Evans v. ZON. HEARING BD. OF SPRING CITY

• Decision Date: 21 June 1999
• Citation: Evans v. ZON. HEARING BD. OF SPRING CITY, 732 A.2d 686 (Pa. Commw. Ct. 1999)
• Parties: Raymond J. EVANS and Barbara Evans, Appellants, v. ZONING HEARING BOARD OF THE BOROUGH OF SPRING CITY and Borough of Spring City.
• Court: Pennsylvania Commonwealth Court

732 A.2d 686

Raymond J. EVANS and Barbara Evans, Appellants, v.ZONING HEARING BOARD OF THE BOROUGH OF SPRING CITY and Borough of Spring City.

Commonwealth Court of Pennsylvania.

Argued March 12, 1999.

Decided June 21, 1999.

James S. Tupitza, West Chester, for appellants.

Robert M. Romain, Valley Forge, for appellee, Borough of Spring City.

Before DOYLE, J., SMITH, J., and MIRARCHI, Jr., Senior Judge.MIRARCHI, Jr., Senior Judge.

Raymond J. Evans and Barbara Evans appeal from an order of the Court of Common Pleas of Chester County which affirmed the decision of the Zoning Hearing Board of the Borough of Spring City(Board)(1) affirming the enforcement notice issued by the Borough of Spring City(Borough) against the Evans; (2) rejecting the interpretation of the zoning ordinance (Ordinance) urged by the Evans (3) denying the application for a variance from the zoning requirements; and (4) denying the request for "a reasonable accommodation" for their handicapped daughter pursuant to the Fair Housing Amendments Act of 1988 (FHAA),42 U.S.C. §§ 3601-3631.We affirm.

I.

The relevant facts found by the Board are undisputed.In 1960, the Evans acquired the subject property which contained a semi-detached single-family dwelling.On April 11, 1991, the Evans applied for a building permit to construct a detached 40' × 24' × 15' accessory building to be used for parking and storage at an estimated cost of $1600.In the application, the Evans listed themselves as a contractor for the construction.At that time, Raymond Evans owned a carpentry business performing work on residential properties.The accessory building proposed in the application complied with all the zoning requirements, including the 5-foot minimum building setback applicable to an accessory structure for a single-family dwelling in the R-2 Medium Density Residential District where the property was then located.The property is currently located in the R-3 High Density Residential District.

After the Borough's approval of the application and before completion of the accessory building, the Evans' daughter, Jennifer Goehring, was diagnosed in 1993 as suffering from agoraphobia and mitral prolapse, a condition described by her physician as abnormal fear of going places and being in public by herself.When she has a panic attack due to that condition, she lies on the floor shaking in a fetal position.Jennifer was married and had a child.

The Evans then changed the construction plan and added a three-bedroom apartment above the accessory building without obtaining a proper permit from the Borough.The Evans connected public water and public sewer lines serving the main dwelling to the accessory building without obtaining approval of the municipal water and sewer authorities and without paying required connection and service fees.Raymond Evans himself did most of the construction work at the final cost of approximately $20,000.The height of the accessory building as constructed was 21 feet, 6 feet higher than the height approved by the Borough in 1991.The Evans never sought the Borough's inspection of the completed building nor did they obtain a certificate of occupancy and compliance required by the Ordinance and the terms of the 1991 building permit.After completion of the construction in 1993, the Evans' daughter, her husband and her child moved into the apartment above the accessory building.

In 1995, the Borough zoning officer notified the Evans that their construction of the apartment without approval and use of the accessory building as a dwelling violated the Ordinance.On appeal, the Board and the trial court upheld the zoning violation notice.In December 1996, the Borough zoning officer issued a second enforcement notice against the Evans, stating that their continued use of the accessory building for a dwelling was in violation of the Ordinance.The Evans then appealed the enforcement notice to the Board and sought interpretation that their proposed construction of an enclosed 50-foot breezeway connecting the main single-family dwelling and the accessory building containing the apartment would create a two-family dwelling on the lot permitted by right in the R-2 and R-3 zoning districts.

The Evans also requested a variance from the 25-foot or 20-foot minimum rear yard requirement applicable to a two-family dwelling in the R-2 or R-3 zoning district, respectively.Sections 502.Band602.B of the Ordinance.Finally, the Evans requested that the Borough waive the zoning requirements and allow their daughter and her family to live in the apartment above the accessory building as a reasonable accommodation for a handicapped person under the FHAA.

The Board concluded that the use of the accessory building for a dwelling was not permitted under the Ordinance; the two separate free-standing dwellings in a residential lot are not permitted either by right or by a special exception; the proposed construction of a breezeway connecting the two separate dwellings would not create one two-family dwelling permitted by the Ordinance; and the Evans failed to establish entitlement to a variance.The Board accordingly affirmed the enforcement notice, rejected the interpretation of the Ordinance urged by the Evans and denied the application for a variance.On appeal, the trial court affirmed the Board's decision.¹

II.

Under Sections 501.Aand601.A of the Ordinance, which provide that a building may be erected or used by right for the purpose of, inter alia, a single-family dwelling or a two-family dwelling in a lot located in the R-2 and R-3 zoning district, only one single-family or two-family dwelling is permitted in the Evans' lot.The Evans contend, however, that they are not required to obtain a use variance because the proposed construction of an enclosed 50-foot breezeway between the main single-family dwelling and the accessory building will create a two-family dwelling permitted by the Ordinance.

Section 201 of the Ordinance defines a "dwelling" as "[a] building or entirely self-contained portion of a building having complete housekeeping facilities with no enclosed space in common with another dwelling."The Ordinance classifies two types of "a two-family dwelling": (1) a semi-detached two-family dwelling and (2) a duplex two-family dwelling."A semi-detached two-family dwelling" is defined as "a residential building containing two dwelling units, separated by a vertical party wall, each having independent outside access and open space on three sides."Id"A duplex two-family dwelling" is "a residential building containing two dwelling units, separated by a horizontal party wall each having independent outside access and open space on all sides."Id.

In this matter, the accessory building containing the three-bedroom apartment is a detached structure and does not share a party wall with the main dwelling.Even with an enclosed 50-foot breezeway proposed by the Evans, the two dwellings still would not share a vertical party wall required for "a semi-detached two-family dwelling."Further, the placement of the proposed breezeway between the two buildings would not create "a duplex two-family dwelling" because the buildings would not share a horizontal party wall and because each building then would not have open space on all sides.

Simply, the Evans' assertion that a permitted two-family dwelling can be created by merely placing a breezeway between the two separate dwellings is not supported by the definition of "a semi-detached two-family dwelling" and "a duplex two-family dwelling" under the Ordinance.With or without a breezeway, the main dwelling and the apartment above the accessory building are two separate single-family dwellings, not a two-family dwelling.The Board thus properly rejected the interpretation of the Ordinance urged by the Evans.The Evans were therefore required to obtain a use variance to maintain the two separate single-family dwellings on the lot.

Further, even assuming that the proposed construction of a breezeway would create a permitted two-family dwelling as the Evans assert, they must then obtain a dimensional variance because the accessory building has only a 5-foot building setback which does not comply with the 25-foot or 20-foot minimum rear yard requirement for a two-family dwelling in the R-2 or R-3 zoning district.

III.

To establish entitlement to a variance, an applicant must prove all of the following: (1) the zoning ordinance imposes unnecessary hardship resulting from the unique physical circumstances or conditions of the property, as distinguished from hardship arising from the impact of the zoning regulation on the entire district; (2) because of such physical circumstances or conditions, there is no possibility that the property can be developed for a reasonable use in strict conformity with the zoning ordinance; (3) the alleged hardship is not self-inflicted; (4) the requested variance will not destroy the character of the neighborhood; and (5) the requested variance represents the least possible modification of the zoning ordinance.Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC);²Patullo v. Zoning Hearing Board of the Township of Middletown,701 A.2d 295(Pa.Cmwlth.1997).The applicant's burden is a heavy one, and the reason for granting a variance must be substantial, serious and compelling.Valley View Civic Ass'n v. Zoning Board of Adjustment,501 Pa. 550, 462 A.2d 637(1983).A variance should be granted sparingly and only under exceptional circumstances.Appeal of Lester M. Prange, Inc.,166 Pa.Cmwlth. 626, 647 A.2d 279(1994).

In this matter, the property had been used for a permitted single-family dwelling when the Evans constructed the apartment without obtaining a proper permit.Where, as here, the property has actually been used for a permitted purpose, the owner does not suffer unnecessary hardship required for granting a variance.Miller...