D. & S. Fask v. ZHB of the Twp. of Haverford

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David and Sarah Fask,
:
Appellants :
:
v. : No. 17 C.D. 2019
: Submitted: August 23, 2019
Zoning Hearing Board of :
the Township of Haverford :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 12, 2020
David and Sarah Fask (Appellants) appeal from the December 10,
2018 order of the Court of Common Pleas of Delaware County (trial court), which
affirmed the decision of the Zoning Hearing Board (ZHB) of the Township of
Haverford (Township) granting Appellants’ application for a special exception to
operate a professional office within a residential dwelling subject to several
conditions. Appellants challenge Condition 2, restricting the hours and days of Dr.
Fask’s1 psychology practice hours to 9:00 a.m. through 7:00 p.m. Monday through
Friday. Appellants contend that the ZHB abused its discretion by imposing those
limitations without evidentiary support. Upon review, we agree, and we reverse
the trial court’s order.
1
David Fask is a licensed clinical psychologist. Reproduced Record (R.R.) at 16a, 180a.
Facts/Procedural History
In April 2018, Appellants purchased a single-family home at 15
Brennan Drive, Bryn Mawr, Delaware County, Pennsylvania. R.R. at 4a. There
are 39 houses on Brennan Drive, which connects Darby Road and Route 320. Id.
The property is situated within the Township’s R-1 Low-Density Residential
District, where professional offices are permitted by special exception. Township
of Haverford, Pa., General Legislation/Zoning Code (Code) §182-202(B)(3), R.R.
at 23a. A professional office includes “the office of a . . . psychologist . . . who
customarily has offices in the dwelling in which such person resides.” Code
Section 182-106(B), R.R. at 26a.
On March 14, 2018, Appellants filed a special exception application
with the ZHB requesting use of their home office as a professional office.2 R.R. at
2
In relevant part, Section 182-202(B)(3)(c) of the Code sets forth the following nine
requirements necessary for approval of a special exception for a professional office:
(1) Such office shall be located in the dwelling in which the
practitioner resides or within a building accessory thereto.
(2) Not more than one person shall be engaged or employed in
such practice who is not a resident of the dwelling, except that two
members of a recognized profession related by marriage and both
residing within said dwelling shall be permitted to practice
together.
(3) The area used for the practice of a professional shall not exceed
25% of the total floor area of said dwelling.
(4) The profession shall be clearly incidental to the residential use
of the dwelling and shall not change the residential character of a
dwelling.
(5) No external alterations inconsistent with the residential use of
the dwelling shall be permitted.
(Footnote continued on next page…)
2
16a, 19a. In support, Dr. Fask attached a sworn declaration averring that the
proposed use would comply with the Code’s requirements for a special exception.
R.R. at 46a, 47a. The ZHB considered the application at a public hearing on April
19, 2018. R.R. at 157a.
Mrs. Fask testified that Dr. Fask worked with a private practice in
Philadelphia and Lower Merion Township and provided therapy to Haverford
College students at the school’s Counseling and Psychological Services Center.
R.R. at 167a. She stated that Dr. Fask saw clients during the week and on Sunday
nights; she added that he anticipated working no more than 40 hours a week,
including Sunday evenings. R.R. at 172a, 179a, 182a. Mrs. Fask said that Dr.
Fask would schedule one client at a time for appointments lasting 45 to 50 minutes.
R.R. at 171a. She explained that with 10 to 15 minutes between appointments, it
was likely that only one client would be driving through the neighborhood at a
(continued…)
(6) There shall be no displays, goods or materials visible from
outside the building, except for a name or a professional office sign
as permitted in the sign regulations, § 182-701C, and no
professional office shall have any other external evidence of a
secondary use.
(7) Professional office uses shall serve not more than one client at
any given time.
(8) Three off-street parking spaces, located to the side or rear of
the premises, but not in the front yard, shall be required in addition
to the single space required for a single-family dwelling.
(9) Professional offices shall not be permitted within a
nonconforming multifamily structure.
R.R. at 23a-24a.
3
time. R.R. at 170a-71a. She also confirmed that Dr. Fask would not employ
support staff. R.R. at 168a. Additionally, Mrs. Fask presented an appraisal report
reflecting that four parking spaces are available at the property, two in the
driveway and two in the garage. R.R. at 155a, 172a, 177a.
Mrs. Fask described a psychologist’s office as having a confidential
and calm atmosphere. R.R. at 175a. She testified that Dr. Fask’s practice would
operate within a 135-square-foot home office, comprising 3.9 percent of the total
dwelling. R.R. at 168a. She also noted that the residence previously had been
used as a psychiatrist’s office. R.R. at 170a. She stated that Dr. Fask’s practice
would not be apparent from outside the home and would not detract from the
neighbors’ enjoyment of their property; no exterior modifications would be made,
and no signs would be erected. R.R. at 169a-70a, 175a.
Dr. Fask testified that he specializes in treating adults who are
struggling with anxiety, low self-esteem, and inter-personal relationships. R.R. at
180a, 186a. He stated that he did not intend to see clients with severe
psychopathology and noted that he was not authorized to prescribe medications.
R.R. at 186a-87a.
Victoria Sallee, who also lives on Brennan Drive, expressed concern
that Dr. Fask’s clients might mistakenly pull into her driveway. R.R. at 188a-89a.
She pointed out that Dr. Fask’s online professional profile reflects that he treats
clients with post-traumatic stress disorder (PTSD) and anger management issues.
R.R. at 189a. She also noted that through-traffic from the Darby Road intersection
with Brennan Drive is prohibited between 7:00 a.m. and 9:00 a.m. R.R. at 189a-
90a.
4
Dr. Eve Atkinson, who lives at 76 Brennan Drive, opined that some
Brennan Drive residents are unlawfully running businesses from their homes. R.R.
at 196a. She likewise noted that Dr. Fask’s website shows that he provides
treatment to individuals for trauma, depression, anxiety, phobia, low esteem, anger
management concerns, grief, family and relationship issues, and stress. R.R. at
196a. She also cited the prohibition of morning through-traffic at the Darby Road
entrance to Brennan Drive, but she acknowledged that the Route 320 entrance to
Brennan Drive has no such restrictions. R.R. at 199a.
In closing remarks, Mrs. Fask addressed the neighbors’ safety
concerns. R.R. at 208a. She explained that Dr. Fask’s online profile includes all
types of treatment that are provided by the members of his practice. R.R. at 205a.
She added that she and Dr. Fask have two small children, and she said that they
made the decision to operate a psychology practice within their home with great
consideration. R.R. at 208a.
On May 3, 2018, the ZHB voted to approve the application. R.R. at
228a. In its written decision of that same date, the ZHB found and concluded that
the special exception, if granted, would not detract from the neighborhood’s
character, substantially impair the use of adjacent properties, or be detrimental to
the public welfare. Conclusion of Law No. 2, R.R. at 233a. In particular, the ZHB
found: “Mr. and Mrs. Fask stated that Mr. Fask will only see clients during normal
business hours Monday – Friday.” ZHB’s Finding of Fact 5(i), R.R. at 230a. By
order dated May 3, 2018, the ZHB granted the special exception subject to six
conditions.3
3
The conditions imposed on the special exception are:
(Footnote continued on next page…)
5
On June 4, 2018, Appellants appealed to the trial court, requesting the
trial court to strike Condition 2. During oral argument on October 4, 2018,
Appellants acknowledged that the ZHB has authority to impose reasonable
conditions upon granting a special exception. However, Appellants argued that the
condition restricting the days and hours of Dr. Fask’s practice was not supported
by the evidence.
Appellants further noted that in Finding of Fact 5(i), the ZHB
mischaracterized their testimony. Appellants emphasized that in contrast to the
ZHB’s characterization, Mrs. Fask specifically testified that Dr. Fask currently sees
clients on Sunday evenings and would like to continue doing so. R.R. at 182a-85a.
Appellants stressed that the ZHB’s imposition of Condition 2 severely
restricted clients’ access to therapy, explaining that Dr. Fask’s current schedule
(continued…)
1. The applicant will maintain at least 2 parking spots for patients’
motor vehicles to be kept open at all times on the flat portion of the
driveway near the house.
2. Business hours will be no more than 40 hours per week, Monday
through Friday only. No office hours will begin before 9:00 a.m.
and no appointments will start after 7:00 p.m.
3. There will be no employees on site.
4. There will be no signage on site.
5. There will be no advertising for trauma, PTSD or drug addiction
services.
6. The approval is subject to the statements made by applicants as
set forth in the notes of testimony.
R.R. at 235a.
6
accommodates clients who need appointments outside their work hours.
Appellants maintained that no evidence was offered to establish a necessity for
limiting appointment hours. For example, no traffic study was conducted and no
other evidence, such as a school bus route passing through Brennan Drive, was
presented to support the neighbors’ vague safety concerns.
Appellants acknowledged that the traffic sign at the intersection of
Darby Road and Brennan Drive prohibits ingress between 7:00 a.m. and 9:00 a.m.,
but they noted that the alternate entrance to Brennan Drive has no similar
restriction. Appellants also noted that the Code allows construction activities in a
residential area to begin at 8:00 a.m. Relying on Van Sciver v. Zoning Board of
Adjustment of Philadelphia, 152 A.2d 717 (Pa. 1959), and Sabatine v. Zoning
Hearing Board of Washington Township, 651 A.2d 649 (Pa. Cmwlth. 1994),
Appellants argued that the ZHB abused its discretion by imposing restrictions on
the days and hours of Dr. Fask’s practice.
In response, the ZHB conceded that the 9:00 a.m. – 5:00 p.m. time
restriction was based on the Darby Road traffic sign prohibiting through-traffic
before 9:00 a.m.4 R.R. at 282a. The ZHB stated that it imposed the weekend
prohibition because families and children are more often around on weekends. The
ZHB also expressed a desire to preserve the residential character of the
neighborhood. R.R. at 283a.
By order dated December 10, 2018, the trial court affirmed the ZHB’s
decision in its entirety. R.R. at 292a. In doing so, the trial court cited the
4
The trial court observed that the purpose of the sign was to discourage rush hour
through-traffic, whereas here, the use would involve one additional car driving down the street
every hour, if that. R.R. at 282a-83a.
7
residential nature of the neighborhood and the discretion afforded to the ZHB
under the Code. R.R. at 292a.
Discussion
On appeal to this Court,5 Appellants argue that the trial court erred in
affirming the ZHB’s decision insofar as it imposes restrictions on the days and
hours of Dr. Fask’s practice. Relying on Van Sciver and Sabatine, Appellants
assert that the ZHB abused its discretion by imposing a condition that
unreasonably restricts Dr. Fask’s practice in the absence of any evidentiary
support. We agree.
A special exception is a use expressly permitted by the local zoning
code, so long as the proposed use does not have a detrimental effect on the
community. Southdown, Inc. v. Jackson Township Zoning Hearing Board, 809
A.2d 1059, 1063 (Pa. Cmwlth. 2002). When an applicant shows that the proposed
use is compliant with the applicable zoning requirements, the proposed use is
presumed to be consistent with the health, safety, and general welfare of the
community. Manor Healthcare Corp. v. Lower Moreland Township Zoning
Hearing Board, 590 A.2d 65, 70 (Pa. Cmwlth. 1991); Bray v. Zoning Board of
Adjustment, 410 A.2d 909, 911 (Pa. Cmwlth. 1980). The burden then shifts to
objectors to present substantial evidence that the proposed use would have a
detrimental effect on the health safety and general welfare of the community.
Bray, 410 A.2d at 912.
5
Where, as here, the trial court did not take any additional evidence, our scope of review
is limited to determining whether the ZHB committed an error of law or abused its discretion.
W.J. Menkins Holdings, LLC v. Douglass Township, 208 A.3d 190, 194 n.11 (Pa. Cmwlth.
2019). “A zoning hearing board abuses its discretion only if its findings are not supported by
substantial evidence.” Id.
8
Substantial evidence means such evidence that a reasonable person
would view as adequate to support a conclusion. River’s Edge Funeral Chapel &
Crematory, Inc. v. Zoning Hearing Board of Tullytown Borough, 150 A.3d 132,
142 (Pa. Cmwlth. 2016). This Court has consistently held that mere speculation,
inferences, personal opinions, assertions, and conjecture will not suffice as
substantial evidence. See, e.g., Monroe Land Investments v. Zoning Board of
Adjustment, 182 A.3d 1, 9 (Pa. Cmwlth. 2018); Allegheny Tower Associates, LLC
v. City of Scranton Zoning Hearing Board, 152 A.3d 1118, 1121-22 (Pa. Cmwlth.
2017); Manor Healthcare Corp., 590 A.2d at 71.
In granting a special exception, the ZHB has authority to attach
reasonable conditions.6 However, where there is no evidence in the record to
support the imposition of a condition, the condition is considered manifestly
unreasonable and an abuse of discretion. Good v. Zoning Hearing Board of
Heidelberg Township, 967 A.2d 421, 430-31 (Pa. Cmwlth. 2009) (“Conditions
must be reasonable and must find support in the record warranting the imposition
of such conditions; otherwise, the imposition of conditions constitutes an abuse of
discretion.”).
6
Section 182-1004(B) of the Code states, in relevant part,
In granting any variance or special exception, the Board may
attach such reasonable conditions and safeguards, in addition to
those expressed in this chapter, as it may deem necessary to
implement the purposes of the Planning Code and Zoning
Ordinance, which conditions and safeguards may relate to but are
not limited to the harmonious design of buildings, planting and its
maintenance as a sight or sound screen, lighting, noise, safety and
the minimizing of noxious, offensive or hazardous elements.
Code Section 182-1004(B).
9
In Van Sciver, the zoning board reviewed a request to allow an
unattended, 24-hour laundromat as a permitted use in a commercial district. The
zoning board considered the request as a request for a variance, which it granted
subject to conditions restricting operation of the business to the hours between 8:00
a.m. and 8:00 p.m. and requiring that someone be on duty during all hours of
operation. In its decision, the zoning board concluded that the conditions were
necessary to avoid fumes and odors from malfunctioning machines and to prevent
unsavory characters from having a place to gather in the early hours of the
morning. On appeal, our Supreme Court held that there was no evidence submitted
to show that the machines emit fumes and odors or that the proposed use would
attract criminal behavior. “It is thus obvious that these findings of fact by the
board are arbitrary and not supported by the record. They constituted
unsubstantiated prophesies and were based solely on the opinion of the board
itself.” 152 A.2d at 723. The Court described the imposition of the conditions,
unsupported by evidence, as an “unnecessary, unwarranted and unreasonable
intermeddling with the applicant’s ownership of his property.” 152 A.2d at 724.
In Sabatine, the local zoning board granted the appellants a special
exception to operate a flea market on their property, subject to certain conditions.
Relevant here, the zoning board limited the days and hours of operation of the flea
market to three days per week from 7:00 a.m. to 2:30 p.m. On appeal, the trial
court affirmed the imposition of that condition, reasoning that the use would lead
to an increase in traffic, which, in turn, would necessarily have an adverse impact
on the surrounding residents’ quiet enjoyment of their properties.
On further appeal, this Court found that the record was devoid of
evidence reflecting that an increase in traffic flow or noise would be created by
10
allowing the flea market to operate on the property. Relying on Van Sciver, we
explained in Sabatine that any restrictions imposed must be reasonable. 651 A.2d
at 655. Citing the lack of evidence that the proposed flea market use would create
an abnormal amount of traffic or noise affecting the neighboring properties, we
held that the trial court abused its discretion in affirming the restriction and ordered
it stricken. Id.
In this matter, both the ZHB and the trial court determined that
Appellants met their burden to show that the proposed use would comply with the
requirements of Code Section 182-202(B)(3)(c). There is no dispute that the ZHB
had authority to impose conditions on the grant of the special exception. However,
as explained in Van Sciver and Sabatine, the imposition of conditions must be
supported by substantial evidence. We agree with Appellants that the record
before the ZHB includes only speculative concerns expressed by neighboring
residents that do not suffice as substantial evidence. Monroe Land Investments,
182 A.3d at 9. Consequently, the ZHB unreasonably restricted the days and hours
of Dr. Fask’s practice, and the trial court erred in affirming the ZHB’s decision in
that regard. Sabatine, 651 A.2d at 655.
Accordingly, we affirm the order of the trial court, with the exception
of Condition 2, which is stricken.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David and Sarah Fask, :
:
Appellants :
:
v. : No. 17 C.D. 2019
:
Zoning Hearing Board of :
the Township of Haverford :
ORDER
AND NOW, this 12th day of May, 2020, the order of the Court of
Common Pleas of Delaware County, dated December 10, 2018, is AFFIRMED
with the exception of Condition 2, which is STRICKEN.
__________________________________
MICHAEL H. WOJCIK, Judge