compliance with the
5Where the common pleas court takes additional evidence in a zoning appeal, the test is
whether that court, rather than the zoning board, committed an abuse of discretion or
error of law. See Appeal of Volpe, 121 A.2d 97, 100 (Pa. 1956).
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rear-yard setback requirement would create an unnecessary hardship; most of the
improvements opposed by Objector were located within the permitted building envelope;
the proposed deck will be in the center of the property and comply with all prescribed
side-yard distances; and the encroachment into the backyard will not have an adverse
effect upon the surrounding properties or the character of the neighborhood. As to the
size of the lot and the open character of the farm behind it, the placement and dimensions
of the deck, the main structure’s inclusion within the building envelope, the compliance
with side-yard requirements, and the like, the Board’s findings were supported by the
testimony and exhibits offered by Homeowners. There is no factual controversy
concerning these items. The dispute centers primarily on the question of unnecessary
hardship.
Homeowners emphasize the deferential nature of review which applies to zoning
board decisions, together with the Hertzberg precept that the litmus for assessing
hardship for purposes of entitlement to a dimensional variance is relaxed somewhat as
compared with a use variance. They explain an appellate court should only overturn a
zoning board’s decision where the board abused its discretion or committed legal error.
Homeowners recount the various findings made by the Board, including that their lot is
undersized for the district and there is open farmland behind them. They maintain these
findings are based on substantial evidence which, when viewed as a whole in a light
favorable to themselves as the prevailing party, adequately supports the relief granted –
and that in concluding to the contrary the intermediate court interposed its own view of
the evidence instead of deferring to the findings made by the Board.
Homeowners are correct in highlighting that appellate review in the present context
is deferential and limited to whether the Board’s findings are supported by substantial
evidence and its decision is free from legal error. See Peirce v. Zoning Bd. of Adjustment
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of Upper Dublin Twp., 189 A.2d 138, 141 (Pa. 1963). Still, as Homeowners acknowledge,
any assessment of substantial evidence requires an independent record review, as
otherwise a reviewing court could not gauge whether a reasonable mind might accept the
proofs as adequate to support the findings reached. See Brief for Appellants at 13; accord
Brief for Appellee at 6. To the degree, moreover, that Homeowners suggest the
Commonwealth Court’s action was improper because it simply disagreed with the
judgment of the county court, the argument is not well taken because the intermediate
court’s disagreement pertained to whether substantial evidence supported the Board's
findings, which was well within its appellate standard. See Kneebone, 2020 WL 3866643,
at *5 (“[W]e do not agree with the Trial Court’s assessment that substantial evidence
supports the Board’s conclusions.”). Finally, a careful review of the Commonwealth
Court’s opinion does not disclose any instance in which that tribunal sought to displace
the Board’s credibility determinations or its resolution of conflicting evidence.6
Accordingly, we conclude that the Commonwealth Court utilized the correct standard in
conducting its review of the Board’s decision. And for the following reasons, we agree
with its ultimate determination that, even when reviewed deferentially, the Board’s
judgment cannot be sustained.7
6 Contrary to Justice Wecht’s suggestion, see Opinion in Support of Dismissal (“OISD”)
at 4, the Commonwealth Court did not dispute the Board’s characterization of the lot as
“undersized,” see Kneebone, 2020 WL 3866643, at *5, and we likewise have no occasion
to disagree with that adjective. “Undersized,” however, is a colloquial description in the
present context; it is not a term used by the MPC, and as such, it carries no legal
significance standing alone. The crucial finding on which there was disagreement was
whether the size of the lot, combined with the applicable zoning requirements, resulted in
an unnecessary hardship. Compare id. with Finding of Fact No. 55. This topic is
addressed below.
7It may be argued that a strict reading of the question framed by Homeowners does not
encompass the intermediate court’s application of the review standard, so long as that
court correctly identified what it was looking for, i.e., an abuse of discretion or error of law.
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As we read the Board’s decision, it was focused largely on the premise, which we
accept as supported by substantial evidence, that the variance would not have an adverse
impact upon the adjacent properties or the neighborhood as a whole, particularly as the
subject property backs up to open farmland with few if any structures nearby. See
Findings of Fact Nos. 56, 58, 60. That is a valid consideration, but it implicates only one
of the variance prerequisites listed in the MPC and the local zoning law. See 53 P.S.
