R. Stat & R.F. Bishop v. Kennett Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Stat and Randall F. Bishop, :
Appellants :
:
v. : No. 888 C.D. 2018
: Argued: September 9, 2019
Kennett Township Zoning Hearing :
Board :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 7, 2019
Richard Stat and Randall F. Bishop (Objectors)1 appeal from the May 29,
2018 Order of the Court of Common Pleas of Chester County (common pleas) that
denied Objectors’ appeal from the Decision of the Kennett Township Zoning
Hearing Board (Board) and affirmed the Board’s grant of a dimensional variance
to Chester Water Authority (Authority). On appeal, Objectors argue that the Board
erred or abused its discretion in: not finding that the Authority’s proposed use
required a special exception or conditional use permit; applying the wrong legal
1
On April 3, 2019, counsel for Objectors filed with the Court a “Suggestion of Death of
Appellant, Randall F. Bishop,” advising the Court that Mr. Bishop had passed away and that a
personal representative had not yet been appointed. No additional information has been filed
with the Court regarding this issue.
standard in approving the dimensional variance; and granting the dimensional
variance where the Authority had not met its burden of proving its entitlement to
that relief.2
I. Background
A. Facts
The Authority is a municipal authority organized under the Municipality
Authorities Act3 and is responsible for providing public water services to
governmental units and individuals in Delaware and Chester Counties. The
Authority owns a 5.4-acre property (Property) located in the SA-Specialized
Agricultural District (SA district) in Kennett Township (Township). It has
operated facilities on the Property since 1975, when it received a special exception
from the Board to construct a pumping station. (Reproduced Record (R.R.) at
196a-201a.) That special exception was necessary because the “pumping station”
use was not set forth in the Township Zoning Ordinance (Ordinance),4 but the
Ordinance did allow for a “public water supply” 5 use as of right. (Id. at 48a.) In
1989, the Authority received approval to add a water storage tank and distribution
system booster station, with generator, to the Property. (Id. at 202a-05a.) The
Authority’s neighbors in the SA district are primarily mushroom houses, but Mr.
Bishop’s residential property is immediately adjacent to the Property. Pursuant to
2
We have rearranged the arguments for ease of discussion.
3
53 Pa. C.S. §§ 5601-5623.
4
The relevant sections of the Ordinance are set forth in Appendix D to Objectors’ brief.
5
Township’s Zoning Officer testified this permitted use was defined as “[w]ater
distributed and furnished by or through the agency of a municipality or privately owned water
company subject to inspections and regulations by the Pennsylvania Department of Health.”
(R.R. at 48a.)
2
the Ordinance, mushroom farms and greenhouses in the SA district are permitted
70 percent impervious lot coverage, but other uses in that district, including the
Authority’s use, are limited to 20-percent impervious lot coverage.
At issue is an application the Authority filed with the Board to expand its
facilities on the Property to include a 1.5-million-gallon storage tank, a bulk water
filling station, an emergency generator, an enclosed garage for Authority vehicles,
a fuel filling station, and a two-story office building. The Authority initially
sought a special exception in addition to a dimensional variance from the 20-
percent lot coverage restriction. Following a description, at a hearing, of the
Authority’s historic and preexisting use of the Property and the 1975 and 1989
approvals of that use, Township’s Zoning Officer stated that the proposed use did
not require a special exception, and the Authority withdrew its special exception
request. (Id. at 47a-51a.) Thus, the only part of the application that remained
before the Board was the dimensional variance request. The variance was required
because the proposed plans would result in lot coverage of 26.43 percent, which
would “slightly exceed the maximum lot coverage permitted in the SA . . .
[d]istrict.” (Application, R.R. at 7a.)
The Authority presented the testimony of its Executive Manager (Manager)
and its Engineer, as well as an Outside Engineer, who explained the Authority’s
purpose, its current use of the Property, the proposed plan, and why the expansion
and dimensional variances were needed. Based on that testimony, the Board made
the following findings of fact.
The Authority serves 13 communities and provides wholesale water service
to 7 customers, with a total of 65,000 properties served. The Authority’s existing
facilities on the Property serve about 2100 customers in 3 municipalities, including
3
Township, and provide wholesale water to the Borough of Kennett Square
(Borough). The new water storage tank would be 35 feet high, painted, and
located on the portion of the Property that is adjacent to mushroom farms. That
tank is needed to satisfy current customer requirements, to serve the anticipated
population growth in the service area, to have an emergency backup system, and to
provide water for local firefighting services. The “tank will better serve to provide
water for three days in the event there is an interruption in the water main” that
bisects the Property. (Board Decision, Finding of Fact (FOF) ¶ 16.) The proposed
bulk water filling station is designed, primarily, to fill fire company tankers, but is
also available to others that may need bulk water. The new emergency generator is
intended to support the existing pump station, would be operated by propane, and
would be “housed in an acoustic enclosure with a critical grade silencer muffler.”
