Nowicki v.

• Decision Date: 06 May 2014
• Citation: 91 A.3d 287
• Court: Pennsylvania Commonwealth Court
• Parties: Henry NOWICKI and Barbara Nowicki, Husband and Wife v. The ZONING HEARING BOARD OF the BOROUGH OF MONACA v. The Borough of Monaca, Appellant.

91 A.3d 287

Henry NOWICKI and Barbara Nowicki, Husband and Wife

v.The ZONING HEARING BOARD OF the BOROUGH OF MONACA

v.The Borough of Monaca, Appellant.

Commonwealth Court of Pennsylvania.

Argued Nov. 12, 2013.

Decided May 6, 2014.

Richard Urick, Aliquippa, for appellant.

Albert A. Torrence, Beaver, for appellees Henry and Barbara Nowicki.

Joseph A. Askar, Beaver, for appellee Zoning Hearing Board of the Borough of Monaca.

BEFORE: LEADBETTER, Judge, and McCULLOUGH, Judge (P), and COLINS, Senior Judge.

OPINION BY Senior Judge COLINS.

The Borough of Monaca (Borough) brings this appeal of the Beaver County Court of Common Pleas (Trial Court) order that reversed the denial by the Zoning Hearing Board of the Borough of Monaca (ZHB) of an application for a use variance submitted by Henry and Barbara Nowicki (collectively the Nowickis). The Nowickis applied for the use variance in order to construct a single family dwelling in the Planned River–Oriented Development District (PROD) located in the Borough. We affirm.

The Nowickis purchased parcel number 34–003–0406.000 at 604 Atlantic Avenue in Monaca, Pennsylvania (Property). The Property is .176 acres or 7,666.56 square feet of land. (Land Survey, Reproduced Record (R.R.) at 135a.) Two days before the Sales Agreement to purchase the Property was executed, the Borough enacted Section 245–12 of the Borough Ordinance (Ordinance), which changed the zoning district within which the Property was located from the R–2, Single–Family and Two–Family Residential District to the PROD. (ZHB Opinion, Findings of Fact ¶¶ 9–10.) The stated purpose of Section 245–12 is:

to promote the private redevelopment of properties for higher residential use in an area of the Borough that has easy access to the river and the Borough's business district and to take advantage of the views of the river, the recreational opportunities afforded by the river and the Pump Station, as well as the shopping and services available within walking distance in the business district.

Ordinance § 254–12(A). Currently, twenty-two (22) single family residences exist in the PROD district and are located in the immediate vicinity of the Property. (July 13, 2011 Hearing Transcript (H.T.) at 17, R.R. at 53a.) As of January 1, 2010, no structure has existed on the Property; a residential dwelling that had been broken into six apartments was previously situated on the Property, but the dwelling fell into disrepair, was destroyed by a fire, and was subsequently demolished by the predecessor in interest to the Nowickis. (H.T. at 54–55, R.R. at 90a–91a.)

The Nowickis applied to the ZHB for a use variance in order to construct a single-family dwelling on the Property. Eight neighbors appeared in support of the application and representatives from the Borough appeared in opposition. ( See H.T., R.R. at 36a–107a.) The ZHB denied the application. The Nowickis appealed the ZHB's denial of a use variance for the Property to the Trial Court, arguing that the Ordinance was confiscatory and denied all economically viable use of the land. The ZHB argued that the Ordinance was not confiscatory because it permitted the Property to be used for both noncommercial and public recreation, and that the inability of the Nowickis to pursue a single-family residential use of the Property under the Ordinance did not establish an unnecessary hardship. See Ordinance § 245–12(B)(uses permitted by right in the PROD). The Trial Court reversed.

The Trial Court concluded that: (a) the Ordinance created an unnecessary hardship; (b) the unnecessary hardship had not been created by the Nowickis; (c) the variance would not alter the essential characterof the neighborhood, nor would it be detrimental to the public welfare; (d) the variance amounted to the minimum variance that would afford relief; and (e) refusal to grant a variance amounted to a confiscation of the Property. (Trial Court April 8, 2013 Opinion and Order.) The Trial Court based its conclusions on the fact that the size of the Property prevented a reasonable use of the Property in strict conformance with the Ordinance. ( Id. at 16.) The Borough and the ZHB (collectively Appellants) appealed the order of the Trial Court to this Court.

Before this Court, Appellants argue that the Nowickis have not satisfied the criteria necessary for variance relief. Appellants contend that: (i) the Nowickis have not established that the Ordinance so strictly regulates the Property that it is valueless for any permitted purpose, amounting to an unnecessary hardship by confiscation; and (ii) that if an unnecessary hardship does exist, it was self-inflicted.¹ Appellants also argue that the Trial Court's opinion to the contrary was in error and that the ZHB acted properly when it denied the Nowickis' application for a variance.

A variance, like a special exception, is issued by a zoning hearing board; however, unlike a special exception, a variance is not provided for in the zoning ordinance, but is permission to deviate from the ordinance in either the dimensions of the improvements made to the land or in the use of the land. A variance is the proper relief where an unnecessary hardship attends the property; a variance cannot provide relief where a hardship afflicts the property holder's desired use of the land and not the land itself. Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa.Cmwlth.2001). Although zoning ordinances are to be liberally construed to allow for the broadest possible use of the land, the applicant seeking a variance bears a heavy burden. See Beers ex rel. P/O/A Beers v. Zoning Hearing Board of Towamensing Township, 933 A.2d 1067, 1069 (Pa.Cmwlth.2007) (the letter of the ordinance cannot be disregarded under the pretext of pursuing the spirit); Borough of Latrobe v. Paul B. Sweeney, 17 Pa.Cmwlth. 356, 331 A.2d 925, 927 (1975) (personal and economic considerations are not sufficient grounds upon which to base the grant of a variance). The reasons for granting a variance must be substantial, serious, and compelling. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).

Section 910.2 of the Municipalities Planning Code ² (MPC), requires an applicant seeking a variance to show, where relevant:

(1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions;

(2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property;

(3) That unnecessary hardship has not been created by the applicant;

(4) That the variance is not detrimental to the public welfare; and

(5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue.

53 P.S. § 10910.2; see also Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (1998); Seipstown Village, LLC v. Zoning Hearing Board of Weisenberg Township, 882 A.2d 32, 39–40 (Pa.Cmwlth.2005). Whether an applicant is seeking a use or a dimensional variance, the applicant must, at a minimum, demonstrate that an unnecessary hardship will result if a variance is denied and that the proposed use will not be contrary to the public interest. Hertzberg, 554 Pa. at 257, 721 A.2d at 47. In the context of a use variance, an applicant must establish that an unnecessary hardship attends the land with evidence that: (a) the physical conditions of the property are such that it cannot be used for a permitted purpose; or (b) the property can be conformed for a permitted use only at a prohibitive expense; or (c) the property is valueless for any purpose permitted by the zoning ordinance. Id. While an unnecessary hardship can be established by demonstrating that the hardship falls squarely within one of these three categories, in practice the evidence presented often does not fit neatly in one category or another but overlaps. When evaluating an unnecessary hardship, use of adjacent and surrounding land is relevant. Valley View, 501 Pa. at 556, 462 A.2d at 640. Once an applicant has demonstrated that the property is subject to an unnecessary hardship, the party must also demonstrate that the conditions are unique to the property; where the hardship is present in the district as a whole or in a portion of the district, the proper remedy is re-zoning rather than a variance. Pohlig Builders, LLC v. Zoning Hearing Board of Schuylkill Township, 25 A.3d 1260, 1272 (Pa.Cmwlth.2011).

The vast majority of instances where an unnecessary hardship attends the land arise from the physical characteristics of the property. See, e.g. Larsen v. Zoning Board of Adjustment of City of Pittsburgh, 543 Pa. 415, 426, 672 A.2d 286, 291 (1996) (precipitously steep backyard that was not unique to the property, but common in the neighborhood as a whole, did not create an unnecessary hardship). Typical examples of physical characteristics that create an unnecessary hardship are irregularity, narrowness, shallowness, and exceptional topography. See, e.g., Young v. Pistorio, 715 A.2d 1230, 1232 (Pa.Cmwlth.1998) (unique physical conditions peculiar to the property were found where the property was located on a curve and shaped like a quarter section of a circle). Less common than an unnecessary hardship due to the physical characteristics of the land, but typically relevant in high-density areas or where the land has suffered environmental contamination, is an unnecessary hardship due to the prohibitive expense of conforming a property to a permitted purpose under the ordinance. See, e.g. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225 (1997) (variance to construct open-air parking lot in area zoned multi-family residential granted...