Kneebone v. Zoning Hearing Bd. of the Township of Plainfield, 52 MAP 2021

CourtUnited States State Supreme Court of Pennsylvania
Parties Ruth L. KNEEBONE v. ZONING HEARING BOARD OF the TOWNSHIP OF PLAINFIELD and Patrick Lutz and Pamela Lutz Appeal of: Patrick Lutz and Pamela Lutz
Docket Number52 MAP 2021
Decision Date28 April 2022

273 A.3d 553 (Mem)


Appeal of: Patrick Lutz and Pamela Lutz

No. 52 MAP 2021

Supreme Court of Pennsylvania.

Argued: December 7, 2021
Decided: April 28, 2022

Gary Neil Asteak, Esq. , for Appellants.

Thomas M. Caffrey, Esq. , Lehigh County Department of Law, James Lee Zulick, Esq. , Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, for Appellee Zoning Hearing Board of the Township of Plainfield.

Theodore R. Lewis, Esq. , Lewis & Walters, Easton, for Appellee Ruth L. Kneebone.




AND NOW, this 28th day of April, 2022, because the participating Justices are unable to reach consensus on the merits of the question as to which the Court granted allowance of appeal, the order of the Commonwealth Court is AFFIRMED by operation of law.

Former Justice Saylor did not participate in the consideration or decision of this matter.



This Court granted allowance of appeal to decide whether the Commonwealth Court applied an incorrect standard of review and substituted its judgment for that of the lower tribunals when it reversed the grant of a dimensional variance. The Opinion in Support of Affirmance ("OISA") answers this question in the negative, holding that the intermediate court applied the correct standard, and accurately concluded that there was an absence of substantial evidence to support the Board's conclusion that an unnecessary hardship existed. I respectfully disagree.

It is well-settled that "the grant of a dimensional variance is of lesser moment than the grant of a use variance," as the "latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation[,]" rather than merely requesting a reasonable adjustment of an ordinance in order to utilize the property in a way that is consistent with the applicable regulation. Hertzberg v. Zoning Bd. Of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 47 (1998). In fact, in Hertzberg, this Court held that this important distinction entitled courts to employ a more relaxed standard of unnecessary hardship when considering a request for a dimensional variance. See id. at 50 (finding that to "justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood").

Importantly, when, as here, the trial court does not conduct its own independent hearing or receive additional evidence beyond that which was taken before the zoning board, the applicable standard of appellate review is an abuse of discretion. "An abuse of discretion will be found only where the zoning board's findings are not supported by substantial evidence." Id. at 46. See also id. (defining substantial evidence as "such relevant evidence as a reasonable

273 A.3d 555

mind might accept as adequate to support a conclusion").

Turning to the case sub judice, following two hearings, the Board, by unanimous vote, approved the Lutzs' request for a dimensional variance. In its written opinion, the Board made a number of factual findings, including that the: (1) Lutzs' lot is undersized;1 (2) land immediately behind the Lutz' property is a 130-acre farm; (3) proposed construction would meet the zoning ordinance's side-yard setback requirements; and (4) 18-foot encroachment into the rear-setback would not negatively impact the surrounding properties or the character of the neighborhood. Given its findings, the Board determined that the Lutzs' ability to comply with the rear-setback requirement of the zoning ordinance created a hardship, and that granting the Lutzs' variance request was appropriate because the proposed addition would not be offensive to the surrounding area.

This decision was upheld by the trial court, which found that the Board's decision was supported by substantial evidence of record. As explained in greater detail by the OISA, the Commonwealth Court reversed, criticizing the Board's determination that a hardship existed and disagreeing with the lower court that substantial evidence supported the Board's determination.

Respectfully, I conclude that the Commonwealth Court erred in reversing the Board. As acknowledged by the OISA, "municipal zoning boards are better positioned than reviewing courts to assess local conditions and make reasoned judgments about when circumstances prevailing in their area, combined with strict adherence to local zoning regulations, may give rise to an unnecessary hardship." OISA at 20. Indeed, I believe that local zoning boards should be afforded great deference, given their intimate knowledge of the areas in which these variances are sought. See e.g. Metal Green Inc. v. City of Philadelphia, ___ Pa. ___, 266 A.3d 495 (2021) (noting that "we have cautioned that reviewing courts are not super boards of adjustment or planning commissions of last resort").

Moreover, as an overarching matter, as discussed above, the Commonwealth Court has supplanted in many instances, including the instant matter, zoning hearing board discretion by errantly substituting its own viewpoint disfavoring zoning variances for the decision of local zoning boards. See e.g. Graybrook v. City of Pittsburgh Zoning Board of Adjustment, 2017 WL 6523000, *5 (Cmwlth Ct. 2017) (unpublished memorandum) (reversing a trial court's affirmation of a zoning hearing board's grant of dimensional variances and finding, inter alia, that although the homeowner wished to renovate his house to make it larger in a way that was not permitted under the zoning ordinance, "[w]ishes and desires alone ... do not give rise to a hardship for dimensional variance purposes") and McEwen v. Zoning Hearing Bd. of Sadsbury Twp., 2016 WL 50855, at *10 (Cmwlth Ct. 2016) (unpublished memorandum) (reversing the grant of a dimensional variance and holding, inter alia, that an owner's desire to maximize

273 A.3d 556

the value of his property by adding a dimensionally non-compliant garage was "insufficient to establish an unnecessary hardship warranting the grant of a dimensional variance under the relaxed Hertzberg standard").

Both as a matter of policy and law, the Commonwealth's Court's conduct in this regard supplants both the Legislature and this Court by interpreting unnecessary hardship too narrowly in the context of dimensional variances, ignoring the deferential standard of review under which the local zoning hearing board's decisions should be assessed. See Hertzberg, supra. I believe the Hertzberg decision was aimed at providing more flexibility to zoning hearing boards when assessing whether a dimensional variance is appropriate. Thus, unlike the intermediate court here, I would interpret more broadly what constitutes an unnecessary hardship and respectfully call on the Commonwealth Court to follow the law, which mandates that zoning hearing boards have broad discretion to grant dimensional variances without concern that the Commonwealth Court will engage in plenary review and substitute its judgment inappropriately.

Considering the foregoing, I would hold that it was well-within the Board's discretion to find that the adjustment sought by the Lutzs was warranted under the aforementioned circumstances. Quite simply, the Board's decision, as affirmed by the trial court, was supported amply by the record. Consequently, the grant of the dimensional variance should have been affirmed.

Justice Dougherty joins this opinion in support of reversal.



I fully join the Opinion in Support of Reversal authored by Chief Justice Baer. I also join the thoughtful analysis of Justice Wecht's Opinion in Support of Dismissal, with the exception of his preferred disposition of dismissal.



The Opinion in Support of Affirmance ("OISA") compounds into one issue what should be considered two separate questions. First, as a matter of law, can the undersized nature of a property support a finding of unnecessary hardship, which might in turn allow a zoning hearing board to grant a dimensional variance pursuant to 53 P.S. § 10910.2(a)?1 Second, in the

273 A.3d 557

instant case, did the Commonwealth Court misapply its standard of review in reversing the trial court and the zoning hearing board?

Due to a lack of developed advocacy on the first question, I would dismiss this appeal as improvidently granted. Moreover, and regardless of the answer to that first question, the parties' arguments demonstrate that the second question amounts merely to error review and does not merit consideration by this Court. Cf. Pa.R.A.P. 1114.


The OISA aptly relates the factual context for this dispute, see OISA at 1-7, leaving little need for expansion or clarification. Therefore, I begin with our well-settled standard of review. When neither the trial court nor the Commonwealth Court conducts a hearing or receives additional evidence that was not before the zoning board, our question is whether the board committed an abuse of discretion or an error of law in granting the variance. Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh, 543 Pa. 415, 672 A.2d 286, 288 (1996). An abuse of discretion exists only where the zoning board's findings are not supported by substantial evidence. Id. at 289. Substantial evidence, in turn, is what a reasonable person might accept as adequate to support a conclusion. Oasis v. Zoning Hearing Bd. of S. Annville Twp., 94 A.3d 457, 461 n.5 (Pa. Cmwlth. 2014) (citations omitted). Courts must view the evidence in the light most favorable to the party who prevailed before the fact-finder,...

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