§ 10910.2(a)(4) (specifying that the variance may 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”); Plainfield Twp. Zoning Code § 27-804.5.C(2)(d) (same). As quoted
above, Section 910.2(a) of the MPC, as well as the counterpart provision of the local
zoning code, contain four additional factors all relating in one way or another to the
existence of an unnecessary hardship.8 Thus, beyond the effect on adjacent properties
and the neighborhood, the presence and nature of the claimed hardship are critical to
In the deferential-review context, however, there is little distinction between failing to
afford deference while citing the right standard and doing the same pursuant to a wrong
one. Further, it would make little sense for us to affirm the judgment of the intermediate
court if we were convinced that the Board did not abuse its discretion, on the sole basis
that the Commonwealth Court nominally undertook deferential review. This is so
particularly where, as here, the parties have briefed the question. See Lomas v. Kravitz,
170 A.3d 380, 388 n.10 (Pa. 2017).
8 These factors require an unnecessary hardship that: (i) stems from the unique physical
characteristics of the property which, when combined with the zoning regulations, make
it particularly difficult to develop the property in conformity with those regulations; (ii)
makes it so that there is no possibility the property can be developed in conformity with
the zoning ordinance, and hence, a variance is needed for the reasonable use of the
property; (iii) was not created by the applicant; and (iv) would not be alleviated by a
variance appreciably more modest in extent than the one requested. See 53 P.S.
§ 10910.2(a)(1), (2), (3), (5); Plainfield Twp. Zoning Code § 27-804.5.C(2)(a), (b), (c), (e).
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whether a variance should be granted. See Wilson v. Plumstead Twp. Zoning Hearing
Bd., 936 A.2d 1061, 1065 (Pa. 2007) (explaining the party seeking a variance must show
“(1) unnecessary hardship will result if the variance is denied, and (2) the proposed use
will not be contrary to the public interest” (internal quotation marks and citation omitted)).
Initially, we recognize that there is always a tension between the exercise of the
state’s police powers in the form of land-use restrictions in the public interest, and
individual property rights as guaranteed by the constitution.9 We are also aware that the
way these competing interests are balanced in practice can be substantially influenced
by the nature of the hardship which must be demonstrated as a precondition for a zoning
variance. In light of this reality, courts have at times shifted between strict and lenient
standards in response to how their interpretation of the statutory hardship requirement
has been applied over time. See, e.g., Simplex Techs. v. Town of Newington, 766 A.2d
713, 717 (N.H. 2001) (moving to a comparatively lenient standard).
This Court in particular has rejected an overly strict construction, both in use-
variance disputes, see Allegheny W. Civic Council v. Zoning Bd. of Adjustment of
Pittsburgh, 689 A.2d 225, 228 (Pa. 1997) (citing Valley View Civic Ass’n v. Zoning Bd. of
Adjustment, 462 A.2d 637, 641-42 (Pa. 1983)); Halberstadt v. Borough of Nazareth, 687
A.2d 371, 373 (Pa. 1997), and in dimension-variance cases, see Hertzberg, 721 A.2d at
50. For purposes of the present appeal, we need not outline the exact contours of the
unnecessary-hardship prerequisite as they apply to a situation like the one under review;
but we do believe that, to give meaning to the statutory language appearing in the MPC,
property owners must make some showing beyond that their proposed use is reasonable
9Property rights are guaranteed by several constitutional provisions, including the
Declaration of Rights, see PA. CONST. art. I, § 1, the due process requirement, see U.S.
CONST. amend. XIV, and the prohibition on uncompensated takings, see U.S. CONST.
amend. V; PA. CONST. art. I, § 10.
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and they cannot build according to their preferences without violating the zoning law. Cf.
Krummenacher v. City of Minnetonka, 783 N.W.2d 721, 731 n.13 (Minn. 2010) (explaining
that many jurisdictions with a statutory unnecessary-hardship predicate “require that the
variance applicant establish real hardship if the variance is denied rather than simply
requiring that the applicant show the reasonableness of the proposed use”).
The Board, notably, did not address the statutory elements relating to hardship,
nor did it acknowledge or draw upon any judicially-expounded standard regarding what
must be proved to establish unnecessary hardship under the MPC. It opted, instead, to
articulate a single, generalized finding that, “due to the undersized dimensions of the lot,
compliance with the dimensional requirements for setbacks creates a hardship relative to
the property.” Finding of Fact No. 55. The Board’s failure to elaborate on the nature and
genesis of the hardship is a material omission because this Court has held, in light of the
statutory language, that “the hardship must truly be an ‘unnecessary’ one” unique or
peculiar to the property, “and not simply a ‘mere’ hardship.” Larsen v. Zoning Bd. of
Adjustment of Pittsburgh, 672 A.2d 286, 290 (Pa. 1996); accord McLean v. Zoning Bd. of
Adjustment of Crafton, 185 A.2d 533, 536 (Pa. 1962); Richman v. Phila. Zoning Bd. of
Adjustment, 137 A.2d 280, 284 (Pa. 1958).
As we review the record, the only person to testify for Homeowners was Mr. Pooler,
Homeowners’ general contractor. His testimony established that, due to the plans for the
addition, Homeowners cannot build both the addition and a covered deck behind their
house without violating the zoning ordinance. But he did not explain why putting
Homeowners to a choice between those two options causes them unnecessary hardship,
nor did he provide any other testimony concerning the existence of a hardship. We can
understand that a homeowner may prefer both of these items, but this does not constitute
the kind of “unnecessary hardship” contemplated by the MPC or this Court’s decisions
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applying that statute. See Kneebone, 2020 WL 3866643, at *5 (“While Pooler’s testimony
evidences [Homeowners’] preference to build a deck of a certain size, it does not
represent substantial evidence of a hardship requiring a variance[.]”).10
The question of unnecessary hardship was addressed by this Court in a case with
facts nearly identical to those of the present dispute. In Larsen, the property owners
purchased a single-family house and later built an addition onto the back of it. They then
wanted to build a raised deck attached to the rear of their house so their minor child would
have a place to play, as the backyard sloped steeply downward toward a river. Due to
the addition, however, the deck would intrude into the rear-yard setback. The local zoning
board granted a variance and the common pleas court affirmed. After the Commonwealth
Court reversed, the property owners appealed to this Court claiming the intermediate
court had exceeded its scope of review. See id. at 287-88. This Court held that the board
had erred by failing to consider the legislatively-imposed prerequisites to the grant of a
variance, and moreover, there was insufficient evidence of unnecessary hardship. See
id. at 289-90. The Court stated:
10 Homeowners’ attorney, as noted, expressed that the proposed improvements,
including the covered deck, will serve to update the house to 21st Century standards.
See supra note 2. That may be a laudable goal, but it does not imply the kind of hardship
which justifies relief from the zoning code. Rather, it suggests that the code might benefit
from amendment, which is a task for the township’s governing body.
Separately, the Board made two other findings that do not implicate the factors set forth
in the zoning ordinance. First, it stressed that Objector had a shed in her own rear-yard
setback area. See Finding of Fact No. 52. Absent discrimination (which has not been
alleged), this is an equitable concern, but it is not directly relevant under the governing
statutory framework. See Richman, 137 A.2d at 284; Vito v. Zoning Hearing Bd. of
Whitehall, 458 A.2d 620, 621 (Pa. Cmwlth. 1983). Second, the Board noted most of the
improvements Objector complained about are contained within the building envelope
allowed by the zoning law. See Finding of Fact No. 57. That, too, is immaterial as the
question before the Board was whether the zoning code’s variance prerequisites were
satisfied in relation to the portion of the site plan intruding into the setback area.
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Here, the Board found that appellants would suffer an “unnecessary
hardship” from a denial of the variance because they would be denied the
reasonable use of their land if they could not provide a play area for their
child. However, the mere desire to provide more room for a family
member’s enjoyment fails to constitute the type of “unnecessary hardship”
required by the law of this Commonwealth.
Id. at 290 (citing Appeal of Kline, 148 A.2d 915, 916 (Pa. 1959) (where the homeowner
who suffered from hay fever and asthma wanted to create more living space by enclosing
a porch, holding that the circumstances did not reflect the type of hardship contemplated
by the zoning law)).
Instantly, to the extent the Board considered the subject property to suffer from a
unique hardship due to its small size, we make two observations. First, any such reading
of the Board’s findings is problematic because the only finding which mentions
uniqueness does not expressly connect it with hardship. See Finding of Fact No. 59 (“The
Board finds that the unique physical characteristics of having open farmland directly
behind the property, coupled with the fact that the lot in question is a small lot of record
in the Farm and Forest District, are sufficient unique characteristics to justify relief.”).
Second, and more important, Larsen’s focus was on whether being denied the ability to
have both an addition and a back deck amounted to a hardship for purposes of the MPC.
