East Rockhill Twp. v. East Rockhill Twp. ZHB & J. Burkey ~ Appeal of: J. Burkey

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
East Rockhill Township :
:
v. : No. 687 C.D. 2018
: Argued: March 12, 2019
East Rockhill Township :
Zoning Hearing Board :
and James Burkey :
:
Appeal of: James Burkey :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 9, 2019
James Burkey (Landowner) appeals from an order of the Court of
Common Pleas of Bucks County (trial court) that reversed in part and affirmed in
part the decision of the East Rockhill Township Zoning Hearing Board (Board).
Specifically, the trial court reversed the Board’s decision granting Landowner
variance relief to allow an “H5 Contracting Use” on his property for his landscaping
and excavating business in addition to a residential use. The trial court affirmed the
Board’s decision to the extent it denied Landowner’s request to recognize his
business activities as an “Accessory Home Occupation”; denied his request for
dimensional variance relief from a business vehicle restriction; and found that
Landowner violated various provisions of the East Rockhill Township Zoning
Ordinance (Ordinance).1
1
The Ordinance was enacted May 26, 1987.
In this appeal, Landowner contends that the Board abused its discretion
and erred by determining that Landowner’s landscaping and excavating business did
not constitute an “Accessory Home Occupation” and by denying a dimensional
variance for additional business vehicles in conjunction thereto. Alternatively,
Landowner contends that the trial court erred in reversing the Board’s decision to
grant a use variance to allow an H5 Contracting Use on his property. Discerning no
error, we affirm.
I. Background
Landowner owns 18.02 acres located in East Rockhill Township
(Township), Bucks County (Property). The Property is located in the RP Resource
Protection District (RP District). Landowner resides at the Property and operates a
landscaping and excavating business from there.
In November 2016, the Township issued Landowner a notice of
violation asserting that Landowner violated the Ordinance by operating an H5
Contracting Use, which is not permitted in the RP District; having more than one
principal use on the Property; and failing to obtain requisite zoning permits for the
contracting use. Landowner appealed the notice of violation to the Board. Along
with the appeal, Landowner submitted an application (Application) requesting an
interpretation of the Ordinance to classify his business as an Accessory Home
Occupation. In conjunction therewith, he requested a variance from Section 27-
304(B10)(b)(6)(a) of the Ordinance to permit more than one business vehicle with
loading capacities exceeding 3/4 ton at the Property (vehicle variance). In the
alternative, Landowner requested variances from Sections 27-400 and 27-401 of the
Ordinance to permit an H5 Contracting Use in the RP District and from Section 27-
300 of the Ordinance to allow multiple principal uses on a single lot.
2
The Board held two public hearings.2 Based on the evidence presented,
the Board found that the Property is improved with a 3,412-square-foot, two-story,
single-family detached dwelling, a 3,000-square-foot pole barn, a pond, an in-ground
swimming pool and a shed. The Property is densely wooded, except for the area
where the improvements exists. The Property is irregular in shape. A stream
traverses the Property. Board Decision, 2/28/17, Findings of Fact (F.F.) Nos. 19-21.
Landowner purchased the Property in May 2016. Landowner resides
in the dwelling and operates a landscaping and excavating business from the
Property. Landowner uses the pole barn and surrounding outdoor area to store
equipment and park vehicles related to his business. Based upon the prior owner’s
use of the Property for a candle-making business and all-terrain vehicle track,
Landowner was under the impression that he could operate his business from the
Property without further permits or approvals from the Township. F.F. Nos. 22-23,
25-26.
The Board further found that Landowner does not perform any
landscaping or excavating work onsite beyond administrative work in the 400-
square-foot office space located within his dwelling. All landscaping and excavating
work is performed off-site at specific job sites. However, Landowner does use the
Property to store equipment and park vehicles related to his business, to wit: three
tri-axle dump trucks; three pick-up trucks; two small dump trucks; one backhoe; one
small excavator; and four trailers. Landowner also stores road salt used in his
business for snow removal. The existing pole barn is not large enough to store all
the vehicles, equipment and materials associated with the business. Consequently,
Landowner parks or stores some of the vehicles, equipment and salt outside, in an
2
Neighboring property owners appeared in opposition to the Application and were granted
party status.
