F.L. Dickerson IV v. Lower Swatara Twp. ZHB v. Lower Swatara Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fritz Lee Dickerson IV, Ashton Chase :
Dickerson, Thomas N. Steele, Ann M. :
Korb and Fritz Lee Dickerson III, :
:
Appellants :
:
v. : No. 1544 C.D. 2018
: Argued: September 10, 2019
Lower Swatara Township Zoning :
Hearing Board :
:
v. :
:
Lower Swatara Township :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 13, 2019
Applicants1 appeal the October 22, 2018 order of the Court of Common
Pleas of Dauphin County (trial court), dismissing Applicants’ land use appeal and
affirming the January 26, 2017 decision and order of the Zoning Hearing Board
(ZHB) of Lower Swatara Township (Township), denying Applicants’ request for a
1
Applicants are Fritz Lee Dickerson, IV (Dickerson, IV), Ashton Chase Dickerson
(Dickerson), Thomas N. Steele (Steele), Ann M. Korb (Korb), and Fritz Lee Dickerson, III
(Dickerson, III).
use variance under the Township’s Zoning Ordinance (Ordinance).2 Applicants
contend they met their burden of establishing all of the elements for a variance set
forth in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (MPC),3
and the ZHB’s denial of the variance request is not supported by substantial
evidence, and is therefore an abuse of discretion. Upon review, we affirm.
I. Background
Applicants are individuals who own or have an ownership interest in
the five contiguous residential parcels (Property)4 at issue in the variance request.
The Property, totaling 17.08 acres, is located in a Residential-Suburban (R-S)
district. The Property is bounded by Pennsylvania Route 283 (Rt. 283) to the north,
North Union Street to the west, the Swatara Creek to the east, and residential parcels
to the south.
On April 28, 2016, Applicants collectively submitted an application for
a land use variance to the ZHB for the Property. Applicants requested relief from
Section 27-502 of the Ordinance,5 regarding the permitted uses within an R-S
2
The Ordinance was enacted on July 17, 1993.
3
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988, P.L.
1329, 53 P.S. §10910.2(a).
4
The Property includes: (1) Dickerson Parcel I, owned by Dickerson, IV and Dickerson;
(2) Dickerson Parcel II, owned by Dickerson, IV and Dickerson; (3) Steele Parcel, owned by
Steele; (4) Korb Parcel, owned by Korb; and (5) Church Parcel, owned by Robert R. Church, Linda
E. Church, and Derek S. Nakamura, as co-trustees. Dickerson, III has the option to purchase a
portion of the Church Parcel, which is a section of the Proposed Development.
5
Section 27-502 states:
A building may be erected or used and a lot may be used or occupied
for any of the following purposes:
2
district, and from Section 27-508 of the Ordinance, imposing a 30% impervious
coverage limit for R-S zoned lots. If the variance is granted, Applicants intend to
combine the Property’s five residential parcels into a single parcel, which they will
subdivide and develop as a five-lot commercial property (the Proposed
Development). The Proposed Development will consist of one restaurant, one office
building, two small retail buildings, and a 79-room hotel. As a self-imposed
condition, Applicants agreed that they, or their successor(s) in interest, will expand
public water and sewer services to the Proposed Development, thereby bringing the
services to the residential area immediately south of the Proposed Development.
A. Single family detached dwellings, with the exception of
manufactured/mobile home dwellings which are
prohibited.
B. Churches or similar places of worship, including
associated social facilities.
C. Public recreation areas.
D. Agricultural activities.
E. Municipal buildings and facilities.
F. Public and parochial schools, libraries and museums.
G. Home occupations.
H. Public utility services and facilities.
I. Signs.
J. Accessory uses and buildings incidental to any permitted
use.
Reproduced Record (R.R.) at 1a.
3
The ZHB held four public hearings on Applicants’ variance application.
