Jefferson Borough v. ZHB of Jefferson Borough

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