3
area adjacent to the pole barn. Pursuant to his business operations, every weekday
morning, three of Landowner’s four employees drive to the Property in their
personal vehicles, park their vehicles at the Property, and then leave the Property
with any necessary equipment and vehicles required to complete tasks at various job
sites. The employees arrive at the Property around 6:00 a.m. and usually return
between 2:00 p.m. and 4:00 p.m. F.F. Nos. 26-31, 34.
The Board concluded that Landowner violated Ordinance Sections 27-
400 (operating an H5 Contracting Use in the RP District), 27-300 (operating a
second principal use), and 27-2202 (failing to obtain a permit). The Board also
concluded that Landowner’s business was not an Accessory Home Occupation
pursuant to Section 27-304(B10) of the Ordinance because the business is not
subordinate to the residential use on the Property. The Board explained that the large
number of commercial vehicles, number of employees, the hours of operation, and
other characteristics of the use are not customary to a Home Occupation.
Landowner’s business is not being carried on wholly indoors, as commercial
vehicles, equipment, and materials associated with the business are parked or stored
outside.
However, the Board determined that Landowner established
entitlement to a variance to allow an H5 Contracting Use and more than one principal
use on the Property. The Board concluded that “the Property’s highly irregular
shape, intermittent stream traversing the Property, the vast amount of woodlands,
and the overall size of the Property establish a hardship . . . .” Board Decision,
Conclusion of Law No. 10. Further, the Board concluded that an H5 Contracting
Use will not alter the character of the neighborhood or be detrimental to the public
welfare; the conditions and circumstances of the Property are not of Landowner’s
4
doing; and the approved variances represent the minimum variances that will afford
relief. Board Decision, Conclusions of Law Nos. 11-16.
Thus, the Board granted Landowner’s Application for variances from
Sections 27-400 and 27-401 of the Ordinance to permit an H5 Contracting Use in
the RP District and from Section 27-300 of the Ordinance to permit multiple
principal uses on a single lot, subject to 19 conditions. The Board denied
Landowner’s request to classify the business use as an Accessory Home Occupation
and, in conjunction therewith, the Board denied the vehicle variance.
From this decision, the Township filed a land use appeal with the trial
court on the basis that the Board abused its discretion in granting the requested
variances to permit an H5 Contracting Use on the Property. Landowner intervened
in the Township’s appeal and filed a cross-appeal seeking relief from the Board’s
decision to the extent it determined that Landowner violated the Ordinance, that his
business was not an Accessory Home Occupation, and that he was not entitled to a
vehicle variance.
The trial court did not take additional evidence. With regard to the
Township’s appeal, the trial court agreed with the Township that the Board erred in
granting the variances because Landowner failed to show unnecessary hardship. The
trial court explained that the physical conditions do not prevent the Property from
being used as a residence or for any permitted purpose within the RP District nor do
they prevent Landowner from using his Property without prohibitive expense.
As for Landowner’s cross-appeal, the trial court concluded that the
Board did not err in determining that Landowner violated the Ordinance by operating
an H5 Contracting Use, having two principal uses on the Property, and failing to
obtain the required permit. The trial court also concluded that the Board did not err
5
in determining that Landowner’s business does not meet the definition or standards
for an Accessory Home Occupation. Having determined that Landowner’s business
activities did not constitute an Accessory Home Occupation, the trial court also
determined that Landowner was not entitled to the vehicle variance. Thus, by order
dated April 20, 2018, the trial court reversed the Board’s decision insofar as it
granted variance relief to allow the H5 Contracting Use and two principal uses on
the Property and affirmed its decision in all other respects. From this decision,
Landowner appealed to this Court.3
II. Issues
In this appeal,4 Landowner contends that the Board erred or abused its
discretion by determining that Landowner’s use of his Property as a base of
operations for his landscaping and excavating business did not constitute an
Accessory Home Occupation under the Ordinance. In connection therewith,
Landowner asserts that the Board erred or abused its discretion when it denied his
request for a dimensional variance to permit more than one business vehicle with
loading capacity exceeding 3/4 ton at his Property. Alternatively, Landowner
contends that the trial court abused its discretion and erred by reversing the Board’s
3
The Board filed a notice of nonparticipation. None of the residents who sought and were
granted party status before the Board appealed the Board’s decision or intervened in the
Township’s appeal.
4
Where, as here, the trial court did not take any additional evidence, our review 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 Philadelphia, 97 A.3d 323, 331 (Pa. 2014). An abuse
of discretion occurs when findings of fact are not supported by substantial evidence, which is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Township of Northampton v. Zoning Hearing Board Northampton Township, 969 A.2d 24, 27 n.1
(Pa. Cmwlth. 2009).
6
determination that Landowner was entitled to a use variance to allow an H5
Contracting Use and a variance to allow more than one principal use on his Property.
III. Discussion
A. Accessory Home Occupation
First, Landowner contends that the Board abused its discretion and
erred by determining that the use of his Property as a base of operations for his
landscaping and excavating business did not constitute an Accessory Home
Occupation under the Ordinance. According to Landowner, he proved by substantial
evidence that his business meets the definition of and satisfied the criteria for an
Accessory Home Occupation as a “Trade, Business” under the Ordinance. As for
the criteria, Landowner maintains that, once a second pole barn is erected on the
Property, all vehicles, equipment and materials related to the business will be stored
wholly indoors. Pole barns are common residential accessory structures for
properties used for agricultural purposes, which is a permitted use in the RP District,
and thus normally associated with residential use within the district. Further, the
actual business use of the Property occurs only a few hours a day when employees
pick up and drop off vehicles and equipment. The only portion of the residence
actually used for business activity is a 400-square-foot office space on the first floor,
which constitutes less than 25% of the ground floor area of the residence.
“Whether a proposed use, as factually described in the application and
the testimony, falls within a given categorization contained in the zoning regulations
is a question of law, on which the zoning board’s determination is subject to review.”
Diversified Health Associated, Inc. v. Zoning Hearing Board of Borough of
Norristown, 781 A.2d 244, 247 (Pa. Cmwlth. 2001) (quoting Manor Healthcare
Corporation v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 65, 68
7
(Pa. Cmwlth. 1991)). The general rules of statutory construction apply to the
interpretation of zoning ordinances. Delchester Developers, L.P. v. Zoning Hearing
Board of London Grove Township, 161 A.3d 1081, 1103 (Pa. Cmwlth. 2017).
Undefined words and phrases used in a zoning ordinance shall be construed
according to their common and approved usage. Id. at 1103-04; see Section 1903(a)
of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S.
§1903(a). However, “enactment of a specific definition in the ordinance produces a
different effect because the legislative body may furnish its own definitions of words
or phrases in order to guide and direct judicial determinations . . . and such
definition may be different from ordinary usage.” Diversified Health, 781 A.2d at
247. “‘[A]ny doubt must be resolved in favor of the landowner and the least
restrictive use of the land.’” Id. (quoting Kissell v. Ferguson Township Zoning
Hearing Board, 729 A.2d 194, 197 (Pa. Cmwlth. 1999)). Furthermore, a zoning
ordinance shall be construed, if possible, to give effect to all of its provisions.
Delchester, 161 A.3d at 1104; see Section 1921 of the Statutory Construction Act,
1 Pa. C.S. §1921. Finally, a zoning hearing board’s interpretation of its own zoning
ordinance is entitled to great weight and deference from a reviewing court. SPTR,
Inc. v. City of Philadelphia, 150 A.3d 160, 172 n.3 (Pa. Cmwlth. 2016).
Section 27-224 of the Ordinance defines “Home Occupation,” with
emphasis added, as:
An activity for gain customarily carried on in a dwelling,
or in a building or structure accessory to a dwelling,
clearly incidental and secondary to the use of the dwelling
for residential purposes.
8
Section 27-304(B10) of the Ordinance provides that “[a]n Accessory Home
Occupation is an accessory use that shall be clearly subordinate to the existing
residential use of the property.” Section 27-254 of the Ordinance defines an
accessory use as “[a] use located on the same lot with a principal use and clearly
incidental or subordinate to, and in connection with, the principal use.” In addition,
Section 27-207(b) of the Ordinance defines an accessory building as a “subordinate
building located on the same lot as a principal building and clearly incidental and
subordinate to the principal building.”
An Accessory Home Occupation must also meet the following general
standards:
(1) A Home Occupation must be conducted within a
dwelling which is the bona fide residence of the principal
practitioner or in an accessory building thereto which is
normally associated with a residential use. The Home
Occupation shall be carried on wholly indoors.
(2) The maximum amount of floor area devoted to this
Home Occupation shall not be more than 25% of the
ground floor area of the principal residential structure of
400 square feet, whichever is less. At least 850 square feet
of the total floor area must remain in residential use.
(3) In no way shall the appearance of the residential
structure be altered or the occupation within the residences
be conducted in a manner which would cause the premises
to differ from its residential character by the use of colors,
materials, construction, lighting, show windows or
advertising visible outside the premises to attract
customers or clients other than those signs permitted by
this chapter.
(4) One sign is permitted per Home Occupation providing
that it is no larger than three square feet per side bearing
only the name, occupation and office hours of the
9
practitioner. In addition, it shall not be illuminated or
placed in a window.
(5) All commercial vehicles shall be parked onlot and must
be parked in a garage or an enclosed structure.
(6) Off-street parking spaces are not permitted in the front
yards. A ten foot driveway providing access to parking
areas in the side or rear of the property may be located in
the front yard. All off-street parking areas must be located
at least 10 feet from any property line. Off-street parking
lots with three or more spaces shall be buffered from
abutting residences. Hedge material as specified in § 27-
1905 shall be placed on three foot centers. Alternately, a
four to five-foot fence may be erected which provides a
visual screen.
(7) There shall be no exterior storage of materials or
refuse resulting from the operation of the Home
Occupation.
(8) No equipment or process shall be used in a Home
Occupation which creates noise, vibration, glare, fumes,
odors, dust or electrical interference detectable to the
normal senses off the lot. No equipment or process shall
be used which creates visible or audible interferences in
any radio or television receivers off the premises.
(9) Home occupations shall not include the following
animal hospitals, commercial stables and kennels, funeral
parlors or undertaking establishments, antique shops,
tourist homes, restaurants and rooming -boarding -lodging
houses.
(10) A zoning permit shall be required for all Accessory
Home Occupations.
Section 27-304(B10)(a)(1)-(10) of the Ordinance (emphasis added).
In addition, an Accessory Home Occupation must meet specific
standards related to the occupation. Section 27-304(B10)(b) of the Ordinance. Of
10
relevance here, Section 27-304(B10)(b)(6) of the Ordinance sets the specific
standards for “Trades, Business,” which it defines as:
The use of a residence as a base of operation for the
business, but not including the conduct of any phase of the
trade on the property. Trades included in this Home
Occupation include, but are not limited to: electrician,
plumber, carpenter, mason, painter, roofer and similar
occupations.
The specific standards that apply to “Trades, Business” are:
(a) No more than one business vehicle may be parked on
the property including noncommercial trucks and vans
with loading capacities not exceeding 3/4 ton. The
business vehicle shall be parked in an enclosed structure.
(b) The area of the office, storage of materials and
equipment (excluding vehicles) shall not exceed the
limitations of subsection (a)(2) above.
(c) No assembling, manufacturing, processing or sales
shall be conducted on the property.
(d) The buffer requirements of § 27-1905 of this chapter
shall be met.
(e) In addition to the off-street parking spaces required in
this chapter for the particular residential use concerned, a
trades business shall provide one off-street space for each
employee . . . and one off-street parking space for each
business vehicle. A maximum of six off-street parking
spaces are permitted on one lot inclusive of the required
residential parking.
Section 27-304(B10)(b)(6)(a)-(e) of the Ordinance (emphasis added).
Here, although Landowner meets some of the criteria for an Accessory
Home Occupation, he did not meet them all. First, Landowner does not conduct his
business entirely within the confines of the dwelling or operate his business wholly
11
indoors. See Section 27-304(B10)(a)(1) of the Ordinance. While Landowner
operates the administrative end of his business in his dwelling, other operations are
conducted outdoors on the Property. Although landscaping and excavating work
itself is performed offsite on various jobsites, the nature of Landowner’s business
requires daily loading and unloading of trucks headed to and from the job sites, the
storage of vehicles, equipment and materials, and the cleaning of equipment, all of
which occurs outside on the Property. Reproduced Record (R.R.) at 108, 112. See
Agnew v. Bushkill Township Zoning Hearing Board, 837 A.2d 634, 638 (Pa.
Cmwlth. 2003) (observing that landowner’s home roofing business was not confined
to administrative work conducted from the confines of the residence, but included
the daily loading and unloading of trucks headed to and from the job sites; regular
delivery and unloading of roofing supplies; and the storage of supplies and
equipment in the outbuildings). Landowner himself testified that not all of his
business vehicles and equipment are stored in the pole barn. R.R. at 108-09, 116.
Some of his trucks, trailers, equipment and materials are stored outside. R.R. at 108-
09, 116.
Landowner seeks to cure this problem with the erection of a second
pole barn. However, the existing pole barn does not meet the Ordinance’s definition
of an accessory building because Landowner uses it primarily for business activities
unrelated to his residential use. See Section 27-207(b) of the Ordinance.
Consequently, the pole barn is not “incidental and subordinate” to the principal
building – Landowner’s dwelling. See id. Landowner argues that his pole barn
should be considered as an accessory building because pole barns, like garages, are
normally associated with residential use in the RP District. He contends that his pole
barn would be considered a permitted accessory structure in conjunction with his
12
residence if his business activity was farming, in which case the building would be
similarly used almost exclusively for farming rather than the residential use.
However, “general farming” is a permitted use in the RP District, and this use
permits multiple buildings (barns, sheds, silos) associated with the farming use as
well as a detached dwelling associated with the unrelated residential use. Sections
27-401(a) and 27-304(A)(A1) of the Ordinance. Landowner’s primary use of the
Property is residential, and he does not use the pole barn in connection with his
residential use. See R.R. at 107-09.
Second, the area of Landowner’s office and storage of materials and
equipment (excluding vehicles) exceeds the 25% ground floor area restriction.
Although the size of Landowner’s 400-square-foot office may meet the standard
criteria in relation to the 3,412-square-foot dwelling, Landowner’s business
operations are not confined to the office. Landowner currently utilizes a 3,000-
square-foot pole barn to store vehicles and equipment for his business activities.
R.R. at 106-08. The storage of supplies and equipment is part of his business. See
Agnew. When the pole barn is factored into the calculation, the total square footage
devoted to the Home Occupation exceeds the 25% limit.
Finally, while we recognize that the business of a landscaper/excavator
is akin to the trades listed as Home Occupations, which includes electricians,
plumbers, carpenters, masons, painters, and roofers, it is the magnitude of
Landowner’s business operations that disqualifies it from a Home Occupation.
Landowner’s business includes several employees, a 400-square-foot office and a
3,000-square-foot pole barn devoted to business-related activities. Landowner seeks
to expand his business footprint by adding a second pole barn. There is daily activity
on the Property of dropping off and picking up work vehicles, loading and unloading
13
of equipment and supplies. Landowner has extended his activities beyond those
customarily carried on by a person operating a trade in connection with his place of
residence. It is the scale of Landowner’s business operations that takes it from a
Home Occupation to more of a commercial contracting use. As currently conducted,
Landowner’s business use is not “clearly incidental and secondary to the use of the
dwelling for residential purposes.” See Sections 27-224 and 27-304(B10) of the
Ordinance.
Upon review, Landowner did not demonstrate that his business satisfied
the criteria for an Accessory Home Occupation as a “Trade, Business” by substantial
evidence. Thus, the Board did not err in denying Landowner’s request to recognize
the business as an Accessory Home Occupation and trial court properly upheld this
determination.
B. Dimensional Variance – Vehicle Variance
Next, Landowner contends that the Board abused its discretion and
erred when it denied his request for a vehicle variance. Specifically, Landowner
sought a dimensional variance from Section 27-304(B10)(b)(6) of the Ordinance to
permit more than one business vehicle on the Property and vehicles exceeding a 3/4
ton loading capacity. Vehicles of this size are permitted by right in connection with
other permitted uses in the RP District, such as intensive agriculture, farming,
forestry and oil and gas drilling. Further, storage of such vehicles goes to the very
nature of the Accessory Home Occupation, which cannot occur absent a variance
from this requirement. Landowner proposes to store all vehicles and equipment
indoors with the erection of the second pole barn. He maintains that his business
will have no detrimental impact upon neighboring properties or the community in
general.
14
A property owner seeking a variance bears a heavy burden. Fowler v.
City of Bethlehem Zoning Hearing Board, 187 A.3d 287, 297 (Pa. Cmwlth. 2018).
The Board may grant a variance when the following criteria are met:
(1) an unnecessary hardship will result if the variance is
denied, due to the unique physical circumstances or
conditions of the property; (2) because of such physical
circumstances or conditions the property cannot be
developed in strict conformity with the provisions of the
zoning ordinance and a variance is necessary to enable the
reasonable use of the property; (3) the hardship is not self-
inflicted; (4) granting the variance will not alter the
essential character of the neighborhood nor be detrimental
to the public welfare; and (5) the variance sought is the
minimum variance that will afford relief.
Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488, 520
(Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014); accord Section 910.2(a) of
the Pennsylvania Municipalities Planning Code (MPC)5; Section 27-2305(c)(1)-(5)
of the Ordinance. “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 v. City of Philadelphia, 97 A.3d 323, 329 (Pa. 2014) (citing Valley View
Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 640 (Pa. 1983)).
A dimensional variance involves a request to adjust zoning regulations
to use the property in a manner consistent with regulations, whereas a use variance
involves a request to use property in a manner that is wholly outside zoning
regulations. Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh,
721 A.2d 43, 47 (Pa. 1998). The same criteria apply to use and dimensional
variances. Id. However, in Hertzberg, our Supreme Court set forth a more relaxed
5
Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, 53 P.S. §10910.2(a).
15
standard for establishing unnecessary hardship for a dimensional variance, as
opposed to a use variance. Id.; Tri-County Landfill, 83 A.3d at 520.
Under Hertzberg, courts may consider multiple factors in determining
whether the applicant established unnecessary hardship for a dimensional variance.
721 A.2d at 48. These factors include the cost of the strict compliance with the
zoning ordinance, the economic hardship that will result from denial of a variance,
and the characteristics and conditions of the surrounding neighborhood. Id. at 49.
Although Hertzberg eased the requirements, it did not remove them.
Tri-County Landfill, 83 A.3d at 520. An applicant must still present evidence as to
each of the conditions listed in the zoning ordinance, including unnecessary
hardship. Id. Where no hardship is shown, or where the asserted hardship amounts
to a landowner’s desire to increase profitability or maximize development potential,
the unnecessary hardship criterion required to obtain a variance is not satisfied even
under the relaxed standard set forth in Hertzberg. Id.
“It is the function of the zoning board to determine whether the
evidence satisfies the criteria for granting a variance.” Marshall, 97 A.3d at 331.
Determinations regarding the credibility of witnesses, the weight of the evidence,
and the resolution of conflicts in evidence are the exclusive province of the zoning
board. Id. When reviewing the grant or denial of a variance, the Court may not
substitute its interpretation of the evidence for that of the zoning board. Id.
In connection with a home occupation trade, Section 27-
304(B10)(b)(6)(a) of the Ordinance provides:
(a) No more than one business vehicle may be parked on
the property including noncommercial trucks and vans
with loading capacities not exceeding 3/4 ton. The
business vehicle shall be parked in an enclosed structure.
16
Upon review, Landowner is not entitled to a variance from this
provision because, as discussed above, his business use does not qualify as an
Accessory Home Occupation. Even if it did, Landowner has not shown any hardship
relating to the number of business vehicles permitted on the Property and loading
capacity restriction. Landowner asserts he will suffer severe economic detriment if
he is not permitted to have more than one business vehicle at the Property because
the very nature of his business depends on having multiple large vehicles with excess
load capacity to move equipment and supplies. However, other than economic
hardship, Landowner has offered no other basis to justify a dimensional variance.
See Marshall; Hertzberg. Moreover, Landowner’s assertion of hardship does not
arise from the uniqueness of the Property, but from the impact of the zoning
regulations on the entire district. See Marshall. Thus, the Board did not abuse its
discretion in denying the vehicle variance and the trial court properly upheld this
determination.
C. Use Variance – H5 Contracting Use
Alternatively, Landowner argues that the trial court abused its
discretion and erred by reversing the Board’s determination that Landowner
established entitlement to a use variance to permit an H5 Contracting Use on the
Property in addition to his residential use. Landowner claims that he established the
criteria for a variance. The Property suffers from many unique physical conditions
that are peculiar to it, including a highly irregular shape, an intermittent stream that
bisects it, considerable woodland coverage and its size, which is nine times larger
than the minimum lot area requirement of the Ordinance, relative to the surrounding
properties. These unique physical conditions were not created by Landowner as they
are natural features of the Property. Landowner also established that the proposed
17
use would not have a detrimental impact on surrounding properties or the community
as a whole because the proposed use is far less intensive and intrusive upon
neighboring properties and the surrounding community than many of the permitted
uses in the RP District. Landowner has taken considerable steps to minimize or
eliminate potential disturbance during the few weekday hours when any business
activity occurs on the Property. Moreover, Landowner agreed to all 19 conditions
of approval placed on the grant of the variance by the Board to minimize any impacts
of the proposed use.
Landowner’s Property is located in the RP District, which permits the
following uses as of right:
(1) Al General Farming.
(2) A2 Nursery.
(3) A3 Intensive Agriculture.
(4) A4 Forestry.
(5) A5 Riding Academy.
(6) A6 Kennel -Commercial.
(7) A7 Agricultural Retail.
(8) A8 Farm Unit.
(9) A10 Kennel -Noncommercial.
(10) B1 Detached Dwelling.
(11) B2 Cluster Subdivision.
(12) BlOa Accessory Professional Office.
(13) BlOb Accessory Personal Services.
(14) BlOc Accessory Instructional Services.
(15) BlOd Accessory Home Crafts.
(16) B11 Residential Accessory Building.
(17) B12 Garage Sales.
(18) C7 Municipal Building.
(19) Dl Recreational Facility.
(20) D2 Private Recreational Facility.
(21) E2 Veterinary Office.
(22) F21 Golf Course.
(23) Il Nonresidential Accessory Building.
(24) 13 Temporary Structure.
(25) 19 Off -Street Parking.
18
(26) HO Signs.