Applicants testified and presented four additional witnesses: (1) Robert Shaffer, a
professional engineer and a sewage enforcement officer; (2) William Gladstone, a
commercial real estate agent; (3) Jarred Neal, a licensed professional traffic
engineer; and (4) Thomas Luttrell, a development consultant. The Township
presented the testimony of two witnesses: (1) Eric Stump, a licensed professional
traffic engineer; and (2) Jamie Keener, a certified land planner. The ZHB granted
intervenor party status to 11 neighboring property owners (Intervenors).6
The testimony revealed that the Property is currently improved with
eight residential dwellings. Several Applicants reside in homes located on the
Dickerson I, Dickerson II, and Korb Parcels, which rely on private wells and septic
systems. The Steele Parcel, which contains four homes, is not currently used for
residential purposes. The Church Parcel is undeveloped.
Steele testified that he purchased the Steele Parcel in 2002 and lived in
one of the homes from 2002 to 2007. During that time, Steele rented the other three
homes out as residences. However, in 2007, Steele began having septic issues on
the parcel. In 2008, Steele built a new private septic system and connected two of
the four homes. The size and topography of the lot prevented the connection of the
two remaining homes to the new septic system, rendering them unsuitable for human
occupancy. Steele, who does not currently reside on the parcel, testified that it would
be possible for him to live in one of the two serviced homes. However, he said that
all four of the homes have fallen into disrepair. R.R. at 42a-56a.
6
Intervenors are Nancy Avolese; Sherry and Tim Santoro; Deborah Keim-Beynon and
Richard Benyon; Joe and Marianne Hoover; David Zavoda; Tom Librandi; and Margaret and
Wilfred Anfang.
4
Applicants testified about significant industrial growth in the area north
of the Property over the last decade. Many large warehouses have been constructed,
including an expansive FedEx facility. The FedEx facility operates 24/7, creating
significant noise, light, and dust pollution, as well as increased vehicle and foot
traffic in the vicinity. Additionally, directly across North Union Street from the
Property, there is a 200-acre parcel of land zoned as “Commercial Highway,” known
as the Shope Property. The Shope Property has been zoned Commercial Highway
since 2008 and remains undeveloped. R.R. at 35a-37a, 39a, 64a, 73a, 82a-83a, 90a-
92a.
Applicants who currently reside on the Property testified that they wish
to move to a more desirable residential location, and believe that they will be unable
to market and sell their properties as residences. However, they have not attempted
to place their properties on the market in recent years, and both Dickerson, IV and
Dickerson testified that they have not had their homes appraised. R.R. at 32a-33a,
36a, 39a-40a, 65a, 69a, 70a, 75a, 77a.
Shaffer, Applicants’ professional engineer, testified that connecting the
Property to public water and sewer services would cost between $400,000 and
$500,000. These costs would be paid by a developer if the variance was granted,
per Applicants’ stipulation. Otherwise, the Property will either continue without
access, or the costs will be borne by the Township. Shaffer conceded that the
Property could be developed residentially without connecting it to public water and
sewer services, but added that there would “not [be] a lot of room for density” of
development, due to the space required for private septic systems. R.R. at 475a-
482a.
5
Gladstone, Applicants’ commercial real estate expert, testified that the
highest and best use of the Property is a commercial-type use because of the
Property’s location. R.R. at 526a. However, Gladstone conceded that the Property
could be marketed for a permitted use under the current R-S zoning. R.R. at 517a.
Similarly, Luttrell, Applicants’ development consultant, testified that if each parcel
of land in the Property was sold for residential purposes, the prices would not be
anywhere close to what the parcel could sell for if it could be developed
commercially. R.R. at 840a.
The Township’s expert land planner, Keener, testified that the Property
was suitable for multiple uses permitted in an R-S district. R.R. at 918a-919a.
Keener testified that the Property was also suitable for uses allowed by special
exception in an R-S district, such as a medical or dental clinic. R.R. at 919a.
Moreover, with respect to intensity, Keener testified that the Ordinance establishes
districts allowing uses that are more intense than are allowed in an R-S district, but
less intense than allowed in the Commercial Highway district. R.R. at 921a. These
districts include Residential-Urban, Residential Multi-Family, and Commercial
Neighborhood. Id.
Both Applicants’ and the Township’s professional traffic engineers
offered extensive testimony regarding the potential traffic impact of the Proposed
Development. Their testimony established that the Proposed Development would
result in 3,434 new daily motor vehicle trips on North Union Street. Of these 3,434
additional daily trips, 20% would be heading south of the Proposed Development,
towards Intervenors’ properties. In the aggregate, the portion of North Union Street
south of the Proposed Development would see an 18% increase in traffic volume.
R.R. at 544a-605a, 876a-904a.
6
Intervenors objected to Applicants’ variance request because they
believe the Proposed Development would increase traffic, noise, light, and dust
pollution that North Union Street already experiences. Intervenors corroborated
Applicants’ testimony regarding the negative impacts of the FedEx facility. Hoover
testified that the noise and light from the FedEx facility has gotten to a point where
it is “not pleasurable.” R.R. at 1110a. Librandi testified about the “constant” truck
noise coming from the FedEx facility. R.R. at 1135a, 1098a-99a, 1111a-29a, 1134a-
49a, 1154a-55a, 1158a-70a.
On January 26, 2017, the ZHB issued a decision and an order denying
Applicants’ request for a variance with respect to the Property. The ZHB’s findings
and conclusions include the following:
12. The [] Property is currently improved with eight
residential dwellings. All of the dwellings are currently or
potentially habitable.
***
18. Applicants testified at the hearing that their
properties are adversely affected by the noise, light and
other factors caused by the proximity to [Rt.] 283 and the
industrially developed properties located on the north side
of [Rt.] 283.
19. None of the Applicants provided documentation
with regards to any septic system or water issues on the
[P]roperty subject to this Application.
***
24. [] Shaffer testified that the [P]roperty at issue
could be developed residentially without public water and
public sewer and is already developed residentially.
***
7
27. [] Gladstone testified that the “highest and best
use” for the [P]roperty would be commercial
development, but acknowledged the [P]roperty is
currently used for residential purposes.
28. [] Gladstone also acknowledged that the []
Property might be used for some permitted uses in the
current R-S District.
***
3. The [] Property does not have unique physical
circumstances or conditions. The parcel has existed in its
present configuration for an extended period of time and
borders on a major highway and the Swatara Creek. There
are similar residential districts abutting commercial
districts in the Township.
4. Not only is there a possibility of using the
[P]roperty in conformity with the existing zoning, but the
[P]roperty is currently being used in conformity with the
existing zoning district’s requirements.
5. The hardships cited by [Applicants] included
traffic, noise and light issues, topography, and soil issues.
[Applicants] did not cause the hardships cited and are not
responsible for the same, however, [Applicants] are
currently using the properties, at least partially, consistent
with the existing zoning district.
6. Granting of the variance would [not] significantly
alter the essential character of the neighborhood, changing
it from residential to commercial.[7]
7. The requested variance does not represent the
minimum variance that will afford relief. The [P]roperty
could be developed for several permitted uses in the R-S
District. In addition, a lesser variance is possible, thus
7
See ZHB Opinion at 11 (explaining that granting the variance would not change the
character of the neighborhood nor be detrimental to the health, safety, and welfare of the public);
see also Trial Court 10/22/2018 Opinion at 16-17 (same).
8
making the requested variance one that is beyond the
minimum to afford relief. For instance, a residential multi-
family use might provide the economic wherewithal to
allow the property to be further developed.
8. Not all of the five requirements for granting a
variance application were met, therefore the application
for variance is denied.
ZHB Opinion, Findings of Fact (F.F.) Nos. 12, 18, 19, 24, 27-28, Conclusions of
Law (C.L.) Nos. 3-8 (emphasis in original).
Applicants appealed the ZHB’s decision to the trial court, which
affirmed. Applicants now appeal to this Court.8
II. Discussion
On appeal, Applicants argue the ZHB’s denial of the use variance
application is an abuse of discretion because it is not supported by substantial
evidence. Specifically, Applicants assert that they have satisfied the variance criteria
set forth in the MPC.
To begin, the ZHB abuses its discretion when its findings are not
supported by substantial evidence. Hawk v. City of Pittsburgh Zoning Board of
Adjustment, 38 A.3d 1061, 1065 n.5 (Pa. Cmwlth. 2012). Substantial evidence is
such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion. Id. In determining whether substantial evidence exists, the Court is
mindful that the credibility of witnesses and the weight to be accorded to their
testimony is within the sole province of the ZHB in its capacity as a fact-finder. Id.
The ZHB is free to accept or reject the testimony of any witnesses, in whole or in
8
Where, as here, the trial court did not take any additional evidence, our review is limited
to determining whether the ZHB 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).
9
part. Id. This Court may not substitute its interpretation of the evidence in place of
the ZHB. Marshall v. City of Philadelphia, 97 A.3d 323, 331 (Pa. 2014). If the
record contains substantial evidence, this Court is bound by the ZHB’s findings
resulting from resolutions of credibility and conflicting testimony. Taliaferro v.
Darby Township Zoning Hearing Board, 873 A.2d 807, 811 (Pa. Cmwlth.), appeal
denied, 887 A.2d 1243 (Pa. 2005).
A ZHB may grant a variance when the following criteria are met:
(1) [A]n 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.
Ruddy v. Lower Southampton Township Zoning Hearing Board, 669 A.2d 1051,
1053 (Pa. Cmwlth. 1995).
Applicants allege that they have shown the Ordinance imposes an
unnecessary hardship based on the Property’s unique physical characteristics,
including its proximity to Rt. 283 and the lack of public water and sewage services,
which render it unsuitable for any permitted purpose under the current R-S zoning.
Applicants also contend they have shown the Property cannot be developed in
conformity with the current R-S zoning. Finally, Applicants argue that the variance
requested is the minimum necessary to afford Applicants relief.
10
A. Unnecessary Hardship
An applicant for a variance must demonstrate that the ordinance from
which the applicant seeks relief imposes an unnecessary hardship on the property.
Ruddy, 669 A.2d at 1053.
[The Pennsylvania Supreme] Court has previously
held that, in the context of use variances, “unnecessary
hardship is established by evidence that: (1) the physical
features of the property are such that it cannot be used for
a permitted purpose; or (2) the property can be conformed
for a permitted use only at a prohibitive expense; or (3)
the Property has no value for any purpose permitted by the
zoning ordinance.”
Marshall, 97 A.3d at 329 (quoting Hertzberg v. Zoning Board of Adjustment of the
City of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998)) (emphasis in original). The
Pennsylvania Supreme Court has made clear that “an applicant for a variance is not
required to show that the property at issue is valueless without the variance or that
the property cannot be used for any permitted purpose.” Marshall, 97 A.3d at 330
(emphasis in original).
However, “mere evidence that the zoned use is less financially
rewarding than the proposed use is insufficient to justify a variance.” Marshall, 97
A.3d at 330 (quoting Valley View Civic Association v. Zoning Board of Adjustment,
462 A.2d 637, 640 (Pa. 1983)). Particularly where a variance is sought to change
from an existing use consistent with the zoning code to an inconsistent use, the fact
that the property would increase in value if a variance was granted is not a sufficient
basis for a finding of unnecessary hardship. Marshall, 97 A.3d at 330. A variance
will not be granted simply because a zoning ordinance deprives the property owner
of the most lucrative and profitable uses. Wilson v. Plumstead Township Zoning
Hearing Board, 936 A.2d 1061, 1070 (Pa. 2007).
11
Here, the ZHB made the necessary findings of fact regarding hardship.
The ZHB found that the Property is currently being used for residential purposes.
F.F. Nos. 12, 24, 27. The ZHB further found that Applicants failed to prove that the
Property’s soils are unsuitable for private septic systems. F.F. No. 19. Additionally,
the ZHB found Applicants’ stipulation that, upon obtaining the variance, either they
or their successor(s) in interest will acquire public water and sewer services to the
Proposed Development supported the conclusion that the Property could be used for
conforming purposes under the current R-S zoning. ZHB Opinion at 9-10. The ZHB
stated that “on this record, we cannot conclude that the [] Property possesses unique
physical [characteristics] that would support public sewer only in a non-residential
building.” Id. While the ZHB found that Applicants did not cause the traffic, noise,
and light pollution testified to, C.L. No. 5, the ZHB found that the Property “has
existed in its present configuration for an extended period of time and borders on a
major highway and the Swatara Creek. There are similar residential districts
abutting commercial districts in the Township.” C.L. No. 3.
Upon review, we conclude that the ZHB’s findings regarding hardship
are supported by Applicants’ and their experts’ testimony. Several Applicants
testified that they are currently residing in homes on the Property. R.R. at 29a, 61a,
74a, 79a. Applicants’ experts testified that the Property could be further developed
in accordance with the R-S zoning. R.R. at 447a, 517a, 840a. The record lacks
evidence on the unsuitability of the Property’s soils for private septic systems.
Dickerson, III testified that Rt. 283 has bordered the Property to the north since the
1960s. R.R. at 80a. All Applicants acknowledged that the area across Rt. 283 where
the FedEx facility is located has been zoned as Industrial since 1970. R.R. at 37a,
50a, 68a, 78a. Lastly, the record shows that there are similar tracts of land zoned for
12
residential use abutting highways and commercial areas throughout Central
Pennsylvania. R.R at 510a, 815a-819a. Despite Applicants’ extensive presentation
of evidence regarding the “highest and best use” of the Property, the fact remains
that the Property is currently used and can be further developed in accordance with
the current R-S zoning. See R.R. at 510a-12a, 517a, 529a, 840a. Therefore, the
ZHB’s finding that Applicants failed to prove unnecessary hardship is supported by
substantial evidence.
B. Cannot be Developed in Conformity With Ordinance
Next, to obtain a variance, Applicants must demonstrate that the
Property cannot be developed in strict conformity with the current R-S zoning. See
Ruddy, 669 A.2d at 1053. As discussed above, the Property is currently being used
for residential purposes in conformity with the R-S zoning. R.R. at 29a, 61a, 74a,
79a. Applicants’ experts conceded that the Property could be developed for
residential purposes under its current zoning. R.R. at 477a, 517a, 840a. Further, the
Township’s experts testified that the Property could be developed in conformity with
the permitted uses or as a use permitted by special exception in the R-S zoning
district. R.R. at 918a-919a, 921a. Therefore, the ZHB’s determination that
Applicants failed to prove they are unable to develop the Property in conformity with
the Ordinance is supported by substantial evidence.
C. Minimum Variance Necessary
Further, Applicants were required to show that the requested variance
was the minimum variance necessary to afford relief. Ruddy, 669 A.2d at 1053. The
ZHB concluded that “[b]ecause the Property may be used for a number of Permitted
13
Uses without relief from the current R-S zoning . . . the requested relief is in excess
of that needed to afford relief.” ZHB Opinion at 11. This finding is supported by
Applicants’ testimony confirming that the Property is currently used for residential
purposes, and both Applicants’ and the Township’s experts’ testimony indicating
the Property could be developed in conformity with the R-S zoning. R.R. at 29a,
61a, 74a, 477a, 517a, 840a, 918a-919a, 921a. Further, the Township’s expert land
planner testified that the Property is suitable for uses permitted by special exception
in an R-S district, and that there are other uses permitted under the Ordinance that
are more intense than are permitted in an R-S district, but less intense than the uses
permitted in a Commercial Highway district that Applicants had not considered.
R.R. at 919a, 921a. The ZHB’s finding that the variance requested is greater than
the minimum variance necessary to afford relief is supported by substantial
evidence.
III. Conclusion
Our review confirms that the ZHB’s findings are supported by
substantial evidence and support the conclusion that Applicants did not meet the
variance criteria. Thus, we conclude that the ZHB did not err or abuse its discretion
in denying Applicants’ request for a use variance.
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Fritz Lee Dickerson IV, Ashton Chase :
Dickerson, Thomas N. Steele, Ann M. :
Korb and Fritz Lee Dickerson III, :
:
Appellants :
:
v. : No. 1544 C.D. 2018
:
Lower Swatara Township Zoning :
Hearing Board :
:
v. :
:
Lower Swatara Township :
ORDER
AND NOW, this 13th day of November, 2019, the order of the Court of
Common Pleas of Dauphin County dated October 22, 2018, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge