In Re: Appeal of Chestnut Hill Community Association

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Chestnut Hill :
Community Association :
:
Appeal of: Chestnut Hill Community :
Association, Lawrence D. McEwen, :
Eileen M. Reynolds, Tom Hemphill : No. 1175 C.D. 2016
and Susan Hemphill : Argued: February 7, 2017
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
OPINION BY
JUDGE COVEY FILED: March 3, 2017
Chestnut Hill Community Association (Association), Lawrence D.
McEwen, Eileen M. Reynolds (Reynolds), Tom Hemphill and Susan Hemphill
(Hemphill) (collectively, Appellants) appeal from the Philadelphia County Common
Pleas Court’s (trial court) June 8, 2016 order denying their appeal from the City of
Philadelphia (City) Zoning Board of Adjustment’s (ZBA) decision granting a
variance to Jonathan Bernadino (Applicant) and Lindsay Bernadino (collectively,
Owners) for an open-air parking space at their property located at 210 Evergreen
Avenue, Philadelphia (Property). The issue presented for this Court’s review,
essentially, is whether the ZBA and the trial court erred by finding that denial of the
variance would result in an unnecessary hardship.1
1
Appellants’ specific issues are whether the ZBA and the trial court: (1) misinterpreted the
Philadelphia Zoning Code (Zoning Code) concerning parking in rear, side and front yards in a
Residential Single-Family Attached-3 Zoning District; (2) erred by finding an unnecessary
hardship; (3) failed to fully consider the Zoning Code’s spirit and purpose, the neighborhood’s
essential character and the public interest; and (4) failed to fully consider the public safety.
Appellants also argue that (5) the trial court erred by failing to take additional evidence related to
Owners’ intentions to park in their rear yard. However, because all of these issues relate
The Property consists of a 126’ by 25’ lot improved with a semi-
detached, single-family home, located in a Residential Single-Family Attached-3
Zoning District (RSA-3 Zoning District). The house is set back 19’4”, and its front
porch is set 13’2” back from the Property’s front lot line. On December 8, 2014,
Applicant applied to the Philadelphia Department of Licenses and Inspections
(Department) for a zoning/use registration permit (variance) to construct a single-car,
open-air parking space in the Property’s front yard. See Reproduced Record (R.R.) at
15a. Applicant specifically proposed to create a 12’ by 19’4” driveway that would be
accessed by a 12’ curb cut at the front of the Property. On April 6, 2015, the
Department refused the request because the proposed space would not meet the
required setback requirements and, with the exception of certain circumstances not
applicable here, Section 14-803(1)(b)(.1)(.a)(.ii) of the Philadelphia Zoning Code
(Zoning Code)2 expressly prohibited accessory surface parking spaces in front, side
and rear yards. Zoning Code § 14-803(1)(b)(.1)(.a)(.ii); R.R. at 314a.
On May 5, 2015, Applicant appealed to the ZBA, which held a hearing
on July 14, 2015, at which the City’s Planning Commission, Appellants and others
opposed the variance. On August 4, 2015, the ZBA granted Applicant’s variance
request. Appellants appealed to the trial court, which, without taking additional
evidence, heard oral argument on April 20, 2016. On June 8, 2016, the trial court
affirmed the ZBA’s decision. On July 6, 2016, Appellants appealed to this Court.3
specifically to whether the ZBA and the trial court erred by finding an unnecessary hardship, they
are subsumed thereunder.
2
Section 14-102 of the Zoning Code specifies that “Title 14 of The Philadelphia Code shall
be known as the Zoning Code.” Zoning Code § 14-102.
3
“Where a trial court takes no additional evidence in an appeal from a decision of the
[ZBA], this Court is limited to considering whether the [ZBA] erred as a matter of law or abused its
discretion.” German v. Zoning Bd. of Adjustment, 41 A.3d 947, 949 n.1 (Pa. Cmwlth. 2012). “A
[ZBA] abuses its discretion if its findings are not supported by substantial evidence.” Arter v.
