Kneebone v. Zoning Hearing Bd. of the Twp. of Plainfield
| Decision Date | 28 April 2022 |
| Docket Number | 52 MAP 2021 |
| 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 |
| Court | Pennsylvania Supreme Court |
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.
JUSTICE MUNDY, in support of affirmance
We allowed appeal to consider whether the Commonwealth Court correctly applied its standard of appellate review relative to the grant of a dimensional zoning variance.
Appellants, Patrick and Pamela Lutz ("Homeowners"), own a single-family, detached home on a half-acre lot along Kesslersville Road in Plainfield Township, Northampton County. The property is located in a farm and forest district under the township's zoning code. Single-family dwellings are permitted in that district but, per the zoning code, they are subject to setback requirements – namely, 50 feet for the front and back yards, and 20 feet for the side yards.
Homeowners decided to add onto the back of their home. The design called for an addition to extend to the building envelope in the back – that is, to 50 feet shy of the rear property line – with a raised, covered deck extending 18 feet into the rear setback area. When Homeowners submitted their plan to the township for approval, the zoning officer sent them written notice that the deck would not be allowed because it intruded into 50-foot setback area. He observed Homeowners could seek relief from the zoning hearing board (the "Board") in the form of a dimensional variance. The officer noted dimensional variances must meet the requirements of the zoning code. See Plainfield Twp. Zoning Code § 27-804.5.C. Those requirements are substantively identical to the ones contained in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (the "MPC"),1 which lists five prerequisites for a variance:
53 P.S. § 10910.2(a).
Homeowners submitted a dimensional-variance application to the Board, indicating their house was built in the 1960s on a non-conforming lot which was not part of any development, and it is adjacent to a large tract of open farmland to the rear with no structures nearby. The Board held hearings in September and October 2018.
At the September hearing, Homeowners appeared, represented by Attorney Gary Asteak. Attorney Asteak recited that the requested variance was for a covered deck attached to the back of the house and encroaching 18 feet into the 50-foot rear yard, thus leaving a 32-foot setback from the rear property line. He presented the testimony of Adam Pooler, the general contractor for the work on the addition and the deck. Mr. Pooler testified that: the half-acre lot was not created by Homeowners, but was a pre-existing lot that would not have been permitted under the current zoning regulations; the land behind the subject property is a farm consisting of 130 acres; given the size of the property and the design of the addition and proposed deck, he cannot construct the deck and still meet the ordinance's setback requirements; and the submitted design represents the minimum size for the deck to be functional as a covered deck, meaning that Homeowners were seeking the minimum variance that would afford the relief they wanted. He also pointed out that Homeowners used to have an above-ground pool and deck within the rear-yard setback area, that these items had been removed, and that the proposed new, covered deck would not extend as far back as did the pool and the old deck. See N.T., Sept. 11, 2018, at 5-11. When asked if construction of the deck would alter the essential character of the neighborhood, Mr. Pooler opined it would improve the neighborhood because the subject property would have enhanced curb appeal, and this would be unlikely to harm the next-door neighbors. See id . at 10.
At the October hearing, Attorney Asteak presented a topographical survey with a site plan showing the exact lot dimensions, confirming that the addition to the house is wholly within the building envelope, and reflecting that the proposed deck would intrude about 18 feet into the setback area.2 These documents also showed that Appellee Ruth Kneebone ("Objector"), Homeowners’ next-door neighbor, has a shed located on her property about 19 feet from the rear yard line. See N.T. Oct. 4, 2018, at 3-6. The only persons opposed to the variance were Objector and her son Jeffrey. Due to a medical condition, Objector was unable to speak, so Jeffrey spoke on her behalf.
At the September hearing, Jeffrey read into the record a letter written by his mother expressing that: she has lived at her current residence since 1965; she strongly agrees with the 50-foot setback requirement for properties in the farm and forest district; constructing improvements within that area appears intrusive to neighboring property owners; houses in the 1960s were small, whereas now larger homes are being placed on relatively small lots; many residents oppose this practice and prefer open space; and granting the requested variance would change the character of her home and rear yard and set a bad precedent. See N.T., Sept. 11, 2018, at 26-28. At the October hearing, Jeffrey testified on his own behalf and repeated many of these sentiments. See N.T., Oct. 4, 2018, at 11-15. On cross-examination, Jeffrey acknowledged that his mother owns a shed behind her house which intrudes approximately 31 feet into the rear setback area of her lot, and that a dimensional variance had to be obtained for its construction many years ago. See id . at 17, 29-31. However, he described the shed as smaller and less prominent than the construction proposed by Homeowners. See id . at 29, 31.
The Board approved the variance by unanimous vote. In its written decision, the Board made a number of factual findings based on the testimony and documents submitted. It observed, initially, that the land immediately behind the subject property is a 130-acre farm, there are no adjacent buildings or dwellings located in that area, and Objector herself has a shed located about 19 feet from the rear of her lot. The Board continued that: in view of the undersized dimensions of the lot in question, compliance with the dimensional requirements for setbacks creates a hardship; although Objector opposed the additions, most of the improvements to which she and her son articulated specific objections are located within the permitted building envelope, and only the deck encroaches into the setback;3 the structures at issue will be in the center of the property and will meet the zoning ordinance's side-yard setback requirements; the unique physical characteristics – i.e. , having open farmland directly behind the property, coupled with the fact that it is a small lot in a farm and forest district – are sufficient to justify relief; and the 18-foot encroachment into the rear-yard setback will not detrimentally impact the surrounding properties or the character of the neighborhood, particularly because, as noted, the property immediately behind the subject property is a large tract of open farmland. See In re Request for Dimensional Variance , No. 2018-06, Opinion at 8-9 (Plainfield Twp. Zoning Hearing Bd. Nov. 5, 2018) (Findings of Fact Nos. 51-60).
Objector sought review in the common pleas court, which affirmed based on the record made before the Board. The court noted, initially, that where (as here) it does not take additional evidence, the Board is the sole judge of witness credibility and evidentiary weight, and its decision is reviewed for an abuse of discretion. See Kneebone v. Plainfield Twp. Zoning Hearing Bd. , No. C-48-CV-2018-11586, 2019 WL 13131735 (C.P. Northampton June 7, 2019). The court elaborated that the Board acts within its discretion so long as its findings are...
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