Judges Opinions, — January 9, 2024 13:54 — 0 Comments

Sidney Hostetter and Evelyn Koppel, his wife, v. South Londonderry Township Zoning Hearing Board, Corey Andrew and Anne Andrew, his wife

Sidney Hostetter and Evelyn Koppel, his wife, v. South Londonderry Township Zoning Hearing Board, Corey Andrew and Anne Andrew, his wife

 

Civil Action-Property Law-Constitutional Law-Zoning-Variance-Dimensional-Use-Discretion of the Zoning Hearing Board-Garage on Residential Property-Setbacks-Unnecessary Hardship

 

Corey and Anne Andrew (“the Andrews”) filed a request for a variance to reduce the front yard setback from forty (40) feet required by an Ordinance to twenty-one (21) feet to construct a garage in a low density residential zoning district.  The South Londonderry Township Zoning Hearing Board granted the request after hearing.  Sidney Hostetter and Evelyn Koppel (“Appellants”) who own the adjoining property have filed an appeal from the Zoning Hearing Board’s decision.

 

  1. When the Court does not take any additional evidence, appellate review of a decision of a zoning hearing board is limited to determining whether the board committed an abuse of discretion or an error of law.

 

  1. An abuse of discretion occurs when the board’s findings are not supported by substantial evidence.

 

  1. The zoning hearing board is the entity charged with the interpretation and application of zoning ordinances.

 

  1. The zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference.

 

  1. The party seeking a variance bears the burden of proof.

 

  1. The board may grant a variance if the following findings are made: (1) there are unique physical circumstances or conditions of the property and unnecessary hardship is due to such conditions; (2) there is no possibility that the property can be developed in strict conformity with the ordinance due to such conditions; (3) the unnecessary hardship has not been created by the landowner; (4) the variance will not alter the essential character of the neighborhood, substantially impair the use or development of the adjacent property or be detrimental to public welfare; and (5) the variance represents the minimum variance that will afford relief and the least modification possible of the regulation.

 

  1. When seeking a dimensional variance within a permitted use, the owner is asking for a reasonable adjustment of the regulations to use the property consistent with the regulations.

 

  1. The grant of a dimensional variance is of lesser moment than the grant of a use variance, as the latter involves using the property in a manner wholly outside the regulation.

 

  1. The Zoning Hearing Board’s findings of unique physical circumstances or conditions of the property with the unnecessary hardship created by the conditions is supported by the record establishing that a natural swale, mature trees and inadequate access with a steep slope prevented construction of the garage at another part of the property consistent with the requirements of the Ordinance.

 

  1. Where there is no evidence that the Andrews modified the property to create the natural swale, mature trees or slope of the property with those conditions existing when they purchased the property years ago, the record establishes that the Andrews did not create the unnecessary hardship.

 

  1. In light of the fact that the design of the proposed garage would appear similar to other homes in the area and would fit the character of the neighborhood, would not impede the view from either side of the property and was supported by the testimony of several neighbors in the area, the finding that the variance would not alter the essential character of the neighborhood or district or be detrimental to public welfare is supported by substantial evidence.

 

  1. Since the natural swale, mature trees and inadequate access with sloping preclude construction of the garage at other parts of the property and the size of the proposed garage is tailored to store family vehicles and trailers that otherwise would violate another Ordinance when stored outside of a garage, the relief requested reflects the minimum variance affording necessary relief.

 

L.C.C.C.P. No. 2022-00125, Opinion by Charles T. Jones, Jr., Judge, December 30, 2022.

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

SIDNEY HOSTETTER and                        :

EVELYN KOPPEL, his wife,                      :

Appellants,                                                 :

:

  1. :                  Docket No.: 2022-00125

:

SOUTH LONDONDERRY TOWNSHIP     :

ZONING HEARING BOARD,          :

COREY ANDREW, and                    :

ANNE ANDREW, his wife,                         :

Appellees.

 

ORDER OF COURT

AND NOW, this 30th day of December, 2022, after careful consideration of the record, the land use appeal is DENIED, the decision of the South Londonderry Township Zoning Hearing Board is AFFIRMED, and the land use appeal is DISMISSED.

 

BY THE COURT:

 

_______________________, J.

CHARLES T. JONES, JR.

 

CTJ/adj

cc:     Edward J. Coyle, Esquire

Richard B. Druby, Esquire

Corey Andrew, Self-Represented Litigant

Anne Andrew, Self-Represented Litigant

Court Administration

Anthony D. Juliani, Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

SIDNEY HOSTETTER and                        :

EVELYN KOPPEL, his wife,                      :

Appellants,                                                 :

:

  1. :                  Docket No.: 2022-00125

:

SOUTH LONDONDERRY TOWNSHIP     :

ZONING HEARING BOARD,          :

COREY ANDREW, and                    :

ANNE ANDREW, his wife,                         :

Appellees.

 

APPEARANCES:

Edward J. Coyle, Esquire                   For Appellants

Richard B. Druby, Esquire                           For Appellee South Londonderry

Township Zoning Hearing Board

Corey Andrew                                             Self-Represented Litigant

Anne Andrew                                              Self-Represented Litigant

 

OPINION BY JONES, JR. J.:

Before this Court is a land use appeal.  After careful consideration of the record and for the reasons set forth herein, the land use appeal is denied, the decision of the South Londonderry Township Zoning Hearing Board (“ZHB”) is affirmed, and the land use appeal is dismissed.

 

  1. FACTUAL AND PROCEDURAL HISTORY

Corey Andrew and Anne Andrew (collectively “Andrews”) are the owners of

and reside at 131 Valley Road, Mt. Gretna, Pennsylvania 17064 (“Subject Property”).  The ZHB is a municipal body with an address of 27 W. Market Street, Palmyra, Lebanon County, Pennsylvania 17078.  Sidney Hostetter and Evelyn Koppel (collectively “Appellants”) are the owners of and reside at 125 Valley Road, Mt. Gretna, Pennsylvania 17064.  The Andrews and the Appellants are neighbors.

This matter arises from a request by the Andrews for a variance from Section 210.H. of the South Londonderry Township Zoning Ordinance of 2013, and more specifically, a variance to reduce the front yard setback to twenty-one feet from the required forty feet.  The Andrews sought this variance in order to construct a new proposed garage.  The Subject Property is located in a Low Density Residential Zoning District.

The ZHB held a public hearing on the Andrews’ variance request on November 22, 2021.  The Appellants requested and were granted party (opponent) status at this hearing, as their residence borders the Subject Property.  On January 5, 2022, the ZHB issued their decision granting the Andrews’ variance request.  The Appellants appealed the ZHB’s decision on February 3, 2022.  The Appellants argued in their land use appeal that the ZHB erred and/or abused their discretion in granting the Andrews’ variance request, and the Appellants requested that this Court overturn that decision by the ZHB.  A writ of certiorari was issued on February 3, 2022.

On February 8, 2022, the Appellants filed a petition to stay issuance of building permit (“Petition to Stay”).  On February 9, 2022, an Order was entered that issued a rule to show cause as to why the building permit should not be stayed pending the appeal.  The return of the writ of certiorari was filed on February 23, 2022.  On February 25, 2022, the Andrews filed a response to the Petition to Stay which opposed the stay.  The ZHB did not file a response to the rule to show cause entered on February 9, 2022.

The Appellants filed a motion for determination without hearing on March 10, 2022.  On March 11, 2022, an Order was entered that issued a rule to show cause as to why the matter should not be decided upon briefs and argument rather than being scheduled for further testimony.  The Appellants filed a petition to list for Argument Court and to stay issuance of building permit in the interim on March 25, 2022.  On March 28, 2022, an Order was entered directing that this matter be listed for the next available term of Argument Court and that issuance of the subject building permit and construction of the subject improvements be stayed in the interim.  The matter regarding the Petition to Stay was listed for the May 2022 term of Argument Court, and the matter was to be decided on briefs.

On April 7, 2022, the Appellants filed a motion for rule absolute regarding the rule to show cause as to why the matter should not be decided upon briefs and argument rather than being scheduled for further testimony.  The Appellants filed their brief in support of the Petition to Stay on April 8, 2022.  On April 8, 2022, an Order was entered that granted the motion for rule absolute.  The ZHB filed the brief of the ZHB in response to the Appellants’ brief in support of the Petition to Stay on April 22, 2022.  The Andrews did not file a response to the Appellants’ brief in support of the Petition to Stay.  No oral argument was held on May 6, 2022, as the matter was to be decided on the briefs.

On July 11, 2022, the ZHB filed a praecipe for disposition regarding the Appellants’ land use appeal.  On July 12, 2022, an Order of Court was entered directing the Prothonotary of Lebanon County to list this case for the next available Argument Court date and to notify all parties of the briefing schedule.  This matter regarding the land use appeal was listed for the September 2022 term of Argument Court, and oral argument was requested.

On August 2, 2022, Appellants filed a brief in support of their land use appeal.  This Court entered an Order of Court and accompanying Opinion that granted the Petition to Stay on August 3, 2022.  On August 19, 2022, the ZHB filed a brief in opposition to Appellants’ land use appeal.  The Andrews’ filed their brief on August 19, 2022, as well.  On August 26, 2022, Appellants filed a reply brief to the brief filed by the ZHB and to the brief filed by the Andrews.  This Court held oral argument on this matter during Argument Court on September 2, 2022.  This matter is ripe for disposition.

 

  1. STANDARD OF REVIEW

If the record below includes findings of fact made by the governing body, board, or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, then the findings of the governing body, board, or agency shall not be disturbed by the court if supported by substantial evidence.  53 P.S. § 11005-A.  When the court did not take any additional evidence, appellate review of the decision of a zoning hearing board is limited to determining whether the board committed an abuse of discretion or an error of law.  Marshall v. City of Philadelphia (“Marshall”), 97 A.3d 323, 331 (Pa. 2014); Township of Exeter v. Zoning Hearing Board of Exeter Township (“Exeter”), 962 A.2d 653, 659 (Pa. 2009); Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh (“Hertzberg”), 721 A.2d 43, 46 (Pa. 1998); Valley View Civic Association v. Zoning Board of Adjustment (“Valley View”), 462 A.2d 637, 639 (Pa. 1983); Lawrenceville Stakeholders v. City of Pittsburgh Zoning Board of Adjustment (“Lawrenceville Stakeholders”), 247 A.3d 465, 472-73 (Pa. Cmwlth. 2021); Taliaferro v. Darby Township Zoning Hearing Board (“Taliaferro”), 873 A.2d 807, 811 n.1 (Pa. Cmwlth. 2005); Kadi v. Zoning Hearing Board of Lynn Township (“Kadi”), 457 A.2d 1042, 1043 (Pa. Cmwlth. 1983).  An abuse of discretion occurs when the board’s findings are not supported by substantial evidence in the record.  Marshall at 331; Exeter at 659; Hertzberg at 46; Valley View at 640; Lawrenceville Stakeholders at 473.  Substantial evidence is that relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached.  Marshall at 331; Exeter at 659; Hertzberg at 46; Valley View at 640; Lawrenceville Stakeholders at 473; Keslosky v. Old Forge Civil Service Commission (“Keslosky”), 73 A.3d 665, 671 (Pa. Cmwlth. 2013); Carbondale Area School District v. Fell Charter School (“Carbondale”), 829 A.2d 400, 404 (Pa. Cmwlth. 2003).

In reviewing the decisions of a zoning hearing board, a court should not act as a super zoning board of adjustment and impose its own preference on local municipalities.  Kadi at 1044.  A zoning hearing board is the entity charged with the interpretation and application of the zoning ordinance.  Smith v. Zoning Hearing Board of Huntingdon Borough (“Smith”), 734 A.2d 55, 57 (Pa. Cmwlth. 1999).  A zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference.  Lench v. Zoning Board of Adjustment of City of Pittsburgh (“Lench”), 13 A.3d 576, 579 (Pa. Cmwlth. 2011); City of Hope v. Sadsbury Township Zoning Hearing Board (“City of Hope”), 890 A.2d 1137, 1143 (Pa. Cmwlth. 2006); Seipstown Village, LLC, v. Zoning Hearing Board of Weisenberg Township (“Seipstown Village”), 882 A.2d 32, 38 (Pa. Cmwlth. 2005); Smith at 57.  Such deference is appropriate because a zoning hearing board, as the entity charged with administering a zoning ordinance, possesses knowledge and expertise in interpreting that ordinance.  Lench at 579; City of Hope at 1143.

A court errs when it substitutes its judgment on the merits for that of a zoning board.  Marshall at 331; Lawrenceville Stakeholders at 473; Taliaferro at 811.  The zoning board’s function is to determine whether the evidence satisfies the criteria for granting a variance, and the zoning board, as the factfinder, is the sole judge of credibility.  Marshall at 331; Lawrenceville Stakeholders at 473; Hawk v. City of Pittsburgh Zoning Board of Adjustment (“Hawk”), 38 A.3d 1061, 1065 (Pa. Cmwlth. 2012); Taliaferro at 811.  The zoning board is free to accept or reject the testimony of any witness, in whole or in part.  Hawk at 1065.  A zoning board is free to reject even uncontradicted testimony it finds lacking in credibility, including testimony offered by an expert witness.  Taliaferro at 811.  The court must view the evidence in a light most favorable to the prevailing party, which must be given the benefit of all reasonable inferences arising from the evidence.  Lawrenceville Stakeholders at 473; Tidd v. Lower Saucon Township Zoning Hearing Board (“Tidd”), 118 A.3d 1, 13 (Pa. Cmwlth. 2015); Keslosky at 671.  Assuming the record contains substantial evidence, the court is bound by the board’s findings that result from resolutions of credibility and conflicting testimony rather than a capricious disregard of evidence.  Taliaferro at 811.  It is irrelevant whether the record contains evidence to support findings other than those made by the factfinder; the critical inquiry is whether there is evidence to support the findings actually made.  Keslosky at 671; Carbondale at 404.  There is no requirement that a zoning board cite specific evidence in support of each of its findings.  Taliaferro at 816.

The party seeking the variance bears the burden of proof.  Marshall at 329.  The board may grant a variance if all of the following findings are made where relevant in a given case:

(1)     That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.

(2)     That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.

(3)     That such unnecessary hardship has not been created by the appellant.

(4)     That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.

(5)     That the variance, if authorized, will 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); Taliaferro at 811-12; Manayunk Neighborhood Council v. Zoning Board of Adjustment of City of Philadelphia (“Manayunk”), 815 A.2d 652, 656 (Pa. Cmwlth. 2002).  Furthermore, in granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this act and the zoning ordinance.  53 P.S. § 10910.2(b).  The requirements for Section 704.D. of the South Londonderry Township Zoning Ordinance of 2013 are substantively identical to the requirements listed in 53 P.S. Section 10910.2.

When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations to utilize the property in a manner consistent with the applicable regulations; thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance because the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.  Hertzberg at 47.  A variance applicant must show that unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest.  Id.; Manayunk at 656.  A zoning board’s findings are owed deference, particularly its determination that a variance applicant satisfied the unnecessary hardship criterion.  Tidd at 9.  This is particularly so in light of a zoning board’s expertise in and knowledge of local conditions.  Id.  Additionally, considerable weight should be placed on the community support for the applicant’s proposal.  Id.  Although unnecessary hardship usually relates to the physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself.  Wagner v. City of Erie Zoning Hearing Board (“Wagner”), 675 A.2d 791, 799 (Pa. Cmwlth. 1996).  With respect to a landowner who purchases with knowledge of the property’s condition and existing zoning restrictions, the hardship is deemed self-inflicted only where he has paid an unduly high price because he assumed the anticipated variance would justify the price, or where the size and shape of the parcel was affected by the transaction itself.  Wilson v. Plumstead Township Zoning Hearing Board (“Wilson”), 936 A.2d 1061, 1069 (Pa. 2007).  Thus, pre-purchase knowledge of zoning restrictions limiting development, without more, does not create a hardship.  Id.; Manayunk at 657.

 

III.    DISCUSSION

In this case, on April 8, 2022, this Court granted the motion for rule absolute regarding the earlier motion for determination without hearing which in effect required this Court to not disturb the findings of the ZHB if their findings were supported by substantial evidence.  53 P.S. § 11005-A.  Consequently, this Court was limited to determining whether the ZHB committed an abuse of discretion or an error of law.  Marshall at 331; Exeter at 659; Hertzberg at 46; Valley View at 639; Lawrenceville Stakeholders at 472-73; Taliaferro at 811 n.1; Kadi at 1043.  The Andrews were the party seeking the variance and the party who had the burden of proof.  Marshall at 329.  This Court notes that the Andrews sought the lesser dimensional type of variance as opposed to the use type of variance.  Hertzberg at 47.

This Court’s preference was not imposed because the ZHB is the entity charged with the interpretation and application of the South Londonderry Township Zoning Ordinance of 2013.  Smith at 57; Kadi at 1044.  Thus, this Court appropriately gave great weight and deference to the ZHB’s interpretation of South Londonderry Township Zoning Ordinance of 2013.  Lench at 579; City of Hope at 1143; Seipstown Village at 38; Smith at 57.  This Court left all credibility determinations to the ZHB, and this Court viewed the evidence in a light most favorable to the Andrews as they were the prevailing party.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.

While there is no requirement that the ZHB cite specific evidence in support of each of its findings, the ZHB did so here.  Taliaferro at 816.  As discussed in more detail below, this Court finds that the ZHB’s findings are supported by substantial evidence in the record; thus, this Court finds that the ZHB did not commit an abuse of discretion.  Marshall at 331; Exeter at 659; Hertzberg at 46; Valley View at 640; Lawrenceville Stakeholders at 473; Keslosky at 671; Taliaferro at 811 n.1; Carbondale at 404; Kadi at 1043.  Additionally, this Court finds that the ZHB did not commit an error of law.  Marshall at 331; Exeter at 659; Hertzberg at 46; Valley View at 639; Lawrenceville Stakeholders at 472-73; Taliaferro at 811 n.1; Kadi at 1043.  Because this Court finds the record contains substantial evidence, this Court is bound by the ZHB’s findings.  Taliaferro at 811.  It is irrelevant whether the record contains evidence to support findings other than those made by the ZHB; the critical inquiry is whether there is evidence to support the findings actually made by the ZHB, and there is here.  Keslosky at 671; Carbondale at 404.

 

  1. Whether there are unique physical circumstances or conditions,

including irregularity, narrowness, or shallowness of lot size or

shape, or exceptional topographical or other physical conditions

peculiar to the particular property and that the unnecessary

hardship is due to such conditions and not the circumstances or

conditions generally created by the provisions of the zoning

ordinance in the neighborhood or district in which the property is

located?

First, this Court notes that the ZHB’s findings were owed deference, particularly the determination that the Andrews satisfied the unnecessary hardship criterion.  Tidd at 9.  This was particularly so in light of the ZHB’s expertise in and knowledge of the local conditions.  Id.  Additionally, considerable weight was placed on the community support for the Andrews’ proposal.  Id.  Also, this Court notes that although unnecessary hardship usually relates to the physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself.  Wagner at 799.

The Andrews raised two bases of unnecessary hardship.  Regarding the side yards, the Andrews averred that the remaining area in the side yards within which to build the proposed garage is too narrow.  The side yard setbacks were fifteen feet.  That determination left seventeen feet on the west side of the Subject Property and fifteen feet on the east side of the Subject Property in which to build the twenty-six-foot-wide proposed garage.

Additionally, the Andrews averred that there is a natural swale on the west side of the Subject Property that prohibits the construction of the proposed garage in that area.  While the Appellants argue that the natural swale is not an official part of the stormwater management plan for the township, there is no denying that the natural swale exists and assists with water flow.  Corey Andrew testified to natural swale’s existence, and there was no contradictory testimony provided.  The ZHB accepted that testimony in granting the variance.

As for the east side of the Subject Property, Corey Andrew averred that there were mature trees which prevented him from constructing the proposed garage on that side of the Subject Property.  Corey Andrew did not want to alter the woods in the area by removing a significant number of trees which would alter the look of the neighborhood.  The ZHB acknowledged this testimony in the decision.

Regarding the rear yard, there is inadequate access and too steep of a slope in the rear yard on which to build the proposed garage.  Additionally, the ZHB accepted the testimony of Corey Andrew with regard to the slope of the Subject Property preventing the construction of the proposed garage in the rear of the Subject Property.  Corey Andrew, who has been a builder for approximately twenty years, averred that the proposed garage could not be built in the rear of the Subject Property because there is a severe slope from the south to north on the Subject Property.  Corey Andrew averred that, if the proposed garage were to be constructed near the rear of the Subject Property, then there would be “twenty some feet of fall in less than forty lineal feet.”  The ZHB accepted that testimony.  Moreover, given the natural swale located on the west side of the Subject Property, which is the only location to access the rear of the Subject Property due to the trees on the east side of the Subject Property, the lack of access to the rear of the Subject Property prevented the construction of the proposed garage in the rear of the Subject Property.

The Andrews showed that unnecessary hardship will result if the variance is denied.  Hertzberg at 47; Manayunk at 656.  Both bases of unnecessary hardship satisfied this requirement and were supported by substantial evidence which was accepted by the ZHB.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.  Contrary to Appellants’ assertions, this Court notes for the Appellants that the concern about the trees was mentioned in the record, including during the ZHB’s Memorandum, Findings, Opinion and Order on page 3.  Regardless, there is no requirement that the ZHB cite specific evidence in support of each of its findings.  Taliaferro at 816.  It is irrelevant whether the record contains evidence to support findings other than those made by the ZHB; the critical inquiry is whether there is evidence to support the findings actually made by the ZHB, and there is here.  Keslosky at 671; Carbondale at 404.  Therefore, this Court does not find that the ZHB committed an abuse of discretion or an error of law regarding the first requirement.

 

  1. Whether, because of such physical circumstances or conditions,

there is no possibility that the property can be developed in strict

conformity with the provisions of the zoning ordinance and that the

authorization of a variance is therefore necessary to enable the

reasonable use of the property?

Based upon the above hardship found by the ZHB, the Andrews cannot develop the Subject Property in strict compliance with the South Londonderry Township Zoning Ordinance of 2013.  The ZHB accepted the evidence presented that, given the limitation of the natural swale on the west side of the Subject Property, the proposed garage cannot be constructed in that location and access to the rear of the Subject Property is prohibited.  Moreover, given the wooded area on the east side of the Subject Property, the proposed garage could not be constructed there, or access gained to the rear of the Subject Property, without substantial cost or change to the character of the neighborhood.  Lastly, the proposed garage could not be constructed in the rear of the Subject Property given the lack of access to the rear of the Subject Property and the accepted slope of the location being a “twenty some feet of fall in less than forty lineal feet.”

There was substantial evidence that, without the requested variance relief, the Andrews are unable to develop the Subject Property.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.  Therefore, this Court does not find that the ZHB committed an abuse of discretion or an error of law regarding the second requirement.

 

  1. Whether such unnecessary hardship has not been created by the

Andrews?

The conditions of which the Andrews complain of existed at the time they purchased the Subject Property as the house was constructed in 1977.  There was no testimony presented by the Appellants, or evidence in the record, that the Andrews modified either the slope, the natural swale, the tree line, or the residence, such that they created any of the hardship found by the ZHB.  Even if the Andrews had pre-purchase knowledge of the zoning restrictions limiting development, the Andrews would not be creating the hardship.  Wilson at 1069; Manayunk at 657.  There was substantial evidence that the Andrews did not create any unnecessary hardship here.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.  Therefore, this Court does not find that the ZHB committed an abuse of discretion or an error of law regarding the third requirement.

 

  1. Whether the variance, if authorized, will not alter the essential

character of the neighborhood or district in which the property is

located, nor substantially or permanently impair the appropriate

use or development of adjacent property, nor be detrimental to the

public welfare?

For this fourth requirement, there was substantial evidence.  Corey Andrew averred that the proposed garage would not alter the essential character of the neighborhood nor substantially or permanently impair the appropriate use or development of adjacent property.  The design of the proposed garage would fit into the character of the neighborhood and would be similar to other homes in the general area.  The color of the proposed garage and the accompanying roof will match the existing house. Corey Andrew also averred that the view from either side of the Subject Property would not be impeded.  The shape of the structure also would not affect the character of the neighborhood as well.

That position, and the project overall, was supported by many of the neighbors who came out to support the Andrews’ variance request.  Barbara Close, the Andrews’ neighbor immediately to the west, averred that the characteristics of the Subject Property created unique difficulties for expansion and reasonable use of the Subject Property.  Moreover, Barbara Close averred that approval of the variance request would not be detrimental to the neighborhood because the L-shaped building would add ambiance and improve the appearance of the Subject Property.  Additionally, Barbara Close averred that there is a similar home in the neighborhood three houses away from the Subject Property.

Jill Martin, who lives a few blocks away from the Subject Property echoed that sentiment.  Jill Martin averred that the owners of the comparable L-shaped home three houses from the Andrews created a similar structure to their home to make an art studio.  Jill Martin walks the neighborhood often and believes that the Andrews’ request would add character to the neighborhood and would not be detrimental.

Reverend Robert Wallace agreed.  Reverend Robert Wallace and his wife moved into the neighborhood approximately six and one-half years ago.  One thing that drew them to the neighborhood was the fact that the neighborhood was not a “cookie cutter” one.  There are different designs and different expressions.  Reverend Robert Wallace averred that the proposed garage would enhance the entire neighborhood.

Jean Horstick, the Andrews’ neighbor who lives directly across the street, also agreed.  Jean Horstick would be looking at the proposed garage across the street every day.  Jean Horstick had no objection to the variance request as she believed the proposed garage would add value to the neighboring properties.

Arlene Albrite, who lives across the street from the “art studio” home also had no objection to the Andrews’ requested variance.  Arlene Albrite believed that the proposed garage would make the neighborhood a more beautiful area.  Arlene Albrite averred that, given the fact that most of the homes in the neighborhood were built in the ‘70s, these homes need to be upgraded and expanded to meet the needs of growing families.

Robert Nicolodi, who lives diagonally across from the Andrews also testified.  Robert Nicolodi, like Jean Horstick, will be looking at the proposed garage every day.  Robert Nicolodi stated that the proposed garage will have no adverse impact on him or the neighborhood.

The Appellants were the only people who appeared to oppose the variance request.  Sidney Hostetter did not testify.  Only Evelyn Koppel testified in opposition.  Evelyn Koppel averred that the Appellants have lived in the neighborhood for approximately fourteen years and are avid gardeners.

Evelyn Koppel had two concerns.  First, Evelyn Koppel was concerned that the proposed garage would block all of the sun from her garden.  However, Anne Andrew averred that, because the Andrews’ house sits to the west of the Appellants’ home and the sun rises in the east, the proposed garage would not interfere with the Appellants’ garden as it would receive sun all morning and all afternoon, as it currently does.  Second, Evelyn Koppel was concerned that the proposed garage would block their view.  However, Anne Andrew averred that the entire east side of the Andrews’ property is lined with trees and the Appellants’ plants, some of which are over five or six feet tall.  Consequently, the Appellants’ view is already obstructed by the existing plants and trees.

The Andrews showed that the proposed garage will not be contrary to the public interest.  Hertzberg at 47; Manayunk at 656.  The overwhelming community support was noted by the ZHB.  Such a factor is of legitimate consideration by the ZHB because considerable weight should be placed on the community support for the Andrews’ proposal.  Tidd at 9.  This substantial evidence supported the ZHB’s decision.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.  Therefore, this Court does not find that the ZHB committed an abuse of discretion or an error of law regarding the fourth requirement.

 

  1. Whether the variance, if authorized, will represent the minimum

variance that will afford relief and will represent the least

modification possible of the regulation in issue?

This Court agrees with the ZHB that the Appellants’ position on this issue is misguided.  The Appellants proposed four alternatives, which they say will result in a lesser modification of the South Londonderry Township Zoning Ordinance of 2013.  However, their argument discounts the substantial evidence presented in this case.

The Appellants’ argument discounts the substantial evidence accepted by the ZHB that a natural swale on the west side of the Subject Property prevents the construction of proposed garage there.  Consequently, the suggested size alternatives on the west side are of no consequence given the findings by the ZHB, which were based upon the evidence presented, that the natural swale precludes construction in that area of the Subject Property.  Moreover, the same is true for the Appellants’ argument that the proposed garage could be constructed, without variance relief, in the rear of the Subject Property.  Based upon the slope testimony accepted by the ZHB, this alternative is unavailable as well.

Corey Andrew averred that he intended to store at least one of the two trailers in the proposed garage, along with vehicles which he will subsequently acquire for his soon-to-be teenage drivers.  As such, Appellants’ alternative for a smaller proposed garage is not going to work because it provides parking for one vehicle, with hardly any additional room for anything else, let alone a second vehicle.  Furthermore, the Appellants took the position at the hearing that, while they oppose the construction of the proposed garage, the Andrews were in violation of the South Londonderry Township Zoning Ordinance of 2013 for parking the trailers where they were on the Subject Property.  The variance request granted by the ZHB resolves any alleged violation of the South Londonderry Township Zoning Ordinance of 2013 because the trailer or trailers would now be garaged.

There is substantial evidence that the relief granted represents the minimum variance that will afford the necessary relief and is the least possible modification under the circumstances presented to and accepted by the ZHB.  Marshall at 331; Lawrenceville Stakeholders at 473; Tidd at 13; Keslosky at 671; Hawk at 1065; Taliaferro at 811.  Therefore, this Court does not find that the ZHB committed an abuse of discretion or an error of law regarding the fifth requirement.

 

  1. CONCLUSION

Therefore, after careful consideration of the record and for the aforementioned reasons, the land use appeal is denied, the decision of the ZHB is affirmed, and the land use appeal is dismissed.  A concomitant order will be entered consistent with the foregoing.

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Ben has written 972 articles for Lebanon County Legal Journal

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