Lamar Hege, v. Swatara Township Zoning Hearing Board

Lamar Hege, v. Swatara Township Zoning Hearing Board

Civil Action-Real Property Law-Zoning-Corn Crib-Grain Tanks-Preparation of Feed Supplements-Special Exception-Variance

Lamar Hege filed an appeal from the decision of the Swatara Township Zoning Hearing Board (“Zoning Hearing Board”) that denied his appeal from a Notice of Violation issued regarding nonpermitted construction of a corn crib and grain tanks on the property and request for a special exception and/or variance to permit the presence of the already constructed corn crib and grain tanks on the property that was not zoned for commercial preparation of feeding supplements. 

1.  Where the trial court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law. 

2.  An abuse of discretion is established when the findings of the zoning hard board are not supported by substantial evidence. 

3.  Substantial evidence exists when a board issues an opinion that sets forth the essential findings of fact and sufficiently shows that the board’s action was reasonable rather than arbitrary. 

4.  A special exception is a use that expressly is permitted by ordinance as long as conditions detailed in the ordinance are found to exist.

5.  A variance is authority extended to a property owner to use the owner’s property in a manner forbidden by an ordinance.

6.  An applicant seeking a variance has the burden of establishing:  (1) unnecessary hardship will result if the variance is denied; (2) the hardship is unique or particular to the property as distinguished from hardship arising from the impact of the ordinance on the entire district; and (3) the proposed use will not be contrary to the public interest. 

7.  In order to establish entitlement to a use variance, the applicant must establish:  (1) the physical features of the property are such that it cannot be used for a permitted purpose; (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 ordinance. 

8.  The decision of the Zoning Hearing Board is supported by substantial evidence, as the record establishes that the commercial use of the property as a feed mill is not a permitted use under the ordinance or a grandfathered use of the property, no special exception exists for the desired use in the ordinance, the topography of the property does not present an undue hardship and the commercial enterprise would alter the essential character of the surrounding neighborhood, hinder the use of adjacent properties and cause annoyance and damage to neighboring properties.

L.C.C.C.P. No. 2024-CV-0989, Opinion by John C. Tylwalk, President Judge, April 9, 2025.

            IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

LAMAR HEGE,                                             :           NO. 2024-CV-0989

                                                                        :

            v.                                                         :

                                                                        :

SWATARA TOWNSHIP ZONING              :

HEARING BOARD                                        :

                                                            ORDER OF COURT

            AND NOW, this 9^th day of April, 2025, upon consideration of the appeal from the decision of the Swatara Township Zoning Hearing Board, Lebanon County, Pennsylvania submitted by Appellant Lamar Hege, it is hereby Ordered that said Decision is AFFIRMED.

                                                                        BY THE COURT:

                                                                        ___________________________, P.J.

                                                                        JOHN C. TYLWALK

JCT/jah

Cc:  Matthew J. Crème, Jr., Esquire/212 North Queen Street/Lancaster, PA  17603

        Colleen M. Gallo, Esquire/Barley Snyder

        Jeffrey F. Arnold, Esquire/Christianson Meyer

        Judith Huber, Esquire/Law Clerk

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                            CIVIL DIVISION

LAMAR HEGE,                                             :           NO. 2024-CV-0989

                                                                        :

            v.                                                         :

                                                                        :

SWATARA TOWNSHIP ZONING              :

HEARING BOARD                                      :

APPEARANCES:

JEFFREY F. ARNOLD, ESQUIRE                                   FOR APPELLANT LAMAR HEGE

CHRISTIANSON MEYER

MATTHEW J. CRÈME, JR., ESQUIRE              FOR SWATARA TOWNSHIP

NIKOLAUS & HOHENADEL, LLP                                   ZONING HEARING BOARD

COLLEEN M. GALLO, ESQUIRE                                   FOR INTERVENOR

BARLEY SNYDER                                                     SWATARA TOWNSHIP

OPINION, TYLWALK, P.J., APRIL 9, 2025.

In this Land Use Appeal, Lamar Hege (“Hege”) challenges the decision of the Swatara Township Zoning Hearing Board (“ZHB”) that denied his appeal from a Notice of Violation issued by the Swatara Township Zoning Officer and his application for a special exception and/or a variance regarding the use of property located at 376 Mountville Drive in Swatara Township.  Hege took possession of the property in January 2023 as the equitable owner pursuant to an Installment Agreement of Sale with the owner of the property, Bryan Morgan.   Before Morgan purchased the property from the previous owner, Stan Martin, it had been leased to a tenant farmer for growing crops.  Morgan cleaned up the property but did not actually use it before he entered the Installment Agreement of Sale with Hege. 

The property is located in a High-Density Residential Zoning District (“R-4 District”) pursuant to Section 27-10A02 of the Township Zoning Ordinance.  The property was rezoned from an Agricultural District in 2003 when a developer bought several tracts of land in the area for the construction of a 55-plus retirement community.  However, the project was never pursued due to the developer’s financial decline. 

The uses permitted in the R-4 District are set forth in the Ordinance:

            §27-10A02.   Permitted Uses.

1.  Certain permitted uses set forth in the R-2 Medium Residential District, subject to the requirements and restrictions set forth in R-2 Medium Residential District, Part 9, §902, Subsection 1, as set forth below.
2.  The R-2 District permitted use in a R-4 District include:
3. Single-family detached and semidetached dwellings.
4. Churches and similar places of worship and parish houses.
5. Public parks and public playgrounds.
6. Municipal buildings and community facilities, such as police and fire protection facilities, museums, libraries, etc., provided that they do not contain restaurants, cafes, membership clubs or other places offering food, beverages, dancing or entertainment.
7. Publicly owned nursery, kindergarten elementary, middle and high schools.
8. Bed-and-breakfasts, subject to the conditions set forth in §1423B of this chapter.
9. Family day-care homes, as regulated in §602, Subsection II of this chapter.
10. Accessory uses and buildings incidental to any of the above-permitted uses, as provided in Part 14 of this chapter.
11. Home occupations, as regulated in Part 14 of this chapter.

Hege continues to use a portion of the property for growing crops.   In addition, Hege ships in agricultural products such as hay and grain from other farms by tractor-trailer.  He mixes those products with other materials and then transports smaller quantities of the mixed goods by smaller trucks to be sold in Lancaster County.  There is a pre-existing 17,000 square-foot building on the property where Hege mixes the products and stores equipment.  In furtherance of his business, Hege has erected a 65’ by 80’ corncrib and three grain storage tanks on the property near the pre-existing building.

Section 27-2002.1.A of the Zoning Ordinance requires residents to obtain a zoning permit for the erection or alteration of a building, fence, or structure.   On January 1, 2024, the Township Zoning Officer issued a Zoning Enforcement Notice pursuant to Section 27-2002.1.A of the Township Zoning Ordinance to Hege due to his construction of the corn crib and grain tanks on the property without a permit.  After the issuance of the Zoning Enforcement Notice, Hege submitted an application for a zoning permit for the construction on January 29, 2024.  By letter dated February 12, 2024, the application was denied by the Zoning Officer on the basis that the commercial production and preparation of agricultural products was not a permitted use in the R-4 zoning district.  On February 12, 2024, the Zoning Officer issued a Zoning Enforcement Notice Cease and Desist under Sections 27-2002 and 27-10AO2 of the Ordinance for a change in use of the property without a zoning permit and for use not permitted in the R-4 zoning district.  Hege appealed to the ZHB and requested a special exception and/or variance.

The ZHB conducted a hearing on April 24, 2024.  At the hearing, Hege explained that the property is comprised of approximately 21.7 acres.  He uses 16 acres for farmland.  He estimated that tractor trailers bring products such as hay and grain in from his other farms about two to three times per week, and that smaller trucks transport products from the property for delivery to Lancaster County about twelve times during a six-day period.  The 17,000-square-foot building was previously used as a foundry, but that use was abandoned in the 1970’s.  Hege uses the building to mix the agricultural products and to store grain and hay products and equipment.  The corn crib constructed by Hege measures 65 by 80-feet and the grain tanks sit beside the corn crib under the overhang of its roof.  There is a well and a holding tank for sewage on the property which was used by the foundry. 

Hege testified that the condition of the property renders it inappropriate for any use permitted in an R-4 District.  He explained that the downhill slope of the property would make it difficult to hook up to sewer and that establishing a sewer connection would require a pump.   He also claimed that the existing 17,000 square-foot building would have to be knocked down as it cannot be converted to a permitted use and would be in the way of the construction of a dwelling or other structure permitted in the R-4 District.   Hege explained that the driveway is very narrow and inadequate for any of the permitted uses and that the land is not suitable for a development.  He explained that the corn crib and storage tanks are in the same area as the building near the driveway and acknowledged that these additions were made before he applied for the permit. 

Township Supervisor Dean Patches, who also serves on the Township Planning Commission, testified that the property was zoned agricultural before it was rezoned to R-4 on September 11, 2003.  The steel foundry was there prior to the agricultural zoning, so that had been a grandfathered use.  He explained that the Township had received numerous complaints from neighboring landowners regarding truck traffic and damage on the sides of the driveway and the opposite side of the road in the Township right-of-way, and to a telephone pole located near the driveway.  He presented numerous pictures depicting this damage as well as pictures of numerous trucks entering and leaving the property.  (Exhibits “11” through “17”)  He noted that it was impossible for a tractor trailer to stay within the right-of-way when turning to use the driveway. 

Patches observed that the presence of feed supplements on the property indicated that Hege was running a feed mill.  Patches opined that the preparation of feed for commercial sale constitutes a commercial retail business which is not permitted in the R-4 District. 

Patches explained that Hege was requesting a complete use variance which requires a showing of undue hardship.  He noted that sewer is available in the area and that a line runs down Mountville Drive.  He did acknowledge that the line might not be able to serve the property and that it might be necessary to run a line to the pumping station.  Patches observed that the Township had been consistent in maintaining the character of the R-4 District and presented several ZHB decisions which had denied previous requests for variances for other area properties.  (Exhibits “8”-“10”)

Hege’s next-door neighbor, Brenda Brubaker, complained that the trucks continually drive over her property and that her fence had been hit by the trucks twice.  In the past, she observed up to four tractor trailers entering the property on some days.  The truckdrivers had sometimes moved her garbage cans and other items in order to access Hege’s property.  Brubaker also noted that the trucks had torn up an embankment on the other side of the road.  Another neighboring landowner, Danielle Graby, testified that she had observed numerous trucks entering and leaving Hege’s property and had taken the pictures presented during Patches’ testimony.  Graby complained that she has to park her car in a certain place in order to block the trucks from hitting her sewer cap.  Samantha Coldren, who lives across the road from Hege’s property, testified that the trucks take such wide turns that the embankment in front of her house has been torn up.

At the conclusion of the hearing, the Zoning Hearing Board denied Hege’s appeal of his request for a permit and for approval of his request for Special Exception and Variance.  The ZHB determined that Hege’s activities were not permitted in the R-4 zoning district. 

The ZHB issued a notice of the decision on April 25, 2024 and a written decision on May 23, 2024.  The ZHB denied the appeal of the decision of the Zoning Officer.  It noted that the Zoning Ordinance does not provide for any uses permitted by special exception in the R-4 District and that Hege had not presented any evidence that his activities on the property constitute a specified permitted use, thus leaving only the request for a variance for the ZHB’s consideration.  It went on to deny the request for the use variance after reaching the following conclusions:

1.  There are no unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot or shape, or exceptional topography that there is an unnecessary hardship due to such conditions;
2. The Property can be developed in strict conformity with the provisions of the Zoning Ordinance for uses permitted pursuant to §27-1002A. 
3. Any unnecessary hardship was created by the Petitioner;
4. The variance would alter the essential character of the neighborhood.
5. The requested variance does not represent a minimum variance or the lest (sic) possible modification of the regulation that would afford relief.

(Decision of ZHB at p. 7)      

Hege has appealed the ZHB’s decision to this Court.  The matter was listed for the February 7, 2025 term of Civil Argument Court and is now before us for disposition.

In a case where the trial court takes no additional evidence in a zoning case, the scope of review is whether the zoning hearing board committed an abuse of discretion or an error of law.  Ruprecht v. Zoning Hearing Board of Hampton Township, 680 A.2d 1214 (Pa. Commw. 1996), appeal denied 699 A.2d 737 (Pa. 1997).  An abuse of discretion is present when the zoning board’s findings are not supported by substantial evidence.  Bernie Enter v. Hilltown Township Zoning Hearing Board, 657 A.2d 1364 (Pa. Commw. 1995), allocator denied 666 A.2d 1058 (Pa. 1995).  Substantial evidence is that relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached. Greth Dev. Group, Inc. v. Zoning Hearing Board, 918 A.2d 181, 185, n. 4 (Pa. Commw. 2007).  Substantial evidenceexists when a board issues an opinion which sets forth the essential findings of fact and sufficiently shows that the board’s action was reasoned rather than arbitrary.  Lando v. Springettsbury Township Zoning Hearing Board of Adjustment, 286 A.2d 924 (Pa. Commw. 1972).  If a board’s decision is legally sound and supported by substantial evidence, it will be upheld.  D’Amato v. Zoning Board of Adjustment of City of Philadelphia, 585 A.2d 580 (Pa. Commw. 1991). 

A “special exception” in a zoning ordinance is a use that is expressly permitted in a given zone as long as certain conditions detailed in the ordinance are found to exist.   Thus, a special exception is not an exception to the zoning ordinance, but rather a use to which the applicant is entitled, provided the specific standards enumerated in the ordinance for the special exception are met by the applicant. A special exception differs from a variance in that the latter is authority extended to a property owner to use the owner’s property in a manner forbidden by a zoning enactment, while the former allows an owner to put the property to a use that the ordinance expressly permits.

24:145 Pa.Jur. Property.

An applicant seeking a variance has the burden of showing (1) that unnecessary hardship will result if the variance is denied; (2) the hardship is shown to be unique or particular to the property as distinguished from the hardship arising from the impact of the zoning regulation on the entire district; and (3) the proposed use will not be contrary to public interest.  Chacona v. Zoning Hearing Board of Adjustment, 599 A.2d 255 (Pa. Commw. 1991).  With regard to a request for a use variance, the applicant must establish 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 v. City of Philadelphia, 97 A.3d 323 (Pa. 2014).  The burden of the applicant when seeking a use variance is heavy and should be granted “sparingly and only under exceptional circumstances.”  Pham v. Upper Marion Township Zoning Hearing Board, 113 A.3d 879 (Pa. Commw. 2015).  A zoning hearing board may only grant a variance when (1) there are unique physical circumstances or conditions particular to the property and the unnecessary hardship is due to such circumstances or conditions; (2) that due to such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance; (3) the unnecessary hardship was not created by the applicant; (4) the grant of the variance will not alter the essential character of the neighborhood or district, substantially or permanently impair the appropriate use or development of adjacent property owner or be detrimental to the public welfare; and (5) the grant of the variance will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation at issue.  53 P.S. §10910.2; Swatara Township Codified Ordinances, §27-2205. 

After reviewing the record, we find that the Zoning Hearing Board’s decision is supported by substantial evidence and was not arbitrary or capricious.  Hege’s crop farming is a grandfathered use which he may continue; however, the commercial use of the property as a feed mill did not begin until after the property was zoned to R-4.  It is not a use permitted in the R-4 District.  The ZHB correctly determined that the Zoning Ordinance provides for no special exceptions in the R-4 District and that Hege presented no evidence to establish that his current use of the property is one specifically permitted by the Ordinance.

We will also affirm the ZHB’s denial of Hege’s request for a variance. Hege argues that the ZHB erred because the “unique physical characteristics or conditions” of the property create unnecessary hardship which prevents him from utilizing the property in conformity with the R-4 District Zoning.  He argues that any of the permitted uses would require public sewer and that the difficulty with achieving a sewer connection due to the sloping topography precludes him from using the property for any of those permitted uses. 

The ZHB found that the topography of the property did not present an undue hardship.  Patches testified that public sewer access is available in the area and that a connection to the property could be accomplished.  He explained that, although the existing system may not handle a large capacity flow, it is sufficient to handle low impact development.  It was also noted that it would be possible to hook up to a pump station for larger capacity development.  Hege also acknowledged that it would be possible to hook the property up to public sewer with the use of a pump. 

Hege also argues that the presence of the pre-existing 17,000 square-foot building renders it impossible for him to use the property in compliance with the R-4 zoning requirements.  However, he offered no explanation as to why the 17,000 square-foot building could not be converted for a permitted use.  He cannot claim that the corncrib and the grain storage tanks render him unable to use the property for a permitted means or that he was not responsible for creating any hardship as he admits that he erected those structures without seeking a permit.  He also undertook his feed mill activities without determining whether his business was permitted in the R-4 District. 

There was also ample evidence produced at the hearing to indicate that permitting Hege’s commercial enterprise to continue would alter the essential character of the surrounding neighborhood, hinder the use of adjacent properties, and be detrimental to the public welfare.  The adjacent properties are residential and the truck traffic entering and exiting the property has caused the residents to suffer substantial annoyance and property damage.   In addition, the evidence also demonstrated that the trucks have damaged utility poles and the Township’s right-of-way along Mountville Drive.  Although Hege may continue to have some trucks entering and leaving his property in connection with his farming activities, we expect that the cessation of his feed mill business will significantly reduce the truck traffic associated with that activity and will greatly reduce the inconvenience, annoyance and damage to the neighboring landowners.

Because there was substantial evidence to support the conclusions of the ZHB, we find no error and will affirm its decision.