(Id. ¶ 21.) The only sound that would emanate from that enclosure would be
similar to that of a dishwasher.
The Authority proposed to close its current leased office space, located in
the Borough, and open an office on the Property. That office would be staffed by
two employees from 9:00 a.m. to 5:00 p.m., who would accept customer payments
and process new applications. The Authority estimated that 20 to 25 customers
would use the office a week. The second story of the office would “be used for
emergency operations for disaster events.” (Id. ¶ 19.) The proposed enclosed
parking garage would be used to park a portion of the Authority’s service vehicles,
all of which are currently located in the City of Chester (Chester). Those vehicles
would be used by Authority employees, who would come to the Property in their
personal vehicles, park, take the Authority vehicles to attend to their duties, and
then return at the end of the day. The Authority needs to have vehicles on the
4
Property to improve its response time, which, currently, is between 45 minutes to 1
hour due to the vehicles’ location in Chester. The proposed fueling station would
be a more efficient means of fueling the Authority’s vehicles and would receive
fuel deliveries every six to eight weeks.
The Authority anticipated construction of the facilities would occur over
three to four years in order to reduce the costs to its water customers. The Board
noted the Authority’s concession that there were sight distance issues with the
current plan, and that the Authority still would have to obtain land development
approval, which would require the Authority to meet the Subdivision and Land
Development Ordinance’s requirements, including landscaping of the existing and
proposed facilities. Township’s Board of Supervisors was in favor of the proposed
plan.
Objectors, who were granted party status by the Board, and others,
questioned the Authority’s witnesses and provided their own testimony.
Objectors’ complaints focused on the plan’s visual appearance, the potential
increase in traffic and noise, and the increase in the number of activities on the
Property. The current stormwater management basin drains onto Mr. Bishop’s
property, which he believed was causing erosion. Mr. Bishop also objected to how
close the existing storage tank was to his property. Mr. Stat questioned the
withdrawal of the special exception request, contending that the proposed use was
different from the current use. However, Mr. Stat was advised this issue was no
longer before the Board because the special exception request had been withdrawn.
B. The Board’s Decision
Based on the above findings of fact and its interpretation of the Ordinance,
the Board held that the Authority had met the requirements for obtaining a
5
variance, noting that the Authority was requesting a “hybrid variance which
require[d] a less strict compliance with the variance standards of the [Ordinance]
and the Pennsylvania Municipalities Planning Code”6 (MPC). (Board Decision at
8 (citing Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d
1260 (Pa. Cmwlth. 2011)).) The Board concluded that the Authority’s additions to
its “municipal authority use on the Property” were necessary to allow the Authority
“to provide a better level of service and an adequate supply of potable water to the
public, to fire companies, and continuity of supply in the event of an emergency.”
(Id.) According to the Board, the existing and proposed facilities were “integral
parts of the Authority’s public water service operations.” (FOF ¶ 31.) The Board
gave “great weight” to the public service component of the Authority’s operations
in its consideration of the variance request. (Board Decision at 8.)
The Board found that the current impervious coverage of the Property is
7.94 percent, or 16,636 square feet, and the proposed plan would add 38,741
square feet of impervious coverage, for a total of 55,377 square feet. (FOF ¶¶ 32-
34.) The allowed impervious coverage under the Ordinance was 41,905 square
feet; thus, the proposed lot coverage was approximately 13,472 square feet, or 6.43
percent, more than the Ordinance’s limit. (Id. ¶ 34.) Comparing the proposed lot
coverage, 26.43 percent, to the permitted 70 percent lot coverage of the mushroom
farms neighboring the Property, the Board found that 6.43 percent “seem[ed] to be
an insignificant addition of impervious coverage.” (Board Decision at 8.) It held
the 20-percent lot coverage provision “restrict[ed] the [Authority’s] ability to
continue to make reasonable use of the Property; that is, it restrict[ed] the
Authority from doing what is necessary in order to carry out its public water
6
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202.
6
supply obligations and responsibilities.” (Id.) This, the Board concluded,
“create[d] a hardship on the Authority.” (Id.)
Further, the Board determined that “granting the variance will not affect the
surrounding community[,] which is mostly agricultural and occupied by mushroom
houses,” (Board Decision at 9), “alter the essential character of the zoning district
in which the Property is located,” or “substantially or permanently impair the
appropriate use or development of [the] adjacent nonresidential property or the
residential property,” as “long as there is a sufficient landscape buffer installed
adjacent to the residential property,” (FOF ¶¶ 40-41). The Board further observed
that, other than Mr. Bishop’s property, the Authority’s neighbors in the SA district
are mushroom farms. (Board Decision at 8-9.) Finally, it found that approving the
variance would “not be detrimental to the public welfare.” (FOF ¶ 42.)
Accordingly, the Board granted the variance, but imposed seven conditions on that
approval.7 Those conditions included that: the Authority had to obtain the
necessary approvals for its land development plan, which had to comply with the
required design standards, including for landscaping, lighting, noise, signage, and
driveway sight distance; the stormwater drainage plan had to address issues with
stormwater discharge onto adjacent properties; the Authority had to install a
landscape buffer adjacent to the residential property; and the Authority’s vehicles
had to be parked within the proposed garage and no maintenance, other than minor
maintenance, on those vehicles was permitted.
7
The Board imposed two other conditions: the Authority’s operations and activities on
the Property had to be in accordance with the evidence presented at the hearing; and the
conditions related to the limitation of access to the Property and noise levels set forth in the 1975
decision remained. (Board Decision at 9-10.)
7
C. Common Pleas’ Decision
Objectors appealed to common pleas essentially raising two challenges.
First, Objectors challenged the Board’s characterization of the Authority’s use of
the Property, arguing the Board erred or abused its discretion when it held that the
Authority was engaged in a permitted “municipal authority use” on the Property
where the Ordinance contains no such use, instead of finding that the Authority’s
proposed use was a “public use,” which is not permitted in the SA district. It
further erred when it did not require the Authority to obtain a conditional use
approval for the proposed use. Second, Objectors challenged the Board’s grant of
the dimensional variance, arguing the Board should not have applied the relaxed
“hybrid standard” and the Authority did not meet all of the requirements for
obtaining the variance, particularly that it would suffer unnecessary hardship if the
dimensional variance was denied. Objectors argued, citing Township of East Caln
v. Zoning Hearing Board of East Caln Township, 915 A.2d 1249, 1254 (Pa.
Cmwlth. 2007), that the Board erred in granting the variance based solely on the
expansion being in the public’s interest.
Common pleas affirmed the Board and resolved Objectors’ arguments as
follows. With regard to the first argument, common pleas found that, in using the
phrase “municipal authority use,” the Board was “simply characterizing the type of
use that [the Authority] was engaged in on the Property” and “describing the type
of services that [the Authority] provided to the public,” not legally defining that
use. (Common Pleas’ Opinion, May 29, 2018 (May 29, 2018 Op.), at 8-9.)
Common pleas observed that the “minor public utility” use cited by Objectors was
not added to the Ordinance until 2007, after the Authority’s permitted use of the
Property began. Further, common pleas held, inter alia, that, because the
8
Authority withdrew its request for a special exception, this issue was not before the
Board and was not subject to appeal to common pleas.
With regard to the variance, common pleas discerned no error in the Board’s
application of a relaxed standard in reviewing the Authority’s dimensional
variance request. (May 29, 2018 Op. at 5-6 (citing Hertzberg v. Zoning Bd. of
Adjustment, 721 A.2d 43, 47 (Pa. 1998); Segal v. Zoning Hearing Bd. of
Buckingham Twp., 771 A.2d 90, 94 (Pa. Cmwlth. 2001)).) Citing Hertzberg, and
after setting forth the Ordinance’s standards for granting a variance, which exclude
financial gain as a basis for that relief, common pleas determined the Authority had
established the requisite hardship for obtaining a dimensional variance. (May 29,
2018 Op. at 6 (citing Sections 240-2306.C, 240-2306.D of the Ordinance).)
Common pleas held the Board did not base its finding of hardship solely on the
project being in the public’s interest, but its decision was based on substantial
evidence that “demonstrated not only the existence of a hardship but also that the
Property cannot be developed in strict conformity with the . . . Ordinance
provisions.” (Id. at 7.) It noted that the Authority had owned and used the
Property as part of its facilities since 1975, long before the imposition of the 20-
percent lot coverage restriction, making the preexisting permitted use constrained
by the Property’s physical conditions. The Authority, common pleas concluded,
provided essential public water services to the public and, due to the population
growth and the need for fire and emergency backup services in the area, the grant
of the variance was not inconsistent with the Ordinance’s requirements or contrary
to the public health, safety, and welfare. Thus, common pleas held the Authority
did not create its hardship. Like the Board, common pleas cited the lot coverage
disparity in the SA district as support for the conclusion that the proposed
9
expansion would not alter the essential character of the zoning district or impair the
use of the nonresidential properties. Common pleas held that the effect on the
residential properties would be addressed by the Board’s conditions. Accordingly,
common pleas affirmed.