Phila. Zoning Bd. of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth. 2007).
The trial court issued its opinion on September 7, 2016.
2
Initially, Section 14-803(1)(b)(.1)(.a) of the Zoning Code states, in
relevant part:
Except as specified in [Section] 14-803(1)(b)(.1)(.b) [of the
Zoning Code] (Exceptions) below, accessory parking in
Residential . . . Districts must comply with the requirements
in this [Section] 14-803(1)(b)(.1)(.a) [of the Zoning Code]
....
(.ii) Surface parking spaces and detached garages
and carports are prohibited in required front,
side, and rear yards.
(.iii) Driveways that provide vehicular access to
accessory parking spaces may be located in required
front, side, or rear yards.
Zoning Code § 14-803(1)(b)(.1)(.a); R.R. at 314a (emphasis added). Because a
parking space like the one Applicant proposed is expressly prohibited everywhere on
the Property, a variance is necessary.
Section 14-103(4)(a) of Zoning Code provides that the ZBA “may, after
public notice and public hearing . . . [a]uthorize variances from the terms of this
Zoning Code[.]” Zoning Code § 14-103(4)(a).
An applicant seeking a variance must prove that
unnecessary hardship will result if the variance is denied
and that the proposed use is not contrary to the public
interest. Valley View Civic [Ass’n] v. Zoning [Bd.] of
Adjustment, . . . 462 A.2d 637 ([Pa.] 1983). When an
applicant seeks a variance for a property located in
Philadelphia, the [ZBA] must also consider the factors
set forth in the [Zoning Code]. Wilson v. Plumstead
[Twp.] Zoning Hearing [Bd.], . . . 936 A.2d 1061 ([Pa.]
2007).
Singer v. Phila. Zoning Bd. of Adjustment, 29 A.3d 144, 148 (Pa. Cmwlth. 2011).
3
Section 14-303(8)(e) of the Zoning Code sets forth the ZBA’s variance
approval criteria:
The [ZBA] shall grant a variance only if it determines
that the applicant has demonstrated that the criteria of
[Section] 14-303(8)(e) [of the Zoning Code] (Criteria for
Approval) have been met and that any applicable criteria
in [Section] 14-303(8)(f) [of the Zoning Code] (Additional
Criteria for Floodplain Variances) through [Section] 14-
303(8)(h) [of the Zoning Code] (Additional Criteria for
Height Variances Near the Airport) have been met.
Otherwise, the [ZBA] shall deny the variance.
(.1) General Criteria.
The [ZBA] may grant a lesser variance than requested, and
may attach such reasonable conditions and safeguards as it
may deem necessary to implement this Zoning Code,
including without limitation a limitation on the size or
duration of the variance, consistent with [Section] 14-
303(9) [of the Zoning Code] (Conditions on Approvals).
The [ZBA] shall, in writing, set forth each required finding
for each variance that is granted, set forth each finding that
is not satisfied for each variance that is denied, and to the
extent that a specific finding is not relevant to the decision,
shall so state. Each finding shall be supported by
substantial evidence. If the [ZBA] chooses to view the
subject property as part of the hearing, the [ZBA] must
provide due process. Reports of other City agencies made
as a result of inquiry by the [ZBA] shall not be considered
hearsay. Upon request of any party, the [ZBA] may compel
the attendance of the City agency. The [ZBA] shall grant a
variance only if it finds each of the following criteria are
satisfied:
(.a) The denial of the variance would result in an
unnecessary hardship. The applicant shall demonstrate that
the unnecessary hardship was not created by the applicant
and that the criteria set forth in [Section] 14-303(8)(e)(.2)
[of the Zoning Code] (Use Variances) below, in the case of
use variances, or the criteria set forth in [Section] 14-
303(8)(e)(.3) [of the Zoning Code] (Dimensional
4
Variances) below, in the case of dimensional variances,
have been satisfied;
(.b) The variance, whether use or dimensional, if
authorized will represent the minimum variance that will
afford relief and will represent the least modification
possible of the use or dimensional regulation in issue;
(.c) The grant of the variance will be in harmony with the
purpose and spirit of this Zoning Code;
(.d) The grant of the variance will not substantially
increase congestion in the public streets, increase the danger
of fire, or otherwise endanger the public health, safety, or
general welfare;
(.e) The variance will not substantially or permanently
injure the appropriate use of adjacent conforming property
or impair an adequate supply of light and air to adjacent
conforming property;
(.f) The grant of the variance will not adversely affect
transportation or unduly burden water, sewer, school, park,
or other public facilities;
(.g) The grant of the variance will not adversely and
substantially affect the implementation of any adopted plan
for the area where the property is located; and
(.h) The grant of the variance will not create any
significant environmental damage, pollution, erosion, or
siltation, and will not significantly increase the danger of
flooding either during or after construction, and the
applicant will take measures to minimize environmental
damage during any construction.
Zoning Code § 14-303(8)(e) (text emphasis added); R.R. at 301a-302a.4
4
The variance criteria list quoted in the ZBA’s decision differs from that which actually
appears in Section 14-303(8)(e) of the Zoning Code. See R.R. at 301a-302a, 346a. Herein, we
specifically quote Section 14-303(8)(e) of the Zoning Code.
Section 6107 of the Judicial Code provides, in relevant part:
(a) General rule.--The ordinances of municipal corporations of this
Commonwealth shall be judicially noticed.
5
This Court has summarized:
In essence, an applicant seeking a variance pursuant to
the [Zoning Code] must demonstrate that: (1) the denial
of the variance will result in unnecessary hardship unique
to the property; (2) the variance will not adversely
impact the public interest; and (3) the variance is the
minimum variance necessary to afford relief. Hertzberg
[v. Zoning Bd. of Adjustment of the City of Pittsburgh, 721
A.2d 43 (Pa. 1998)]. The burden on an applicant seeking
a variance is a heavy one, and the reasons for granting
the variance must be substantial, serious and
compelling. Valley View.
Singer, 29 A.3d at 149 (emphasis added); see also Marshall v. City of Phila., 97 A.3d
323 (Pa. 2014).
Appellants argue that the ZBA and the trial court erred by concluding
that denial of the variance would result in an unnecessary hardship. They specifically
averred that the ZBA misapplied Section 14-803(1)(b)(.1)(.a)(.ii) of the Zoning Code,
and failed to make findings that physical circumstances unique to the Property
created an unnecessary hardship. Appellants further argue that the ZBA and the trial
court erred by failing to fully consider the Zoning Code’s spirit and purpose, the
neighborhood’s essential character, the community interest and public safety.
Applicant had the burden of proving by substantial evidence, inter alia,
that denying the variance would result in unnecessary hardship. Section 14-
303(8)(e)(.1)(.a) of the Zoning Code. Section 14-303(8)(e)(.2) of the Zoning Code
provides:
To find an unnecessary hardship in the case of a use
variance, the [ZBA] must make all of the following
findings:
(b) Manner of proving ordinances.--The tribunal may inform itself
of such ordinances in such manner as it may deem proper and the
tribunal may call upon counsel to aid it in obtaining such information.
42 Pa.C.S. § 6107.
6
(.a) That there are unique physical circumstances or
conditions (such as irregularity, narrowness, or shallowness
of lot size or shape, or exceptional topographical or other
physical conditions) peculiar to the property, and that the
unnecessary hardship is due to such conditions and not to
circumstances or conditions generally created by the
provisions of this Zoning Code in the area or zoning district
where the property is located;
(.b) That because of those physical circumstances or
conditions, there is no possibility that the property can be
used in strict conformity with the provisions of this
Zoning Code and that the authorization of a variance is
therefore necessary to enable the viable economic use of the
property;
(.c) That the use 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; and
(.d) That the hardship cannot be cured by the grant of a
dimensional variance.
Zoning Code § 14-303(8)(e)(.2); R.R. at 302a (emphasis added).
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 v. Zoning Bd. of Adjustment of the City of Pittsburgh,
672 A.2d 286, 289-90 (Pa. 1996)5 (emphasis added). Moreover, Section 14-
5
[T]he [Pennsylvania] Municipalities Planning Code (MPC)[, Act of
July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202,] grants
to each municipality the authority to enact and enforce zoning
ordinances. See Wilson . . . ; [Section 601 of the MPC,] 53 P.S. §
10601. Philadelphia has enacted its own Zoning Code, which
accordingly must be applied to zoning cases arising in Philadelphia.
[Wilson, 936 A.2d] at 1065, 1067. However, the requirements for the
grant of a variance under the Philadelphia Zoning Code and the MPC
are coterminous in several respects. Id. at 1067. Throughout this
opinion, as in prior decisions, we cite relevant precedent not just from
7
303(8)(e)(.1) of the Zoning Code mandates that “[e]ach finding shall be
supported by substantial evidence.” Zoning Code § 14-303(8)(e)(.1); R.R. at 301a
(emphasis added). “Substantial evidence is such relevant evidence as a reasonable
mind might consider as adequate to support a conclusion.” Arter v. Phila. Zoning Bd.
of Adjustment, 916 A.2d 1222, 1226 n.9 (Pa. Cmwlth. 2007).
Based upon the evidence presented before it, the ZBA made the
following findings of fact (FOF):
9. The proposed driveway is sufficiently long to allow a car
to park without extending onto the sidewalk. The proposed
parking space therefore would not impede[] pedestrian
traffic. 7/14/2015 N.T. at 10-12.
10. There is no way to create rear[-]access parking at the
Property. Due to the narrowness of the existing side yard, it
is likewise impossible to extend the proposed driveway to
allow for parking in the rear yard. See Plot Plan; 7/14/2015
N.T. at 15-16.
11. Parking is not permitted on [Owners’] side of the street.
The proposed parking space would therefore create an
additional parking space without eliminating an existing on
street space. 4 /15/2014 N.T. at 10-11.
12. There are a number of curb cuts on [Owners’] block.
See Photos of Surrounding Properties; 7/14/2015 N.T. at 19,
22, 26.
13. [Applicant] submitted letters to the [ZBA] from near
neighbors who support [Applicant’s] request, including
neighbors residing in the immediately[-]adjacent homes to
either side of the Property. See Letters in Support.
14. Prior to appearing before the [ZBA], [Owners] met with
the [Association], the Registered Community Organization
(‘RCO’) for the area, on a number of occasions. [The
Philadelphia, but also from municipalities throughout the
Commonwealth. Id. at 1065.
Marshall, 97 A.3d at 329 n.9.
8
Association] does not support [Applicant’s] proposal. See
Letter from [the Association] to [the ZBA], dated
7/01/2015.
15. The proposal is also opposed by the Planning
Commission, the Chestnut Hill Historical Society (‘CHHS’)
and District Councilwoman Cindy Bass. See Letter from
the Honorable Cindy Bass to [the] ZBA, dated 7/13/2015;
Letter from CHHS to [the] ZBA, dated 7/30/2015;
7/14/2015 N.T. at 29.
16. Area residents [Reynolds] and [] Hemphill appeared at
the zoning hearing and testified in opposition to the []
proposal.
17. [Reynolds], who resides at 195 East Evergreen Avenue,
acknowledged that there are existing driveways on the
subject block, but said ‘there has not been a driveway
installed on the street for 20 years.’ She expressed concern
that approval of [Applicant’s] proposal would set a
precedent. 7/14/2015 N.T. at 22-23.
18. [] Hemphill, who resides at 218 East Evergreen Avenue,
noted that there are ‘a number of curb cuts on [her] street
already.’ Describing the existing driveways, she said
‘[t]hey are tight, and the cars often hang onto the sidewalk
and impede[] pedestrian traffic.[’] 7/14/2015 N.T. at 27.
ZBA Dec. at 2; R.R. at 345a. As a result of those findings, the ZBA concluded:
8. The [ZBA] concludes that Applicant’s proposal meets the
requirements for grant of the required variance.
9. With respect to the hardship requirement, the [ZBA]
notes that due to the configuration of the Property and the
location of the existing structure, rear[-]access parking is
not possible at the site.
10. The proposed parking, because set back from the street
and sized to accommodate only one vehicle, requires the
least variance necessary to afford relief.
11. The [ZBA] therefore concludes, based on the evidence
of record, that denial of the requested variance would result
in unnecessary hardship.
9
12. The [ZBA] additionally concludes that the remaining
criteria for grant of a variance are satisfied.
13. With respect to the requirement that the proposed use
not have a negative impact on the public health, safety or
welfare, the [ZBA] notes that the proposed parking space is
consistent with surrounding uses, is supported by the
immediately adjacent neighbors, and will result in a net gain
in the number of parking spaces on the block.
14. For all of the above[-]stated reasons, the [ZBA]
concludes that the requested variance was properly granted.
ZBA Dec. at 4; R.R. at 347a. The trial court agreed.
Zoning Code Section 14-103(8)(e)(.2)(.a)
Unnecessary hardship due to unique physical circumstances or conditions
Pursuant to Section 14-103(8)(e)(.2)(.a) of the Zoning Code, in order to
conclude that unnecessary hardship warrants a use variance, the ZBA was required to
make a finding that the hardship is due to physical circumstances or conditions
unique to the Property, and “not to circumstances or conditions generally created by
the provisions of this Zoning Code in the [RSA-3 Zoning District.]” See Zoning
Code § 14-303(8)(e)(.2)(.a); R.R. at 302a.
The ZBA here made findings related to the Property’s physical
circumstances. In FOF 10, the ZBA stated: “There is no way to create rear[-]access
parking at the Property. Due to the narrowness of the existing side yard, it is likewise
impossible to extend the proposed driveway to allow for parking in the rear yard.”
ZBA Dec. at 2; R.R. at 345a. Accordingly, the ZBA declared: “With respect to the
hardship requirement, . . . due to the configuration of the Property and the location of
the existing structure, rear[-]access parking is not possible at the site” and, thus,
“denial of the requested variance would result in unnecessary hardship.” ZBA Dec.
at 4; R.R. at 347a (emphasis added). While we disagree with Appellants that the
ZBA failed to make findings that the Property’s physical circumstances created a
10
hardship, we agree with Appellants that the ZBA predicated its hardship findings on
the mistaken assumption that Owners had the right to park on the Property and,
therefore, misapplied Section 14-803(1)(b)(.1)(.a)(.ii) of the Zoning Code.
Of the enumerated exceptions to the Zoning Code’s accessory parking
requirements set forth in Section 14-803(1)(b)(.1)(.b) of the Zoning Code, the one
most closely related to the facts of this case is contained in Section 14-
803(1)(b)(.1)(.b)(.1) of the Zoning Code, which specifies that “[r]esidential parking
shall be permitted in the required rear yard of an attached building where the lot is
served by a rear alley or shared driveway with a minimum width of 12 [feet].”6
Zoning Code § 14-803(1)(b)(.1)(.b)(.1); R.R. at 314a. At the ZBA hearing, Applicant
described that the adjacent neighbors have a driveway leading from the street to a
garage at the rear of their property, but it is not a shared driveway. Applicant further
testified that there is no alley access at the back of the Property. Thus, the Section
14-803(1)(b)(.1)(.b)(.1) exception to Section 14-803(1)(b)(.1)(.a) of the Zoning Code
does not apply in this case. Under circumstances in which Owners are prohibited
from having a rear parking space, their physical inability to reach such a space cannot
constitute a hardship.7 Accordingly, there was no substantial evidence to support the
6
The Zoning Code defines “shared driveway” as “[a] common right-of-way shared by three
or more abutting landowners . . . that provides vehicular access to one or more lots . . . .” Zoning
Code § 14-203(101); R.R. at 288a. The Zoning Code defines “shared driveway” as “[a] common
right-of-way shared by three or more abutting landowners . . . that provides vehicular access to one
or more lots . . . .” Zoning Code § 14-203(101); R.R. at 288a.
7
There is no merit to Appellants’ argument that the trial court erred by failing to conduct a
hearing to take additional evidence, specifically in the form of the Association’s June 16, 2015
Development Review Committee meeting minutes, that Owners did not intend to build a rear yard
garage or carport. This Court has held that “[a] trial court faces compulsion to hear additional
evidence in a zoning case only where the party seeking the hearing demonstrates that the record is
incomplete because the party was denied the opportunity to be heard fully, or because relevant
testimony was offered and excluded.” Berryman v. Wyoming Borough Zoning Hearing Bd., 884
A.2d 386, 388 n.2 (Pa. Cmwlth. 2005). Here, because Applicant’s proposal was only to park in the
front yard, and we have determined that the Zoning Code prohibits Owners from parking in their
rear yard, whether Owners intended to construct a rear yard garage or carport is irrelevant.
11
ZBA’s conclusion that denying the variance would result in a hardship due to
physical circumstances or conditions unique to the Property.
The ZBA made no other finding that the Property was subject to unique
physical circumstances or conditions that created an unnecessary hardship, and there
was no record evidence to support such a finding. Applicant’s counsel argued to this
Court that Owners’ hardship was the lack of parking available in the neighborhood,
particularly at night when they return home from work. However, although a
shortage of neighborhood parking may present a hardship to Owners, it is not a
hardship based upon a condition unique to the Property.
“The hardship must be unique to the property at issue, not a hardship
arising from the impact of the zoning regulations on the entire district.” Marshall, 97
A.3d at 329. Reynolds testified that the lack of City parking is a notorious
problem, particularly in Owners’ neighborhood. She admitted that street parking
is only permitted on the opposite side of the street from the Property, but she and
Hemphill explained that the neighbors obtained residential parking permits from the
City that have alleviated the residents’ parking problems. See R.R. at 44a, 49a-50a.
Hemphill stated that, 9 times out of 10, she and her husband are able to find parking
on their street. See R.R. at 50a. Reynolds and Hemphill acknowledged that three
properties on the 200 block have front yard parking spaces like the one Applicant
proposed, including Owners’ attached neighbor;8 however, none were installed in the
Accordingly, the trial court did not err by failing to conduct a hearing to take additional evidence on
that issue.
8
Notably, in Applicant’s May 5, 2015 appeal to the ZBA, he declared that compliance with
the Zoning Code would cause an unnecessary hardship because the proposed parking space cannot
meet the Zoning Code’s setback requirements, and added that the proposed “configuration is
common on our block with many homes on this side of the street having parking located in the front
yard set[]back.” R.R. at 18a.
This Court has held that “grants of variances to one’s neighbors do not, as a matter of law,
furnish a property owner with any legal justification for a variance . . . . Each must be judged on its
own merits.” Vito v. Zoning Hearing Bd. of Borough of Whitehall, 458 A.2d 620, 621 (Pa. Cmwlth.
12
past 20 years and the three existing ones were grandfathered.9 See R.R. at 43a-45a,
48a. Reynolds further declared that Owners purchased the Property from a developer
with knowledge that the proposed parking space was prohibited, since the developer
“tried to do exactly the same thing,” but was denied by the City’s Street Department.
R.R. at 42a.
Since the evidence makes clear that every property in the subject
neighborhood is hampered by parking limitations and is bound by the same surface
parking restrictions set forth in Section 14-803(1)(b)(.1)(.a) of the Zoning Code, there
is nothing unique about the Property’s physical circumstances or conditions that
creates an unnecessary hardship in this instance. Because Applicant did not satisfy
the Zoning Code requirement “that the unnecessary hardship is . . . not [due] to
circumstances or conditions generally created by the provisions of this Zoning Code
in the [RSA-3 Zoning District],” as mandated by Section 14-303(8)(e)(.2) of the
Zoning Code, the ZBA could not making such a finding. Accordingly, there was no
evidence before the ZBA of an unnecessary hardship unique or peculiar to the
Property.10
1983). Our Supreme Court has rejected the argument that a variance may be granted merely
because other variances had been issued for adjacent properties subject to similar circumstances,
stating:
the acceptance of such an argument would lead to absurd results.
Under appellant’s theory the issuance of a single variance would
justify a complete rezoning of a particular area by the utilization of
the variance procedure, a practice condemned on numerous occasions
by this court.
Spadaro v. Zoning Bd. of Adjustment of Phila., 147 A.2d 159, 161 (Pa. 1959).
9
Testimony by Applicant, Reynolds and Hemphill revealed that there are also several
driveways along the street providing certain qualified residents access to their rear parking spaces.
However, since a rear parking space is not at issue in this case, that evidence is irrelevant.
10
Because Applicant failed to meet his burden of proving this first criteria, we need not
address whether the ZBA erred by concluding that “the remaining criteria for grant of a variance are
satisfied” and, thus, failing to make specific findings relative to the remaining unnecessary hardship
13
Conclusion
Based on the foregoing, the record evidence reveals that the ZBA
granted Applicant a variance without findings supported by substantial evidence that
physical circumstances unique to the Property created an unnecessary hardship. We
acknowledge that “[a zoning board’s] interpretation of its own zoning ordinance is
entitled to great deference and weight.”11 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 [ZBA] 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; emphasis added) (quoting Ludwig v.
Zoning Hearing Bd. of Earl Twp., 658 A.2d 836, 838 (Pa. Cmwlth. 1995)). Our
Supreme Court succinctly explained:
In the leading case of Application of Devereux Found[.], . . .
41 A.2d 744, . . . 746[-47 (Pa. 1945)], Justice, now Chief
criteria specified in Section 14-303(8)(e)(.2)(.b)-(.d) of the Zoning Code. ZBA Dec. at 4; R.R. at
347a.
11
The Pennsylvania Supreme Court has made clear that “the authority of a zoning board to
act arises exclusively from the ordinance and the enabling statute and the language of both
demarcates [its] jurisdiction . . . .” Norate Corp. v. Zoning Bd. of Adjustment of Upper Moreland
Twp., 207 A.2d 890, 893-94 (Pa. 1965).
14
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, 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 board 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 ZBA failed to adhere to the Zoning Code’s
mandates.
Moreover, “[w]here substantial evidence does not support the [ZBA]’s
findings, the [ZBA] abused its discretion and reversal is warranted.” Hafner, 974
15
A.2d at 1209 n.1. Even reviewing the evidence in the Applicant’s favor, as we must,
we hold that there was not substantial evidence to support the ZBA’s findings and
conclusions that denial of the requested variance would result in unnecessary
hardship. In the absence of such findings, the ZBA’s decision must be reversed.
Based upon the foregoing, the trial court’s order is reversed.
___________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Chestnut Hill :
Community Association :
:
Appeal of: Chestnut Hill Community :
Association, Lawrence D. McEwen, :
Eileen M. Reynolds, Tom Hemphill : No. 1175 C.D. 2016
and Susan Hemphill :
ORDER
AND NOW, this 3rd day of March, 2017, the Philadelphia County
Common Pleas Court’s June 8, 2016 order is reversed.
___________________________
ANNE E. COVEY, Judge