Barry L. Katz, Appellant,
Kidder Township Zoning Hearing Board.
No. 1383 C.D. 2011.

Commonwealth Court of Pennsylvania.

Argued: March 12, 2012.
Filed: April 5, 2012.




Barry L. Katz (Landowner) appeals an order of the Court of Common Pleas of Carbon County (trial court) affirming the decision of the Kidder Township Zoning Hearing Board (Board) denying his application for variances from the requirements regarding minimum lot size, minimum lot width, maximum impervious coverage, and front, rear and side yard setbacks. For the following reasons, we affirm.

The facts of this case are not in dispute. On May 11, 2009, Landowner purchased a parcel of property measuring 50 feet wide by 280.5 feet in length located at 142 North Lake Drive in Kidder Township (Township), Carbon County (County). Landowner purchased the property knowing it did not conform with several provisions of the County's zoning ordinance (Ordinance). First, the property is located in an R-2 zoning district, a medium-density residential district allowing no more than one principal building or use permitted on a lot; however, there are two separate homes on the property, both of which pre-date the Ordinance. The Ordinance states that parcels with on-lot water and central sewage, such as this property, must have a minimum of 30,000 square feet and be no less than 100 feet wide. However, Landowner's property contains 13,771 square feet and is only 50 feet wide. While the Ordinance requires a minimum setback for side yards of ten feet and a maximum impervious surface coverage of 35 percent, Landowner's property only complies with the minimum setback on the east side and has an impervious surface coverage of 40 percent.

Despite these existing non-conformities, Landowner proposes to subdivide the property into two lots with each home on a separate lot. The proposal does not call for any additional structures to be built or for any alterations to the existing conditions. According to the proposal, each lot will be 50 feet wide, the front or roadside lot will be 150 feet long (totaling 7,500 square feet) and the rear or lakeside lot will be 130.5 feet long (totaling 6,271 square feet). Landowner and his family currently reside in one of the homes and he rents the other for single-family use. Landowner's application to the Board seeks to subdivide the lot and requests variances from the Ordinance's minimum lot size, minimum lot width, maximum impervious coverage, and front, rear and side yard setbacks.

Before the Board, Ginny Compton (Ms. Compton), the Township's Zoning Officer Planning Administrator, testified that the property and structures on it are non-conforming and there are a number of similar non-conforming properties in the area. According to Ms. Compton, most of the properties surrounding Lake Harmony do not conform to the 30,000 square foot requirement, the setback requirement or the maximum impervious coverage limitation, and most of these non-conforming properties also pre-date the Ordinance. Ms. Compton stated that she is aware of one other property in the area with more than one home, but admitted there could be others.

Michael Kafkalas (Mr. Kafkalas), a professional land surveyor licensed by the Commonwealth, testified that he is familiar with the Lake Harmony area and the Ordinance and that the property at issue is a lawful non-conforming property under the Ordinance. However, Mr. Kafkalas testified that almost all of the lots in the Lake Harmony area are non-conforming because they fail to comply with the Ordinance's minimum lot size requirement of 30,000 square feet. According to Mr. Kafkalas, a lot across the street from Landowner's property has been subdivided into three separate parcels and another nearby lot has been divided into two parcels. Mr. Kafkalas testified that as per the proposed subdivision, Landowner's front lot would meet the Ordinance's front and rear yard setbacks, but would not meet the side yard setback on the western side and would not meet the overall minimum lot size. As proposed, the rear lot closest to Lake Harmony would not meet the front yard setback (31 feet rather than the required 40 feet), the side yard setback on the western side (8.6 to 8.9 feet rather than the required ten feet), or the overall minimum lot size. In addition, both proposed lots would have an impervious coverage of approximately 40 percent, while the maximum impervious coverage allowed is 35 percent.

Landowner testified that when he purchased the property in 2009, he was aware of the zoning situation but thought that the property "could be divided and make things much easier." (Reproduced Record (R.R.) at 67a). When asked what his claimed hardship was, Landowner stated:

I am paying two electric bills, two cable bills, two phone, two sewer. Everything is separate. And so I can't just divide the deed in half. So if, for example, with my children, I have three children, I want to leave different houses to different [sic] and avoid some estate issues. We just had that in our family recently. I can't even do that. Obviously, if there comes a point when I need to sell one for financial reasons or otherwise, I can't sell just one.

(R.R. at 66a). Landowner testified that he is not seeking approval for any alterations to the property or its structures. According to Landowner, his proposal would not result in any increase in traffic, would not pose any threat to the health of the community, and would not cause an increase in noise, smoke, dust, fumes, vapor, gases, glare or vibration. Landowner testified that he needed the requested variances because there was no possibility that he could use the property in strict conformity with the Ordinance, and that granting the variances would bring the property into conformity with the one principal use, one home rule found in Section 180-55(D) of the Ordinance.

The Board voted unanimously to deny Landowner's application, finding that the property does not have any unique physical circumstances or conditions that would cause unnecessary hardship, and that any actual hardship was created by Landowner because he knew that the lot was non-conforming when he purchased the property. The Board also found that a variance is not necessary to enable reasonable use of the property because it is already being reasonably used for residential purposes. Finally, the Board found that granting the variances would alter the essential character of the neighborhood and be detrimental to public welfare because Landowner seeks to drastically increase the level of non-conformity.

Landowner appealed to the trial court, which found that the Board erred in determining that Landowner did not suffer any undue hardship simply because he knew the property was non-conforming. See Sombers v. Stroud Township Zoning Hearing Board, 913 A.2d 306, 312 (Pa. Cmwlth. 2006) (stating "mere knowledge alone of an impediment to building under the terms of a zoning ordinance is insufficient to deny a variance"), appeal denied, 594 Pa. 701, 934 A.2d 1280 (2007). The trial court also held that the Board's determination that the requested relief would alter the essential character of the neighborhood was not supported by substantial evidence. However, the trial court agreed that Landowner's argument that denial of the variances will limit his ability to subdivide the property for estate planning purposes or to separately sell one of the parcels is meritless because economic and personal considerations, in and of themselves, are insufficient to constitute hardship. Finally, the trial court agreed that the property is already being used for a legal non-conforming use and, therefore, a variance is not necessary to enable the reasonable use of the property. This appeal followed.[1]

According to Section 910.2 of the Pennsylvania Municipalities Planning Code[2] (MPC), in order to obtain relief in the form of a variance, an applicant must establish that:

(1) an unnecessary hardship stemming from unique physical characteristics or conditions will result if the variance is denied; (2) because of such physical circumstances or condition, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.

Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103, 105 (Pa. Cmwlth. 2001). In Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), our Supreme Court stressed the difference between use and dimensional variances, noting that, in general, "the quantum of proof required to establish unnecessary hardship is . . . lesser when a dimensional variance, as opposed to a use variance, is sought." Id. at 258-59, 721 A.2d at 47-48.

Landowner argues that the Board abused its discretion by denying his application and utilizing the stringent standard applicable to a use variance rather than the more relaxed standard applicable to a dimensional variance as set forth in Hertzberg. We agree that the Board did not specifically apply the relaxed evidentiary standard for dimensional variances set forth in Hertzberg. However, this does not automatically mean that Landowner is entitled to the requested dimensional variances. On the contrary, we agree with the reasoning of the trial court in this case that, even applying the Hertzberg standard, Landowner failed to meet the requirements necessary for the grant of a variance.

First, the property is completely devoid of any unique physical characteristics or conditions which would create an unnecessary hardship and Landowner failed to put forth any relevant evidence on this issue. The mere fact that the property is undersized is not a unique physical characteristic or condition and does not satisfy this requirement. Second, a variance is not necessary to enable the reasonable use of the property because it is already being used for residential purposes. There are two existing dwellings on the property, one which Landowner and his family use as a residence and one which he rents out to others for profit. Both houses pre-date the enactment of the Ordinance; therefore, there is a legal non-conforming use.

Finally, the only testimony regarding unnecessary hardship is Landowner's claim that he is paying two separate sets of bills and that denial of the variances will limit his ability to subdivide the property for estate planning purposes or to separately sell one of the parcels if he needs to do so in the future. However, Landowner's testimony regarding financial hardship is purely speculative, and this Court has repeatedly held that economic or financial reasons are not sufficient to satisfy the standard of unnecessary hardship. See A.R.E. Lehigh Valley Partners v. Zoning Hearing Board of Upper Macungie Township, 590 A.2d 842 (Pa. Cmwlth. 1991); Washington Township v. Washington Township Zoning Hearing Board, 365 A.2d 691 (Pa. Cmwlth. 1976). Despite the lesser quantum of proof, Hertzberg does not stand for the proposition that "a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted." Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001).

Moreover, while Hertzberg eased the requirements for granting a variance for dimensional requirements, it did not make dimensional requirements . . . "free-fire zones" for which variances could be granted when the party seeking the variance merely articulated a reason that it would be financially "hurt" if it could not do what it wanted to do with the property, even if the property was already being occupied by another use. If that were the case, dimensional requirements would be meaningless at best, rules of thumb and the planning efforts that local governments go through in setting them to have light, area (side yards) and density (area) buffers would be a waste of time. Moreover, adjoining property owners could never depend on the implicit mutual covenants that placing dimensional restrictions on all property would only be varied when there were compelling reasons that not to do so would create a severe unnecessary hardship.

Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment of the City of Philadelphia, 771 A.2d 874, 877-78 (Pa. Cmwlth. 2001).

Landowner also argues that the Board erred in not finding that his variance request was de minimis because the proposal would not alter any existing conditions or structures on the property and would not have any impact on the neighborhood. Landowner is correct that the de minimis doctrine is an exception to the heavy burden of proof placed on a property owner seeking a variance, and that a de minimis variance may be granted even where the strict requirements for a variance, including unnecessary hardship, have not been met. See Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900, 901 (Pa. Cmwlth. 1996); Constantino v. Zoning Hearing Board of the Borough of Forest Hills, 618 A.2d 1193, 1196 (Pa. Cmwlth. 1992). However, this is a narrow exception which should be applied in rare instances where only a minor deviation from a zoning ordinance is sought and rigid compliance is not necessary to protect the public policy concerns inherent in the ordinance. Constantino, 618 A.2d at 1196. Landowner's property is already well below the Ordinance's minimum lot size, and it cannot possibly be said that the request to subdivide the property is only a minor deviation when it would result in extremely undersized lots. The Ordinance's minimum lot size is 30,000 square feet and the proposed subdivision would result in a front lot totaling only 7,500 square feet (or 25 percent of the required square footage) and a rear lot of only 6,271 square feet (or approximately 21 percent of the required square footage). In addition, as stated above, Landowner is already making reasonable use of the property through his lawful non-conforming use and no variance is required.

Accordingly, the order of the trial court is affirmed.


AND NOW, this 5th day of April, 2012, the order of the Court of Common Pleas of Carbon County, dated June 30, 2011, at No. 10-0838, is affirmed.

[1] In a land use appeal where the trial court took no additional evidence, our review is limited to determining whether the zoning hearing board committed an abuse of discretion or an error of law. Glenside Center, Inc. v. Abington Twp. Zoning Hearing Bd., 973 A.2d 10, 15 n.11 (Pa. Cmwlth. 2009). An abuse of discretion occurs when the findings of the board are not supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Bd. of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).

[2] Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. 10910.2.