Section 27-401(a) of the Ordinance (emphasis added). Section 27-300 of the
Ordinance provides, with emphasis added, “[o]n any property, parcel or tract of land,
only one principal use shall be permitted.” Section 27-254 of the Ordinance defines
“principal use” as “the main use on a lot.”
Section 27-304(H5) of the Ordinance classifies an H5 Contracting Use
as an industrial use. Section 27-304(H5) defines an H5 Contracting Use as
“[c]ontractor offices and shops such as building, cement, electrical, heating,
masonry, painting and roofing.” An H5 Contracting Use is not a permitted use in
the RP District. See Section 27-401(a) of the Ordinance. Hence, a variance was
required.
As set forth above, the standards for a use variance required Landowner
to show, inter alia, that unnecessary hardship will result if the variance is denied due
to the unique physical circumstances or conditions of the Property. See Tri-County
Landfill, 83 A.3d at 520. An unnecessary hardship deprives a property owner of the
reasonable use of his property. Nowicki v. Zoning Hearing Board of Borough of
Monaca, 91 A.3d 287, 293 (Pa. Cmwlth. 2014). To establish unnecessary hardship,
as required for a use variance, a property owner must prove that: “(1) the physical
features of the property are such that it cannot be used for a permitted purpose; or
(2) that the property can be conformed for a permitted use only at a prohibitive
expense; or (3) that the property has no value for any purpose permitted by the
zoning ordinance.” Hertzberg, 721 A.2d at 47; accord Nowicki, 91 A.3d at 292.
“[M]ultiple factors are to be taken into account when assessing whether unnecessary
hardship has been established.” Marshall, 97 A.3d at 330 (citation and internal
quotation omitted). “Although a property owner is not required to show that his or
19
her property is valueless unless a variance is granted, mere economic hardship will
not of itself justify a grant of a variance.” Id. (citation and internal quotation
omitted). Similarly, evidence that the zoned use is less financially rewarding than
the proposed use is insufficient to justify a variance. Id. Where the property is
actually used for any purpose permitted by a zoning ordinance, the owner does not
suffer unnecessary hardship. Patullo v. Zoning Hearing Board of Middletown
Township, 701 A.2d 295, 300 (Pa. Cmwlth. 1997).
Here, the record contains substantial, undisputed evidence regarding
the Property’s unique physical conditions. The Property has an irregular shape, is
encumbered with an intermittent stream that bisects the Property, has vast
woodlands, and is relatively large compared to surrounding properties. However,
Landowner did not show how these unique physical conditions prevent him from
utilizing or developing the Property in strict conformance with the Ordinance. There
is no evidence that the Property’s physical conditions prevent the Property from
being used for any of the many permitted uses in the RP District or that conformance
with a permitted use would be prohibitively expensive. In fact, the Property is
currently developed and used as Landowner’s primary residence. The only claim
Landowner can reasonably make is that, if the variance is denied, the use of his
Property will be less financially rewarding. However, such a circumstance is
insufficient to meet the standard. See Marshall.
Upon review, the Board’s findings regarding unnecessary hardship are
not supported by substantial evidence. Consequently, the Board abused its
discretion by granting variances to allow the H5 Contracting Use and second
principal use on the Property. The trial court properly reversed this portion of the
Board’s decision.
20
IV. Conclusion
We conclude that Board did not err in denying Landowner’s request to
recognize his landscaping and excavating business as an Accessory Home
Occupation and dimensional request for a vehicle variance related thereto.
However, the Board did err in granting Landowner a variance to allow the H5
Contracting Use and second principal use on the Property. Thus, the trial court
properly reversed the Board’s decision insofar as it granted the H5 Contracting Use
and second principal use variances and affirmed in all other respects.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
East Rockhill Township :
:
v. : No. 687 C.D. 2018
:
East Rockhill Township :
Zoning Hearing Board :
and James Burkey :
:
Appeal of: James Burkey :
ORDER
AND NOW, this 9th day of April, 2019, the order of the Court of
Common Pleas of Bucks County, dated April 20, 2018, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge