Expanded Horizons LLC vs. City of Lebanon Zoning Hearing Board, et al No. 2013-02515

 

Civil Action – Zoning – Scope of Review – Abuse of Discretion – Variance by Estoppel – Rooming Houses – Group Homes – Temporary Variance – Appeal from Zoning Hearing Board.

Pennsylvania has uniquely recognized the equitable underpinning of zoning variances, as this Commonwealth has developed an extensive body of law governing a principle that has become known as variance by estoppel.

When reviewing a decision from a zoning hearing board, the Court’s scope of review is plenary if it conducts a factual hearing. However, when a Trial Court receives no additional or supplemental evidence, its scope of review is to ascertain whether the Board abused its discretion. In other words, the Court must evaluate whether the decision of the Zoning Hearing Board is legally sound and supported by substantial evidence. Substantial evidence has been described as information that a reasonable person would view as adequate to support a conclusion.

Based upon the Court’s review of the record, it could not and would not overturn the Board’s well-reasoned and factually supported conclusion that Appellant’s properties were rooming houses and not group homes.

Variance by estoppel is a doctrine that applies when a property owner uses real estate contrary to applicable zoning ordinances for an extended period of time without objection by municipal authorities.

In order to establish variance by estoppel, a party must show that the municipality’s failure to enforce the law over a long period of time, or some form of acquiescence by the municipality to the owner’s unlawful use; the applicant’s good faith throughout the proceeding; and innocent reliance by the landowner as evidenced by substantial expenditures.

Mere inaction in enforcing a zoning ordinance without more, will not support application of the doctrine.

A municipality has a vested interest in monitoring or even limiting the number of rooming houses within its boundaries. The methodology by which most cities manage growth and allocate city services is through enforcement of Zoning Codes.

Granting a permanent variance by estoppel for the landowner of properties to employ those buildings as rooming houses in perpetuity was not a remedy that the Court was willing to consider.

A temporary variance is a concept consistent with the Pennsylvania Municipality Zoning Code, which states that a variance should represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

Pennsylvania appellate courts have approved temporary variances when the circumstances supported such relief.

Under the facts of this case, the Court perceived a temporary use variance to be the perfect remedy to afford Appellant the relief it seeks without subjecting the surrounding neighborhood of each property to potentially perilous permanent rooming houses.

Consequently, the Court held that Appellant had established all of the legal requirements to invoke the doctrine of variance by estoppel. However, it also held that a permanent variance by estoppel could adversely affect the character of the neighborhoods surrounding Appellant’s properties. Therefore, the Court ordered a temporary variance by estoppel for a period of four years provided that the properties continue to be used as they are currently in the Step Into Life Program. After the four year period, the Court placed the usage of the properties in the hands of the Board for its consideration during the years 2018 and beyond.

Appeal from Zoning Hearing Board. C.P. of Lebanon County, Civil Action-Law, No. 2013-02515.

Jeffrey P. Ouellet, Esquire, for Expanded Horizons

Keith L. Kilgore, Esquire, for City of Lebanon Zoning Hearing Board

Donna Long Brightbill, Esquire, for City of Lebanon

ORDER OF COURT

AND NOW, to wit, this 18^th day of June, 2014, in accordance with the attached Opinion, the Order of this Court is as follows:

1. The request of Expanded Horizons, LLC (hereafter “APPELLANT”) to classify its usage of properties located 108 East Weidman Street, 305 Canal Street and 23 Mifflin Street (hereafter collectively referred to as “PROPERTIES”) as group homes instead of rooming houses is DENIED. The decision of the Lebanon City Zoning Board to characterize APPELLANT’s PROPERTIES as rooming houses is AFFIRMED.

2. APPELLANT’s request for a permanent variance by estoppel is DENIED.

3. For reasons articulated in more detail within the body of the attached Opinion, this Court will award APPELLANT with a temporary variance by estoppel as follows:

(a) This temporary variance by estoppel will extend for a period of four years provided that PROPERTIES continue to be used for purposes of facilitating the Step Into Life Ministries Program.

(b) At or before the expiration of the four year temporary variance we have granted today, APPELLANT will be at liberty to apply to the Lebanon City Zoning Board for an extension of its temporary variance. The City Zoning Board shall then analyze the circumstances existing at the time of APPELLANT’s request and will be at liberty to render any decision deemed appropriate.

(c) Should APPELLANT or any subsequent purchaser cease to use PROPERTIES for purposes of conducting the Step Into Life Program as it currently is being operated, leave is granted for the City of Lebanon to file a request with this Court to terminate the temporary variance we have granted by this decision.

BY THE COURT,

, J.

BRADFORD H. CHARLES

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW NO. 2013-02515

EXPANDED HORIZONS, LLC, Plaintiff

v.

CITY OF LEBANON ZONING HEARING BOARD, Defendant

and

CITY OF LEBANON, Intervenor

APPEARANCES:

Jeffrey P. Ouellet, Esquire For Expanded Horizons

Keith L. Kilgore, Esquire For City of Lebanon Zoning Hearing Board

SPITLER & KILGORE

Donna Long Brightbill, Esquire For City of Lebanon

SIEGRIST, KOLLER, BRIGHTBILL, LONG AND FEEMAN

Opinion, Charles, J., June 18, 2014

Zoning variances are grounded upon principles of equity. One commentator has described a variance as “an escape hatch from the literal terms of the ordinance which, if strictly applied, would [cause a property owner hardship].” 83 Am.Jur.2d, Zoning and Planning, Section 830 at 700. Pennsylvania has uniquely recognized the equitable underpinning of zoning variances, as this Commonwealth has developed an extensive body of law governing a principle that has become known as “variance by estoppel.” The specific question before this Court today is whether we have the authority to grant a temporary variance by estoppel in order to respond to what we perceive to be an injustice created by strict enforcement of the City of Lebanon Zoning Ordinance. For reasons that follow, we hold today that we possess such authority.

I. FACTS

Expanded Horizons, LLC (hereafter “APPELLANT”) owns real estate located on Mifflin Street, East Weidman Street and Canal Street within the City of Lebanon (When referred collectively, these properties will be called “PROPERTIES”). The Mifflin Street and Canal Street parcels are contained within the residential high density district within the City of Lebanon. The East Weidman Street property is within the residential medium density zone. For years, PROPERTIES have been used as residences for individuals within the Step Into Life Ministries Program. Specifically, PROPERTIES are used to provide homes for disabled military veterans.

APPELLANT’s property at 108 East Weidman Street has six rooms which are rented to individual persons. The Canal Street property has five rooms that are also individually rented. The Mifflin Street house similarly contains five individually rented rooms. Residents of APPELLANT’s properties pay rent, and they can stay in PROPERTIES for as long as they choose. Step Into Life staff generally oversees the day-to-day activities of the residents, but does not employ individuals to live full-time in each building.

APPELLANT purchased PROPERTIES in 2009. When APPELLANT purchased PROPERTIES, the Buyer’s Notification Certificates listed each as a “single family dwelling.” (See Exh. 7). APPELLANT then renovated PROPERTIES to create individual rooms for individual persons. (N.T. 58-60). APPELLANT did not obtain a building permit for these renovations. (N.T. 60).

Between 2009 and 2012, APPELLANT’s PROPERTIES were used to facilitate the Step Into Life Ministries Program. Between 2009 and 2012, APPELLANT registered its usage with the City of Lebanon. The City charged APPELLANT a rental property fee for each of the rooms located in its buildings and granted APPELLANT a license to rent each of those rooms. APPELLANT faithfully paid the licensing fee charged by the City of Lebanon between 2009 and 2012. (N.T. 22-23; 34-37; 55).

In January of 2013, APPELLANT sought to sell PROPERTIES to Pastor Nathaniel Johnson, who operated the Step Into Life Program. Pastor Johnson met with a Lebanon City Zoning Officer to discuss the prospective sale. As the zoning officer was researching PROPERTIES, he came to the realization that they were not being used in accordance with the applicable zoning ordinance. Therefore, on February 13, 2013, APPELLANT received a letter from the City of Lebanon advising that PROPERTIES were in violation of the City’s Zoning Ordinance.

Under the City of Lebanon Zoning Ordinance, there is a difference between the “group home” designation and designation as a “rooming house.” The former is for a permitted use by right; the latter would require a variance. The City of Lebanon took the position that APPELLANT’s PROPERTIES were being impermissibly used as rooming houses. APPELLANT and Pastor Johnson argued that PROPERTIES were being utilized as group homes. By a letter dated May 14, 2013, the Lebanon City Zoning Officer ruled that APPELLANT’s PROPERTIES did not fall within the category of a group home because the residents were “in transition” and PROPERTIES offered only a “short term or temporary environment until a more independent lifestyle can be achieved.” (Land Use Appeal; Exh. A).

APPELLANT filed a permit application seeking a determination that the Step Into Life Ministries Program could continue to operate on PROPERTIES as group homes. (Application attached to Land Use Appeal as Exh. B). On July 31, 2013, the zoning officer made an official determination that PROPERTIES do not qualify as group homes. The officer stated that “a group home is a protected setting established for the permanently disabled/impaired” and that “a temporary housing setting for someone in transition or recovery does not fall under the group home protection.” (Land Use Appeal; Exh. C). The Lebanon City Zoning Officer then issued a Notice of Violation and Cease and Desist Order.

APPELLANT appealed the Cease and Desist Order to the Lebanon City Zoning Hearing Board (hereafter “BOARD”) on August 22, 2013. Hearings before the BOARD were conducted on October 10, 2013 and October 16, 2013. On November 25, 2013, the BOARD issued its formal decision determining that APPELLANT’s PROPERTIES were being employed as rooming houses. Thus, APPELLANT’s request to continue using the structures for the Step Into Life Ministries Program was denied.

There is a “back story” regarding the use of rooming houses in the City of Lebanon that has become known to us via other zoning appeals. Apparently, many landowners in the City of Lebanon have begun to transform single family dwellings into de facto rooming houses by renting single rooms to individuals and families, many of whom are transient individuals. Predictably, the structures that have been turned into de facto rooming houses quickly deteriorate because the transient individuals have no vested interest in maintaining the properties. In some instances, dozens of people are crammed into spaces designed for only a few. Noise, late night parties, and crime eventually follow. These de facto rooming houses have created urban blight and have begun to negatively transform many neighborhoods in the City of Lebanon. In the case of Pidgorodetskiy v. Zoning Hearing Board of City of Lebanon, C.P.Leb.Co. 2013-02185 (Charles, J., 2/26/14), this Court affirmed the authority of the City of Lebanon to regulate and limit the number of rooming houses within its boundaries. We stated:

A city such as Lebanon has a vested interest in limiting the number of rooming houses that exist within City limits. By their very nature, rooming houses serve transient individuals, many of whom lack financial resources to afford a more stable place to live. Without casting a stone at APPELLANT’s management of his own rooming houses, we have encountered a multitude of different disputes involving rooming houses. In more than one case, drug dealers used rooming houses to market their product. On a multitude of different occasions, tenants at rooming houses have created nuisances by playing loud music, creating damage to property and/or discarding garbage in an unacceptable manner. While rooming houses can contribute to society by providing young and low income people with an affordable place to live, allowing rooming houses to proliferate like weeds will unquestionably alter the character of a community and neighborhood.

In the case now before this Court, APPELLANT filed a Notice of Appeal from the BOARD’s decision. On January 15, 2014, a transcript from the BOARD’s hearing was filed with this Court. On March 28, 2014, we received oral argument on behalf of both APPELLANT and the BOARD. Following oral argument, we directed that both parties file Supplemental Briefs within thirty days regarding the question of whether a variance by estoppel could be applied “without creating a permanent change of use for the affected property.” Neither side filed Briefs in response to our directive. Therefore, we have proceeded to analyze the issue now before us and will author this Opinion in support of our decision to grant a temporary variance by estoppel in order to permit temporary continued use of APPELLANT’s PROPERTIES for purposes of the Step Into Life Ministries Program.

II. DISCUSSION

When reviewing a decision from a zoning hearing board, our scope of review is plenary if we conduct a factual hearing. See, e.g. Berryman v. Wyoming Borough Zoning Hearing Board, 884 A.2d 386 (Pa.Cmwlth. 2005). However, when a Trial Court receives no additional or supplemental evidence, our scope of review is to ascertain whether the Board abused its discretion. See Kurtis Investment Co. v. Zoning Hearing Board of West Mifflin, 592 A.2d 813 (Pa.Cmwlth. 1991). In other words, we must evaluate whether the decision of the Zoning Hearing Board is “legally sound” and “supported by substantial evidence.” Substantial evidence has been described as information that a reasonable person would view as “adequate to support a conclusion.” Sweeny v. Zoning Hearing Board of Lower Merion Township, 626 A.2d 1147, 1150 (Pa. 1993).

In this case, APPELLANT proffers several arguments. First, it argues that the BOARD abused its discretion by defining PROPERTIES as rooming houses and not group homes. Second, APPELLANT argues that the BOARD erred by failing to award a variance based upon estoppel. We will address each of these issues separately.

A. Group Home v. Rooming House

Under Lebanon City’s Zoning Code, “rooming houses” and “group homes” are very different. Lebanon’s Zoning Code defines the terms as follows:

(1) “Rooming house means a building, or part therein, other than a hotel, motel or boarding house, in which sleeping rooms are available for hire as lodging, but without meals or linen service.” (Zoning Code, Section 1303.19(a)(2)).

(2) A group home is a “home licensed and approved for use by individuals who are physically, developmentally or behaviorally disabled. Such disability shall include those which substantially limit one or more of such person’s major life activities…but such term does not include the use of or addiction to a controlled substance.” (Zoning Code, Section 1303.32.1).

The BOARD found that PROPERTIES in question fell within the definition of rooming houses and not group homes. There was substantial evidence to support this finding. For example, APPELLANT’s PROPERTIES were not licensed as a group home. No food service or linen service was provided to residents. More important, the stated purpose of APPELLANT’s ministry was to provide a place where “recovery towards sobriety” could be accomplished.” (See Exh. 10). As such, PROPERTIES were used as places of temporary housing. By virtue of the above, there is no way that the Step Into Life facilities could be considered “group homes” as that term is defined by the Lebanon City Zoning Code.

On the other hand, APPELLANT’s PROPERTIES are used precisely as contemplated by the Zoning Code’s definition of a “rooming house.” PROPERTIES provided temporary housing for transient individuals. No meals were provided. No linen service was provided. No on-site supervision was provided for residents. Moreover, the stated goal of the Step Into Life Program was to transition its residents to live independently on their own. This is a goal that would not likely be achievable for residents of the type of group home contemplated by the Lebanon City Zoning Ordinance. (N.T. 81; Exh. 10).

Based upon our review of the record, we cannot and will not overturn the BOARD’s well-reasoned and factually supported conclusion that APPELLANT’s PROPERTIES were rooming houses and not group homes. Accordingly, the first two issues raised by APPELLANT in its Brief will be rejected.

B. Variance by Estoppel

Variance by estoppel is a doctrine that applies when a property owner uses real estate contrary to applicable zoning ordinances for an extended period of time without objection by municipal authorities. See Springfield Township v. Kim, 792 A.2d 717 (Pa.Cmwlth. 2002). In order to establish variance by estoppel, a party must show:

(1) The municipality’s failure to enforce the law over a long period of time, or some form of acquiescence by the municipality to the owner’s unlawful use;

(2) The applicant’s good faith throughout the proceeding; and

(3) Innocent reliance by the landowner as evidence by substantial expenditures.

See Springfield Township, supra.; Teazers Inc. v. Zoning Board of Philadelphia, 682 A.2d 856 (Pa.Cmwlth. 1996). Mere inaction in enforcing a zoning ordinance without more, will not support application of the doctrine. Springfield Township., supra.

APPELLANT’s variance by estoppel argument has far more visceral appeal than the group home argument referenced above. In this case, APPELLANT purchased PROPERTIES in 2009 in order to use them for purposes of conducting the Step Into Life Ministry Program. At no time did APPELLANT hide its use of PROPERTIES. In fact, representatives of the City of Lebanon were approached by APPELLANT with respect to its usage of PROPERTIES as transitional rehabilitation facilities. Knowing the use to which PROPERTIES would be put, the City charged a fee for use of each room. For three years, APPELLANT faithfully paid the fee charged by the City. Moreover, APPELLANT expended significant funds to renovate the structure to facilitate its intended purpose. (N.T. 58-60).

In the case of Pidgorodetskiy v. Zoning Hearing Board of City of Lebanon, C.P.Leb.Co. 2013-02185 (Charles, J., 2/26/14), we rejected an appellant’s variance by estoppel argument because he modified his property without obtaining a building or zoning permit. In part because the appellant was determined by the Zoning Hearing Board to be an “experienced and sophisticated land developer,” we held that the alterations of his property without a proper variance constituted lack of good faith. This lack of good faith, by itself, required us to reject the appellant’s variance by estoppel argument.

In stark contrast, APPELLANT in this case is neither a sophisticated nor experienced real estate developer. While APPELLANT did not properly cross his t’s and dot his i’s when it purchased PROPERTIES in question, neither did APPELLANT seek to hide its usage of PROPERTIES from city officials. In fact, APPELLANT was very transparent with respect to its use of PROPERTIES as transitional recovery homes for drug and alcohol addicts. For years after APPELLANT purchased PROPERTIES, the City accepted fees based upon APPELLANT’s transparently stated use of the buildings and did not object to the manner in which APPELLANT conducted its affairs. Unlike Pidgorodetskiy, we cannot and will not declare that APPELLANT in this case failed to use good faith.

In many ways, equity favors APPELLANT. As noted above, APPELLANT did not attempt to hide its use of PROPERTIES. In fact, APPELLANT paid the City of Lebanon a fee for each of the rooms it rented to its residents. In the three years during which APPELLANT conducted the Step Into Life Ministry without objection by the City, that ministry helped many veterans who had substance abuse issues. Moreover, it did so without materially affecting the character of the neighborhood in which the buildings were located. In short, we can conceive of few problems – and we perceive many benefits – of continuing the status quo usage of APPELLANT’s buildings.

On the other hand, we are very sympathetic with the City’s desire to manage and limit the number of rooming houses contained within City limits. As we stated in Pidgorodetskiy:

A municipality such as the City of Lebanon has a vested interest in monitoring or even limiting the number of rooming houses within its boundaries. The methodology by which most cities manage growth and allocate city services is through enforcement of Zoning Codes. Moreover, we cannot forget that before the Lebanon City Zoning Code was created, the proposed Code was advertised to all City residents and was voted upon by their elected representatives. For us to declare today that the City of Lebanon had no right to enforce its own limitations upon rooming houses would be legally unsupportable and grossly unfair to the law abiding taxpaying citizens of Lebanon City.

(Slip Opinion at 13). Given the above recognition, granting a permanent variance by estoppel for the landowner of PROPERTIES to employ those buildings as rooming houses in perpetuity is not a remedy that we are willing to consider.

In conducting our legal research, we searched diligently for a way to be fair to APPELLANT without creating a de facto permanent variance that would enable future less scrupulous landowners to utilize PROPERTIES in a manner that would be adverse to the community and to neighborhoods. As we conducted our research, we discovered a common law concept known as a “temporary variance.” This concept is consistent with Pennsylvania’s Municipality Zoning Code, which states that a variance should “represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.” 53 P.S. § 10910.2(a)(5).

Temporary variances have been described at length within various treatises. For example, one treatise states:

A variance or special permit may be conditioned to expire within a certain time. The courts have approved variances conditioned to expire in two years, five years, ten years, fifteen years, and twenty years. The variances conditioned to be effective only during a certain part of the year (for example, during the summer) is permissible, where the limitation bears a reasonable relation to the public safety and convenience.

The duration of a variance may be limited by conditions other than the lapse of a specific period of time. The use of land may be permitted, for example, until development of the area permits profitable use in conforming with the zoning ordinance. Such a temporary variance of uncertain duration is useful to permit the productive employment of property in a potentially residential area which has not been fully developed. The landowner is permitted to maintain a non-residential use as long as the area remains unsuitable for its intended residential purpose.

83 Am.Jur. 2d; Zoning and Planning, Section 941 (Temporary Variance; generally). In perhaps the most authoritative treatise on Pennsylvania zoning law, temporary variances are described as follows:

Zoning ordinances sometimes contain provisions permitting the Zoning Board to issue temporary variances under certain circumstances. Indeed, the power to grant a variance limited in time may exist as part of the general powers of a zoning hearing. Certainly, temporary variances can be a suitable remedy if used to reduce hardships of a temporary nature, or as an aid in transitional situations. Indeed, the “minimum variance” rule…indicates that a zoning board should not grant a permanent variance on the basis of a temporary hardship…Since a temporary variance is less of an invasion of the legislative plan than is a permanent variance of the same scope, the courts may allow a zoning board greater freedom to exercise such variances, if they are truly temporary.

Robert S. Ryan, Pennsylvania Zoning Law in Practice, Vol. 2 at Section 6.2.15.

Pennsylvania appellate courts have approved temporary variances when the circumstances supported such relief. In 8131 Roosevelt Corp. v. Zoning Board of City of Philadelphia, 794 A.2d 964 (Pa.Cmwlth. 2002), the Court denied a permanent variance, stating that it would grant one that expired in two years. The Commonwealth Court stated that the two year variance “did not purport to establish a permanent determination…” Stating that the temporary variance represented the “minimum variance that will afford relief,” the Commonwealth Court determined that the compromise of a temporary use variance would not alter the essential character of the neighborhood, while still affording the Appellant the “minimum variance that will afford relief.” Id. at fn. 3.

In 1916 Delaware Tavern v. Zoning Board of Philadelphia, 657 A.2d 63 (Pa.Cmwlth. 1995), a variance was sought by an adult entertainment facility. The Zoning Board granted a temporary variance. The landowner appealed on the basis that the variance should have been made permanent. A civic organization appealed because it contested the grant of any variance whatsoever. Although the appeal to the Commonwealth Court focused upon Pennsylvania Liquor Code issues, the question of whether a temporary variance was a viable remedy was never questioned by the Court.

In an older but more specific case, the Pennsylvania Superior Court affirmed a Trial Court’s grant of a temporary non-conforming use variance. The Superior Court stated that such relief “will benefit the public welfare” and “promote proper development” consistent with the intent of the ordinance. As a result, the Superior Court approved the Trial Court’s decision to grant a “temporary non-conforming use permit.” The Court specifically stated:

We do not believe that the framers of the [Zoning Ordinance] intended so narrow a construction to be placed on the [Zoning Board’s] powers as would prevent the granting of the temporary non-conforming use in this case. Had the use granted been permanent, rather than temporary, a different problem would be before us.

Gish v. Exley, 34 A.2d 925, 927 (Pa.Super. 1923).

Based upon all of the above, we conclude that temporary variances are a viable concept within the Commonwealth of Pennsylvania. Indeed, we conclude that temporary variances can in some cases be preferred as a way to award the “minimum variance” needed to afford relief. Under the facts of this case, we perceive a temporary use variance to be the perfect remedy to afford APPELLANT the relief it seeks without subjecting the surrounding neighborhood of each property to potentially perilous permanent rooming houses.

Based upon the foregoing, we hold that APPELLANT has established all of the legal requirements to invoke the doctrine of variance by estoppel. However, we also hold that a permanent variance by estoppel could adversely affect the character of the neighborhoods surrounding APPELLANT’s PROPERTIES. Therefore, we will award a temporary variance by estoppel. In so doing, we will craft a fact-specific order intended to afford the minimum relief feasible to avoid injustice to APPELLANT while preserving the character of the neighborhoods at which PROPERTIES are located.

In outline form, the decisions we will be rendering, and the reasons therefore, are as follows:

(1) For at least the foreseeable future, APPELLANT will be able to continue its use of PROPERTIES in question as transitional housing for veterans with a substance abuse history. By so doing, we enable Step Into Life Ministries Program to continue operating for the benefit of veterans who have served our country and who need transitional support and assistance so they can move forward productively in their own lives. In addition, permitting the Step Into Life Program to continue temporarily will enable APPELLANT to enjoy the benefit and utility of the renovation investment spent by APPELLANT on PROPERTIES. If we were to order that the Step Into Life Program immediately close its doors, most of the investment money spent to renovate APPELLANT’s PROPERTIES would be essentially wasted.

(2) The duration of the temporary variance we will award today will be for a period of four years provided that PROPERTIES continue to be used as they are currently. At the end of the four year period, the Lebanon City Zoning Board shall determine whether to extend the temporary use variance or terminate it. If the latter occurs, then the Step Into Life Ministry Program will have to close its doors. However, over the next four years, APPELLANT will be able to recoup more of the money it invested in renovation of PROPERTIES and APPELLANT will be able to obtain revenue over the next four years that will enable it to reconvert PROPERTIES into salable single family dwellings. If APPELLANT can prove over the next four years that its continued operation of the Step Into Life Ministries Program will not adversely affect the character of the neighborhood, the BOARD would be at liberty to continue to grant a temporary variance for an additional specified period of time.

(3) By awarding only a temporary variance, we eliminate the risk that APPELLANT’s PROPERTIES would be sold to a developer who would no longer maintain the Step Into Life Program, but would instead be less scrupulous about how PROPERTIES are maintained and less selective about the nature of those to whom rooms are leased. Essentially, our decision today is intended to preserve the essential character of the neighborhoods at which APPELLANT’s PROPERTIES are located.

We suspect that neither side will be pleased with the decision we have rendered above. So be it. Under the unique facts of this case, it would simply be unfair to require APPELLANT to close the doors of Step Into Life given that it has expended investment monies and has openly operated its program with the tacit blessing of the City for the past three years. On the other hand, neither would it be fair to the residents of the City of Lebanon for PROPERTIES to be sold and converted to garden-variety rooming houses that would unquestionably impact the character of the neighborhoods involved far more than the Step Into Life Program currently does. We have found in the concept of “temporary variance” the remedial tool needed to prevent both types of injustices referenced above. We will therefore employ the equitable concept of temporary variance by estoppel. The BOARD’s decision to deny APPELLANT the use variance he sought will be denied, at least for the next four years provided that PROPERTIES continued to be used to house the Step Into Life Program. Thereafter, we will again place usage of PROPERTIES in the hands of the BOARD for its consideration during the years 2018 and beyond. An Order to accomplish this decision will be entered today’s date.