Objectors appealed, and common pleas directed them to file a Concise
Statement of Errors Complained of on Appeal (Statement) pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). Objectors
did so, raising nine issues for common pleas’ review. Common pleas held that
these issues were addressed in its May 29, 2018 Opinion. Common pleas also
explained, however, that one of the errors asserted in the Statement, that the
Authority did not meet the requirements for obtaining a variance, was too vague
because it did not identify which requirement was not satisfied. (1925(a) Op. at 5.)
Thus, common pleas found the issue waived. (Id.) Objectors’ appeal is now ready
for disposition by this Court.
II. Appeal to this Court
A. Whether the Board Erred by Finding that a Special Exception or
Conditional Use Permit was not Required.
i. The Parties’ Arguments
Objectors first challenge the Board’s and common pleas’ characterization of
the Authority’s current and proposed use of the Property.8 Objectors argue the
Board found the Authority’s current and proposed use of the Property was a
“municipal authority use,” which is not a use defined by the Ordinance.
(Objectors’ Brief (Br.) at 20.) They assert that neither the current use of the
8
Objectors set forth their arguments in three separate sections in their brief, which we
have consolidated.
10
Property, nor the proposed plan, constitute a “minor public utility facility,” which
is a permitted use in the SA district, but is a “public use,” which is not a permitted
use in the SA district.9 (Id. at 21-22.) Therefore, Objectors contend, the Board
erred in concluding the Authority’s current use and proposed use are permitted
uses in the SA district.
The Authority responds that the Board’s reference to “municipal authority
use” was merely a characterization of the type of use taking place on the Property
and was not intended to legally define that use in accordance with the Ordinance.
(Authority’s Br. at 20.) According to the Authority, the Board made no finding or
legal conclusion regarding the Authority’s use, nor could it, because the Authority
withdrew its request for a special exception and, therefore, the only relief requested
was the grant of a dimensional variance. Because the dimensional variance did not
require the Board to make any determination regarding the Authority’s use of the
Property, the Board did not address that issue, rendering that issue, the Authority
asserts, not properly before this Court.
ii. Discussion
Objectors’ arguments are, in effect, that a special exception or conditional
use permit was necessary here. However, we have held that a zoning hearing
9
The Ordinance defines “minor public utility facility” as “an enclosed facility designed
to provide limited utility services to the local community or part thereof and is operated by a
local municipality, a municipal authority organized by such municipality, a public corporation or
association, or an entity subject to the jurisdiction of the Pennsylvania Public Utility
Commission.” (Section 240-201 of the Ordinance.) “This definition includes . . . water and
sewage pumping stations.” (Id.) A “public use” is defined as “any building, structure, facility,
complex or area used by the general public or which provides a service to the public, whether
constructed by a state, county, federal, municipal or governmental agency or authority other than
that of Kennett Township.” (Id.)
11
board’s jurisdiction to issue determinations is limited to the relief requested by an
applicant in an appeal from a zoning officer’s determination granting or denying a
permit or a request for a variance or special exception. Joe Darrah, Inc. v. Zoning
Hearing Bd. of Spring Garden Twp., 928 A.2d 443, 446-47 (Pa. Cmwlth. 2007)
(without a request for specific relief, a zoning hearing board lacks the authority to
interpret an ordinance and any such interpretation would be an impermissible
advisory opinion). A zoning hearing board cannot render advisory opinions
regarding the interpretation of an ordinance or legality of a use, and a zoning
hearing board’s discussion of issues not properly before it are nonprecedential
dicta. In re Chester Cty. Outdoor, LLC, 64 A.3d 1148, 1151-52 (Pa. Cmwlth.
2013).
Here, the Authority initially requested both a dimensional variance and a
special exception. However, at the hearing, evidence was presented regarding the
prior approvals of the Authority’s initial special exception for a pumping station in
1975 and the expansion of that use in 1989, both of which preceded the addition of
the definition of “minor public facility use.” (R.R. at 48a-49a.) Based on that
evidence, and the Zoning Officer’s statement that no special exception was needed,
the Authority withdrew its special exception request on its understanding that its
ongoing use of the Property, along with its proposed use, were protected under
those prior approvals. (Id. at 50a.) The Authority’s withdrawal of its special
exception request removed the issue of whether the Authority’s use of the Property
was permissible from the Board’s consideration. Joe Darrah, Inc., 928 A.2d at
446-47. Therefore, any discussion by the Board related to whether a special
exception would have been required, granted, or denied would have been dicta and
not precedential. In re Chester Cty. Outdoor, LLC, 64 A.3d at 1151-52. As that
12
issue was not before the Board, it is likewise not properly before this Court for
resolution at this time.
B. Whether the Board Applied the Wrong Legal Standard for a
Dimensional Variance.
i. The Parties’ Arguments
Objectors next argue the Board erred in applying the “much less stringent”
“hybrid standard” set forth in Pohlig Builders when it reviewed the Authority’s
dimensional variance request. (Objectors’ Br. at 10.) Pohlig Builders did not
involve a dimensional variance and, therefore, Objectors assert, using the standard
described therein to analyze the Authority’s dimensional variance was erroneous.
The Authority replies that Objectors’ emphasis on the label the Board gave to the
Authority’s variance request does not alter the fact that the Authority met its
burden of proof under the relaxed standard set forth in Hertzberg.
ii. Discussion
Here, the Board indicated that the variance requested was a hybrid variance
governed by the unnecessary hardship standard described in Pohlig Builders.
(Board Decision at 8.) Pohlig Builders involved a variance request from the
constraints imposed on the development on steep slopes, which has been held to be
neither a use nor a dimensional variance. 25 A.3d at 1267. This scenario, we held,
fell into a gray area, and, therefore, required a “hybrid” analysis that included
applying a less stringent hardship requirement. Id. While Objectors describe the
standard set forth in Pohlig Builders as being a “hybrid standard,” this Court
explained in that case that the hardship standard applied in that case was “the
relaxed Hertzberg standard.” Pohlig Builders, 25 A.3d at 1269. In other words,
what was “hybrid” in Pohlig Builders was not the standard applied, but the type
13
of variance requested due to the nature of steep slope requirements. It is not
disputed that “the relaxed Hertzberg standard,” id., is applicable to dimensional
variance requests or that this standard requires a lesser quantum of proof to
establish unnecessary hardship, Hertzberg, 721 A.2d at 48, 50. Accordingly, while
the Board called the variance requested from the Ordinance’s lot coverage
provisions here a “hybrid variance” where it is really a dimensional variance,
Segal, 771 A.2d at 94, that label is of no moment because both types of variances
are analyzed using the more relaxed standard set forth in Hertzberg.
Hertzberg, 721 A.2d at 50; Pohlig Builders, 25 A.3d at 1269.
C. Whether the Board Erred or Abused its Discretion in Granting the
Variance.
i. The Parties’ Arguments
Finally, Objectors argue the Board erred in finding that the Authority had
met all of the requirements for obtaining a dimensional variance, including that it
would suffer unnecessary hardship if the variance was denied. In response to
common pleas’ conclusion that Objectors’ challenge to the non-hardship
requirements was waived, Objectors contend the issue was the same issue they
raised in their appeal and was fully addressed by common pleas in its May 29,
2018 Opinion. Thus, no waiver has occurred. On the merits, Objectors argue the
Ordinance’s requirements for granting a variance were not met because there is no
evidence that: there were any unique or irregular conditions on the Property; the
Property could not be developed in conformity with the 20-percent lot coverage
restriction; or the Authority would suffer hardship if its variance was denied.
According to Objectors, the Board made no findings that the Property had any
physical constraints or that the Property could not be reasonably used in the
absence of the variance. Objectors contend the Board’s reliance on the public’s
14
interest or the public health, safety, and welfare to justify granting the variance is
contrary to the holding in East Caln, which rejected the argument that public
interest alone is sufficient to grant a variance. They further argue the Board’s
finding of unnecessary hardship is insufficient, and the Authority’s desire to
maximize the development and use of the Property does not constitute unnecessary
hardship, even under the relaxed Hertzberg standard.
The Authority argues Objectors have waived their challenge to the non-
hardship requirements for a dimensional variance due to the vagueness of their
Statement. Notwithstanding that waiver, the Authority argues the Board’s
conclusion that it met the Ordinance’s requirements for obtaining a dimensional
variance is supported by substantial evidence, particularly where dimensional
variances are “of lesser moment than the grant of a use variance” and require a
lesser quantum of proof to establish unnecessary hardship, Hertzberg, 721 A.2d at
50. The Authority maintains it established it will experience unnecessary hardship
if the dimensional variance is denied and its proposed plan is not motivated by a
desire for financial gain, but by its duty to provide public water services. Citing
Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791 (Pa. Cmwlth. 1996),
the Authority contends the salutary purpose of its proposed plan, which would
benefit the public good, justified the Board’s less stringent application of the
Ordinance’s variance requirements. However, the Board did not, the Authority
asserts, rely solely on the public benefit of the proposed plan to find unnecessary
hardship, but also examined the characteristics of the neighborhood, which is a
valid consideration under Hertzberg. When this factor is considered, the Authority
argues, the Board’s conclusion is supported by the disparity in the lot coverage
requirements on the Authority and the lot coverage limitation on the neighboring
15
mushroom farms. It is the 20-percent lot coverage limitation, which was imposed
after the Authority began its operations on the Property, that hinders the
Authority’s ability to improve its preexisting use of the Property. Finally, at oral
argument before this Court, the Authority observed that the requested deviation
from the 20-percent lot coverage requirement was de minimis in nature.
ii. General Legal Principles for Reviewing a Zoning Appeal
There are certain general legal principles involved in reviewing a zoning
appeal. First, here, because common pleas did not take any evidence, we review
the decision of the Board, not that of common pleas. Bd. of Supervisors of Upper
Southampton Twp. v. Zoning Hearing Bd. of Upper Southampton Twp., 555 A.2d
256, 258 (Pa. Cmwlth. 1989). Second, a zoning hearing board abuses its discretion
if its findings of fact are not supported by substantial evidence, which is such
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion. POA Co. v. Findlay Twp. Zoning Hearing Bd., 713 A.2d 70, 75 (Pa.
1998). Third, “[t]he role of the zoning hearing board is that of fact-finder. A
reviewing court may not substitute its judgment for that of the zoning hearing
board; rather, the court is bound by the zoning hearing board’s determinations of
witness credibility and evidentiary weight.” In re Rural Route Neighbors, 960
A.2d 856, 860 (Pa. Cmwlth. 2008) (citation omitted).
iii. Ordinance’s Variance Provisions
Section 240-2306.C of the Ordinance addresses the standards for granting
variances and provides:
C. The Zoning Hearing Board may grant a variance to a provision of
this chapter provided the following standards are satisfied where
relevant in a given case:
16
(1) Unique or irregular conditions. Where unique physical
circumstances or conditions exist, including irregularity,
narrowness or shallowness of lot size or shape, or exceptional
topographic conditions peculiar to the particular property. The
hardship must be created by such conditions and not the
circumstances or conditions generally created by the provisions
of this chapter in the district in which the property is located.
(2) Strict conformity cannot occur. Because of the physical
circumstances or conditions described in § 240-2306[.]C(1), there
is no possibility that the property can be developed in strict
conformity with the applicable provisions of this chapter and that
the authorization of a variance is therefore necessary to enable
the reasonable use of the property.
(3) Liability of the applicant. Where such unnecessary hardship
described in § 240-2306[.]C(1) has not been created by the
applicant subsequent to the adoption of this chapter or prior
ordinance and that strict application of the provisions of this
chapter would deprive the applicant of the reasonable use of the
land, structure or building.
(4) Effect of the variance on the district. Where the variance, if
authorized, will not alter the essential character of the zoning
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) Minimum variance. Where the variance, if authorized, will
represent the minimum variance that will afford relief and will
represent the least modification possible of the regulation at
issue.
(Section 240-2306.C of the Ordinance (emphasis added).)10 Section 240-2306.D
states that “[f]inancial gain shall not be a basis for granting a variance.” (Section
240-2306.D of the Ordinance.) Objectors argue the Authority did not meet these
10
The Ordinance’s requirements track those found in Section 910.2 of the MPC, which
was added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
17
requirements and the Board did not address all of these requirements in its
Decision. The Authority argues Objectors waived any challenge to the non-
hardship requirements and that, on the preserved challenge, it met its burden of
establishing the requisite hardship to obtain the dimensional variance.
iv. Whether Objectors Waived Their Challenge to the Non-Hardship
Requirements of the Ordinance.
Common pleas found that Objectors waived their challenge to whether the
non-hardship requirements were met because their Statement did not specify which
of the Ordinance’s requirements were unmet. Thus, it found their Statement was
too vague to allow review. (1925(a) Op. at 5.) The issue in question, as stated by
Objectors in their Statement was whether common pleas “committed an error of
law and/or abused its discretion in affirming the Board by concluding that [the
Authority] had satisfied all of the requirements necessary for the grant of a
variance.” (Statement ¶ 2(d).)
Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii), (vii) requires that
an appellant’s “Statement shall concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues
for the judge” and provides that “[i]ssues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P. 1925(b)(4)(ii), (vii). Rule 1925(b) is intended to aid the trial court in
identifying and focusing only on those issues that the parties plan to raise on
appeal. Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998). Therefore, a
1925(b) Statement must contain a sufficiently concise and coherent statement of
issues to enable common pleas to identify the issues to be raised on appeal. Jiricko
18
v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. 2008).11 A 1925(b) Statement that
is too vague to allow the court to identify the issues to be raised on appeal is the
functional equivalent of no statement at all. Commonwealth v. McCandless, 880
A.2d 1262, 1269 (Pa. Super. 2005).
Objectors’ Statement does not specify which of Section 204-2306.C’s
variance requirements were unsatisfied, other than the unnecessary hardship
requirement. Thus, it could be said that the Statement did not satisfy Rule
1925(b)’s specificity requirements. However, Rule 1925(b)(4)(v) also provides
that “[e]ach error identified in the Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court . . . .”
Pa.R.A.P. 1925(b)(4)(v). A review of Objectors’ arguments to common pleas
reflects that they raised a similarly broad challenge to whether the Authority
satisfied all of the requirements of the Ordinance for obtaining a variance at that
time. (May 29, 2018 Op. at 4.) Common pleas addressed each Ordinance
requirement in its May 29, 2018 Opinion, concluding the Board did not err in
granting the variance. (Id. at 5-8.) Thus, the error now claimed to be vague was
raised before and addressed by common pleas in its May 29, 2018 Opinion and,
therefore, is not waived for lack of specificity. Pa.R.A.P. 1925(b)(4)(v).
v. Whether a Variance from the Lot Coverage Requirement was
Properly Granted.
Although we have set forth Objectors’ arguments regarding the deficiencies
in the Board’s decision and in the Authority’s evidence, we need not address them
because, even if those arguments were to have merit, it is well settled that appellate
11
Although not binding, we may consider decisions of the Superior Court for their
persuasive value. Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa.
Cmwlth. 2018).
19
courts review judgments, not reasons. Thus, “this Court may affirm for any reason
and is not limited to grounds raised by the parties.” McAdoo Borough v. Pa. Labor
Relations Bd., 485 A.2d 761, 764 n.5 (Pa. 1984); see also Mun. Auth. of Borough
of W. View v. Pa. Pub. Util. Comm’n, 41 A.3d 929, 934 n.7 (Pa. Cmwlth. 2012)
(same) (citing McAdoo, 485 A.2d at 764 n.5). Where a “ruling, order, decision,
judgment or decree” is correct, “but . . . an erroneous reason” is given, “an
[a]ppellate [c]ourt will affirm the action . . . below and assign the proper reason
therefore.” Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974); see also
Epting v. Marion Twp. Zoning Bd., 532 A.2d 537, 543 (Pa. Cmwlth. 1987) (citing
Bearoff, 327 A.2d at 76). This legal doctrine is sometimes referred to as the “right
for any reason doctrine.” In re A.J.R.-H., 188 A.3d 1157, 1176 (Pa. 2018).12 This
doctrine is “applicable to judicial review of agency determinations.” Epting, 532
A.2d at 543. The right for any reason doctrine is appropriate only “where the
correct basis of the ruling, order, decision, judgment or decree is clear upon the
record.” In re A.J.R.-H., 188 A.3d at 1176 (quoting Bearoff, 327 A.2d at 76).
Where there are disputed facts, “appellate courts should refrain from assuming the
role of fact-finder in an attempt to sustain the action . . . below.” Id. “It may not
be used to affirm a decision when the appellate court must weigh evidence and
engage in fact finding or make credibility determinations to reach a legal
conclusion.” Id.
12
While it appears the question of whether our Supreme Court has the ability to apply
this doctrine in discretionary appeals is “unsettled,” the doctrine’s use by the intermediate
appellate courts is settled. Justice Thomas G. Saylor, Right for Any Reason: An Unsettled
Doctrine at the Supreme Court Level and an Anecdotal Experience With Former Chief Justice
Cappy, 47 DUQ. L. REV. 489, 492 (2009).
20
For the reasons that follow, we conclude the Board was correct in granting a
variance allowing the Authority to exceed the 20-percent lot coverage requirement
by 6.43 percent. However, we do so on the basis that this deviation is de minimis
in nature, as put forth by the Authority at oral argument, and the Board made the
findings of fact necessary to support this determination.
In the zoning context, the de minimis13 “doctrine authorizes a variance in the
absence of a showing of the unnecessary hardship traditionally required to support
such relief where the violation is insignificant and the public interest is
protected by alternate means.” Nettleton v. Zoning Bd. of Adjustment of the City
of Pittsburgh, 828 A.2d 1033, 1038 (Pa. 2003) (emphasis added). “A de minimis
variance may be granted, even where the strict requirements for a variance have
not been met, where the variation requested is minor and rigid compliance is not
necessary to protect the public policy concerns of the ordinance.” Lench v. Zoning
Bd. of Adjustment of the City of Pittsburgh, 13 A.3d 576, 581 (Pa. Cmwlth. 2011).
The burden on the “applicant is at its lightest where the request involves a de
minimis variance with respect to a dimensional variance . . . .” Id. at 582. “There
are no set criteria for determining what constitutes a de minimis variance; this
determination depends upon the circumstances of each case.” Id. Courts have
found that a dimensional change of less than 10 percent can be de minimis. Id. For
example, a 5.82 percent deviation from a height restriction, id., and the addition of
square footage to a building resulting in a 6.76 percent deviation from the
maximum building lot coverage, Township of Middletown v. Zoning Hearing
13
“‘De minimis non curat lex’ is the legal maxim meaning that the law does not care for
small or trifling matters.” Nettleton v. Zoning Bd. of Adjustment of the City of Pittsburgh, 828
A.2d 1033, 1038 n.5 (Pa. 2003).
21
Board of Middletown Township, 682 A.2d 900, 901-02 (Pa. Cmwlth. 1996), were
determined to be de minimis. See also Pyzdrowski v. Bd. of Adjustment of the City
of Pittsburgh, 263 A.2d 426 (Pa. 1970) (7 percent deviation from side yard setback
was de minimis); Laskowski v. W. Chester Borough Zoning Hearing Bd. (Pa.
Cmwlth., No. 1902 C.D. 2012, filed July 11, 2013), slip op. at 5-6 (10 percent
deviation from maximum building height requirement was de minimis);14 Appeal of
Ressler Mill Found., 573 A.2d 675 (Pa. Cmwlth. 1990) (7 percent deviation from
lot width requirement was de minimis). While the size of the proposed deviation is
a consideration, whether rigid compliance with an ordinance’s requirements “is
necessary to preserve the public interests sought to be protected by the ordinance”
is also important. Township of Middletown, 682 A.2d at 902. The imposition of
conditions on a de minimis variance is a valid means of addressing the impact of
granting the variance. Id. “Where the de minimis doctrine applies, there is no need
to resort to any other theory of relief.” Pequea Township v. Zoning Hearing Bd. of
Pequea Twp., 180 A.3d 500, 504 (Pa. Cmwlth. 2018).
In the Authority’s application, it characterized the proposed lot coverage of
26.43 percent as “slightly exceed[ing] the maximum lot coverage permitted in the
SA . . . [d]istrict.” (R.R. at 7a (emphasis added).) At oral argument, the Authority
argued this deviation was really de minimis in nature. After reviewing the
evidence, the Board found the 6.43 percent deviation was “an insignificant
addition of impervious coverage,” particularly given the 70-percent lot coverage
authorized for other uses in the SA district. (Board Decision at 8 (emphasis
added).) The Board further found that “granting the variance will not[:] affect the
14
Laskowski, an unreported opinion of this Court, is cited for its persuasive authority in
accordance with Section 414(a) of our Internal Operating Procedures, 210 Pa. Code § 69.414(a).
22
surrounding community[,] which is mostly agricultural and occupied by
mushroom houses,” (Board Decision at 9); “alter the essential character of the
zoning district in which the Property is located”; or “substantially or
permanently impair the appropriate use or development of [the] adjacent
nonresidential property or the residential property,” as “long as there is a
sufficient landscape buffer installed adjacent to the residential property,” (FOF ¶¶
40-41 (emphasis added)). The Board further found that approving the variance
would “not be detrimental to the public welfare.” (Id. ¶ 42 (emphasis added).)
Last, and importantly, the Board imposed conditions on its approval of the
variance to address concerns that were raised during the hearing. (Board Decision
at 9-10.) Through these findings and imposition of conditions, the Board
essentially determined that “the violation [was] insignificant,” that “the public
interest [was] protected by alternative means,” Nettleton, 828 A.2d at 1038, and
that “rigid compliance [wa]s not necessary to protect the public policy concerns,”
Lench, 13 A.3d at 581. These findings are those, as required by Section 240-
2306.C of the Ordinance, that are relevant to and needed for granting a de minimis
variance, and, therefore, it is clear from the record that the grant of the variance to
the Authority on this basis is warranted. Therefore, we affirm the grant of the
variance from the Ordinance’s 20-percent lot coverage requirement on this
alternative basis.
23
III. Conclusion
Because it is clear from the record and the Board’s finding that the grant of
the variance from the Ordinance’s lot coverage requirements was correct, we
affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Stat and Randall F. Bishop, :
Appellants :
:
v. : No. 888 C.D. 2018
:
Kennett Township Zoning Hearing :
Board :
ORDER
NOW, November 7, 2019, the Order of the Court of Common Pleas of
Chester County is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge