Pohlig Builders v. Zoning Hearing Bd. of Schuylkill Twp.

• Decision Date: 27 May 2011
• Citation: 25 A.3d 1260
• Parties: POHLIG BUILDERS, LLCv.ZONING HEARING BOARD OF SCHUYLKILL TOWNSHIP and Schuylkill Township Board of Supervisors.Schuylkill Township Board of Supervisorsv.Zoning Hearing Board of Schuylkill Township and Pohlig Builders, LLC.Appeal of: Township of Schuylkill and Schuylkill Township Board of Supervisors.
• Court: Pennsylvania Commonwealth Court

25 A.3d 1260

POHLIG BUILDERS, LLC

v.ZONING HEARING BOARD OF SCHUYLKILL TOWNSHIP and Schuylkill Township Board of Supervisors.Schuylkill Township Board of Supervisors

v.Zoning Hearing Board of Schuylkill Township and Pohlig Builders, LLC.Appeal of: Township of Schuylkill and Schuylkill Township Board of Supervisors.

Commonwealth Court of Pennsylvania.

Argued Feb. 7, 2011.Decided March 17, 2011.Publication Ordered May 27, 2011.

Scot R. Withers, West Chester, for appellants.John C. Snyder and Megan E. King, Wayne, for appellee.BEFORE: PELLEGRINI, Judge, and BUTLER, Judge, and FRIEDMAN, Senior Judge.OPINION BY Judge BUTLER.

In this zoning appeal, the Schuylkill Township Board of Supervisors (Township) asks whether the Zoning Hearing Board of Schuylkill Township (ZHB) erred in granting Pohlig Builders, LLC's (Developer) request for a variance from the steep slope regulations contained in Section 1925 of the Schuylkill Township Zoning Ordinance of 1955 (zoning ordinance). The requested variance would allow Developer to disturb a relatively small area of steep slopes so that it could construct a bridge and culvert in connection with its proposed residential development. Discerning no error in the ZHB's grant of the variance, we affirm.

I. Factual and Procedural Background

This case concerns Developer's efforts to develop a 65–acre tract on Valley Forge Road in Schuylkill Township, Chester County, which lies within an R–1 Low Density Residential District (subject property). Developer, the equitable owner of the subject property, seeks to develop the subject property for 51 single-family detached homes on 35,000 square foot lots.

The subject property is basically divided into two segments by a “finger-like” extension (inlet) of the Pickering Creek Reservoir, which is owned by Aqua Pa., Inc. (Aqua), a provider of public drinking water. The southern segment of the subject property is improved with an existing manor house, a carriage house and a tenant house, access to which is from the northern segment of the subject property over a driveway located within a 50–foot wide strip connecting the northern and southern segments of the subject property.

Developer filed a subdivision plan seeking to construct 36 homes on the southern segment of the subject property, which comprises about two-thirds of the total area of the subject property (45 acres). Developer's plan also contemplated construction of 15 homes on the remaining one-third of the subject property, the undeveloped northern segment (20 acres).

Developer and Aqua agreed to terms for an access easement pursuant to which Aqua agreed to allow Developer to construct a bridge and culvert over the finger of water ¹ in order to provide access from the northern segment to the southern segment of the subject property. The proposed bridge and culvert would carry an access road that would provide ingress and egress for the southern segment of the subject property. Aqua would not allow Developer to span the reservoir at another location.

That portion of Aqua's land on which the proposed bridge and culvert and part of the roadway lie is within the Township's “F” Flood Hazard District (FHD) and is burdened by constrained land, which is the subject of the zoning ordinance's steep slope regulations. These constraints prompted Developer to seek relief from the ZHB in the form of variances and special exceptions to permit construction of the bridge and culvert and associated structures, including the access road, on Aqua's land.

Relevant here, Developer sought a variance from the zoning ordinance's steep slope regulations to permit construction of a portion of the proposed bridge and culvert and access road on land containing slopes that exceed 25%. See Section 1925 of the zoning ordinance (“There shall be no erection of buildings or streets on land sloping greater than twenty-five (25) feet vertical in one-hundred feet horizontal, or a 25% slope....”). Developer also sought an interpretation of the zoning ordinance that would permit the structures associated with its proposed bridge and culvert (abutments, retaining walls, fill and the access road) as accessory uses so as to obviate the need for additional zoning relief.²

After 12 hearings, the ZHB issued a lengthy decision in which it granted in part, and denied in part, Developer's requests for relief. As a small part of that much larger litigation, the ZHB granted Developer's request for a variance from Section 1925 of the zoning ordinance to allow construction of a portion of the proposed bridge and culvert on slopes greater than 25%. Additionally, the ZHB determined the structures associated with Developer's proposed bridge and culvert constituted accessory uses under the zoning ordinance.³ Both Developer and the Township appealed to the Court of Common Pleas of Chester County (trial court).

Without taking additional evidence, the trial court issued a thorough and thoughtful opinion in which it affirmed in part and reversed in part the ZHB's decision. Among other things, the trial court affirmed the ZHB's grant of the variance from the steep slope regulations, and the ZHB's determination that Developer's proposed access road constituted an accessory use to the proposed bridge and culvert.⁴ The Township appealed to this Court.

II. Issues/Contentions

Initially, we note that the Township's brief only challenges the ZHB's grant of the variance from the zoning ordinance's steep slope regulations. As a result, Developer asserts the Township waived challenges to any other ZHB determinations. Because Developer is correct that the Township's brief only addresses the propriety of the grant of a variance from the steep slope regulations, we agree the Township did not preserve any other issues. See, e.g., Commonwealth v. Montalvo, 598 Pa. 263, 956 A.2d 926 (2008) (failure to brief issues results in waiver).

On appeal,⁵ the Township asserts Developer's proposed road crossing of the reservoir inlet requires a use variance to cross a slope with a grade substantially greater than 25%. The Township argues, even if the variance from the steep slope restrictions is considered under a more relaxed standard, Developer was still required to prove unnecessary hardship. The Township points out that, although the ZHB found the proposed bridge and culvert would impact an area of steep slopes adjacent to the reservoir inlet, see ZHB Op., Finding of Fact (F.F.) No. 57, it nevertheless granted a variance on the theory that Developer's cutting and filling of the slopes would actually remove the slopes, thereby eliminating concerns over accelerated erosion or runoff. F.F. Nos. 59, 60. The Township challenges the ZHB's grant of the variance on four grounds.

A. Unnecessary Hardship

The Township first challenges the ZHB's grant of the variance on the ground that Developer presented no evidence of unnecessary hardship. The Township asserts Developer did not prove unnecessary hardship occasioned by the physical conditions of the subject property, and it did not prove there were physical restraints that resulted in an inability to develop the subject property in strict conformity with the zoning ordinance.

The Township contends the ZHB did not make findings to support the existence of unnecessary hardship because it could not do so based on the evidence presented by Developer. In fact, the Township argues, the ZHB made no findings that explain how Developer satisfied any of the five requisite variance criteria; thus, the ZHB erred in granting the variance. Instead of applying the statutory variance criteria, the ZHB granted relief based on the theory that construction of the bridge and culvert would eliminate the steep slopes and thus eliminate the negative impacts that flow from construction on steep slopes. The Township contends such rationale effectively nullifies all zoning regulations protecting natural resources.

B. Reasonable Use of Subject Property Absent Grant of Variance

The Township next asserts that the reason Developer did not prove unnecessary hardship is that it cannot because the subject property can be developed and put to reasonable use absent the grant of a variance.

To that end, the Township argues Developer can make reasonable use of the northern portion of the subject property without variance relief. The Township points out Sections 404 and 1927 of the zoning ordinance permit the use of “lot averaging” and would allow construction of the 15 homes proposed by Developer on the northern segment of the subject property.

Because the subject property can be reasonably used to develop buildable lots on the northern segment, the Township asserts Developer has a reasonable use of the subject property, and it is not entitled to the extraordinary grant of variance relief. See Boyer v. Zoning Hearing Bd. of Franklin Twp., 987 A.2d 219 (Pa.Cmwlth.2010) (upholding denial of steep slope variance to build single family home where property was currently in use for harvesting, sawing and selling timber); Wilson v. Plumstead Twp. Zoning Hearing Bd., 894 A.2d 845 (Pa.Cmwlth.2006), aff'd, 594 Pa. 416, 936 A.2d 1061 (2007) (requested variance not required for reasonable use of property where landowner resided on property and operated his business as a permissible home occupation); Zappala Grp., Inc. v. Zoning Hearing Bd., Town of McCandless, 810 A.2d 708 (Pa.Cmwlth.2002) (denying variance from steep slope regulations because the developer could develop part of the land unconstrained by prohibited steep slopes without the requested variance); see also Rittenhouse Row v. Aspite, 917 A.2d 880 (Pa.Cmwlth.2006) ( en banc ); Soc'y Created to Reduce Urban Blight (SCRUB) v. Zoning Bd. of Adjustment of City of Phila. (Eller Media Co.), 814 A.2d 847 (Pa.Cmwlth.2003).

C. Financial Hardship

In connection with its “reasonable use” argument, the Township further maintains the only hardship Developer would suffer absent the grant of the variance is...