Its holding was not directly tied to whether the subject lot’s size was uniquely small for the
district it was in.11
11 Notably, Larsen also clarified that a condition that affects even “a small portion of a
district is not sufficiently unique to warrant a variance, but rather should be remedied by
re-zoning.” Larsen, 672 A.2d at 291 (citing English v. Zoning Bd. of Adjustment of
Norristown, 148 A.2d 912, 914 (Pa. 1959); Walter v. Zoning Bd. of Adjustment, 263 A.2d
123, 126 (Pa. 1970)); cf. Halberstadt v. Borough of Nazareth, 687 A.2d 371, 373 (Pa.
1997) (“A neighborhood affected by a general hardship should be rezoned.”).
While we need not read the statutory “uniqueness” qualifier in its most literal or restrictive
sense, see 53 P.S. § 10603.1 (providing any ambiguity in the text of local zoning laws is
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Justice Wecht interprets our reliance on Larsen as amounting to an implicit holding
that a lot’s comparatively small size due to prior zoning regulations can never, as a matter
of law, constitute a hardship. See OISD at 4-5. He criticizes this position on two grounds.
First, he notes under Hertzberg, which post-dated Larsen, a lesser quantum of proof is
needed to establish hardship in dimensional-variance cases, and he describes our
analysis as incomplete without considering the change effectuated by that decision. Id.
at 5. Second, Justice Wecht suggests this case may be distinguished from Larsen on the
basis that the lot here is “constrained by a bygone zoning scheme” and as a consequence,
compliance with the existing setback requirements may create a hardship here where it
did not in Larsen. Id. at 6. In this respect, he acknowledges a hardship cannot be deemed
to arise from “conditions generally created by the provisions of the zoning ordinance,” 53
P.S. §10910.2(a)(1), but he posits the statutory phrase “the zoning ordinance” may signify
the current one and not include circumstances or conditions created by prior versions of
the zoning code. OISD at 6. He therefore discerns a novel issue worthy of this Court’s
review in a case where it has been raised and preserved, namely, whether a finding that
a lot is “undersized” due to a prior zoning code can ever support a finding of unnecessary
hardship. See id. at 7 n.4.
to be resolved in favor of the property owner); Bakerstown Container Corp. v. Richland
Twp., 500 A.2d 420, 421-22 (Pa. 1985) (same); see also Hunt v. Zoning Hearing Bd. of
Conewago Twp., 61 A.3d 380, 384 n.8 (Pa. Cmwlth. 2013) (observing the uniqueness
requirement is substantially relaxed where the property owner is denied any reasonable
use by an unduly restrictive ordinance), this is potentially relevant because, while the
property is smaller than presently allowed for the district, there is no evidence it is unique
in this regard, and an aerial photo included with the architect’s drawing that Homeowners
submitted to the township discloses a number of other similarly-sized properties along
Homeowners’ side of Kesslersville Road. See also N.T., Oct. 4, 2018, at 12 (reflecting
uncontradicted testimony, consistent with the aerial photo, indicating the presence of
several half-acre lots in the area). With that said, nothing in this opinion should be
construed as precluding relief where a new hardship affecting multiple properties is
created by some significant change in the neighborhood.
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We have acknowledged that, post-Hertzberg, a relaxed standard of proof is applied
in assessing whether an unnecessary hardship exists. With that said, there must still be
some evidence of hardship, and we believe it would stretch the concept of relaxation
beyond the breaking point to affirm such a finding on the present record. Notably, the
OISD does not hazard even a suggestion of what it might cull from the record to sustain
a finding of hardship under Hertzberg leniency.12 And while the OISD’s proposed issue
of law may be worth considering at the appropriate juncture, it is hard to see what
relevance it has to the present controversy. Contrary to the OISD’s suggestion,
Homeowners do not raise that specific question, see OISD at 6 (referring to “Lutz’s novel
argument”); id. at 7 (same), which is readily understandable: the only aspect of the prior
zoning regulations that has been mentioned by any party or tribunal in this matter is the
fact that the lot size conformed with that ordinance – and there is no suggestion the
setback requirements were different under the ordinance in effect when the lot was
created and when Homeowners purchased it than they are now.
Even assuming, arguendo, that not having a raised, covered deck of the size
proposed by Homeowners amounts to an unnecessary hardship, and that it can be
considered unique, one of the most conspicuous omissions by the Board was on the
question of whether the hardship was self-created. See 53 P.S. § 10910.2(a)(3) (setting
forth as an independent requirement for a variance that the hardship was not self-
12 As discussed below, the evidentiary record created by Homeowners established two
essential points: (a) building the deck would not significantly affect the surrounding area
because the subject property backs up to open farmland; and (b) Homeowners cannot
build both an addition and a raised, covered deck without intruding into the setback area.
We are not aware of any authority indicating these factors, without more, can support the
finding of an unnecessary hardship even under a lenient evidentiary standard. Cf., e.g.,
Weinstein v. Zoning Bd. of Appeals of Highland Park, 727 N.E.2d 655, 658 (Ill. App. Ct.
2000) (granting a variance to construct an addition intruding into the setback area where
the lot was small for the neighborhood and the home was functionally obsolete).
[J-80-2021] - 18
created); Plainfield Twp. Zoning Code § 27-804.5.C(2)(c) (same); POA Co. v. Findlay
Twp. Zoning Hearing Bd., 713 A.2d 70, 74 (Pa. 1998) (same). Compare Daley v. Zoning
Hearing Bd. of Upper Moreland Twp., 770 A.2d 815, 820 (Pa. Cmwlth. 2001) (affirming
the grant of a variance for additional parking where the need for such parking to make
reasonable use of the property was created by changes in the surrounding
neighborhood), with Ken-Med Assocs. v. Bd. of Supervisors of Kennedy Twp., 900 A.2d
460, 466-67 (Pa. Cmwlth. 2006) (denying a variance to allow for more parking where the
need for such parking was created by, inter alia, the landowner’s own decision to add
more offices to the building). The record reflects that the house already on the lot is two
stories with a 30-by-60 footprint, and that Homeowners constitute a family of four who
have lived there for a number of years. See N.T., Sept. 11, 2018, at 6; N.T., Oct. 4, 2018,
at 15. It is undisputed that without the addition, the deck would not extend into the rear
setback area,13 and there were no proofs that the addition was necessary to a reasonable
use of the home. See generally N.T., Oct. 4, 2018, at 15 (reflecting Mr. Pooler’s testimony
that Homeowners comprise a family of four and the addition does not include additional
bedrooms). Thus, Homeowners offered no evidence to carry their burden with respect to
the third statutory prerequisite for a variance – that the hardship was not self-created.
Accord Larsen, 672 A.2d at 291 (indicating the applicants created their own hardship by
first building an addition onto their house, thereby rendering it impossible to build a deck
that did not intrude into the rear setback area); Brief for Appellee at 17 (concluding that
the fact Homeowners cannot “put all these structures within the building envelope is, in
fact, a self-created hardship”). See generally Sweeney v. Zoning Hearing Bd. of Lower
Merion Twp., 626 A.2d 1147, 1152-52 (Pa. 1993) (finding that the zoning board erred
13The addition is designed to extend 26 feet toward the rear property line, see N.T., Sept.
11, 2018, at 6, whereas the deck, including its ingress/egress stairway, would only extend
around 18 feet in that direction.
[J-80-2021] - 19
where it made what it believed to be relevant findings but omitted any finding as to one of
the MPC’s enumerated prerequisites for a variance).
We have little doubt that municipal zoning boards are better positioned than
reviewing courts to assess local conditions and make reasoned judgments about when
circumstances prevailing in their area, combined with strict adherence to local zoning
regulations, may give rise to an unnecessary hardship. That is one of the main reasons
judicial review of such judgments is deferential. At the same time, a variance by nature
authorizes actions inconsistent with legislative restrictions on land use.14 As a
consequence, any such authorization, while allowed by law, must be accomplished in
compliance with standards set forth by law. It is at least one function of judicial review to
ensure that the local agency’s decisional process comports with those standards. Our
present review discloses that the Board erred by not predicating the variance on
satisfaction of the prerequisites set forth by the MPC and the Plainfield Township Zoning
Code, and that to the extent it found unnecessary hardship, such finding was not based
upon substantial evidence.
In sum, we conclude that the Commonwealth Court applied the correct standard
of review, and that the Zoning Hearing Board’s adjudication granting Homeowners a
dimensional variance cannot be sustained.
Justices Todd and Donohue join this opinion in support of affirmance.
14 Cf. Huntley & Huntley, Inc. v. Borough Council of Oakmont, 964 A.2d 855, 866 (Pa.
2009) (explaining that “the MPC’s authorization of local zoning laws is provided in
recognition of the unique expertise of municipal governing bodies to designate where
different uses should be permitted in a manner that accounts for the community’s
development objectives, its character, and the ‘suitabilities and special nature of particular
parts of the community’” (quoting 53 P.S. § 10603(a))).
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