Wilson v. Plumstead Tp. Zoning Hearing Bd.

• Citation: 936 A.2d 1061
• Decision Date: 27 December 2007
• Docket Number: No. 126 MAP 2006.,126 MAP 2006.
• Parties: A. Rhoades WILSON, Appellant v. PLUMSTEAD TOWNSHIP ZONING HEARING BOARD, Appellee.
• Court: United States State Supreme Court of Pennsylvania

936 A.2d 1061

A. Rhoades WILSON, Appellant v. PLUMSTEAD TOWNSHIP ZONING HEARING BOARD, Appellee.

No. 126 MAP 2006.

Supreme Court of Pennsylvania.

Argued April 17, 2007.

Decided December 27, 2007.

Robert W. Gundlach, Kimberly A. Freimuth, Fox Rothschild, L.L.P., Warrington, for A. Rhoades Wilson, appellant.

Jonathan Joseph Reiss, John B. Rice, H. Peter Nelson, Grim, Biehn & Thatcher, P.C., Perkasie, for Bd. of Supervisors of Plumstead Tp., appellee.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice BALDWIN.

Appellant A. Rhoades Wilson (Wilson) appeals from the Commonwealth Court decision denying his application for a variance to use his property solely for an accounting office, and not operate the business as an accessory to a principal use as a residence. We affirm the decision of the Commonwealth Court.

Wilson owns a parcel of land, tax parcel number 34-34-12, that is approximately 2.54 acres and is located on U.S. Route 611 in an R-2 Residential Zoning District in Plumstead Township, Bucks County. In 2003, Wilson purchased the subject property aware of the R-2 zoning.¹ Wilson applied for and was granted a building permit after being informed by a zoning officer of the requirement to have a permit after he had begun renovations to the residence on the property. Despite the appearance that the renovations were for an office only, Wilson assured the building inspector that the building would be a residence with a home occupation, a use permitted in the R-2 Zoning District. Wilson was later issued an Enforcement Notice when it was discovered that after renovations were completed, he was impermissibly operating an office but not residing at the property. Wilson filed an application with the Zoning Hearing Board (ZHB) requesting a variance to use the property as an F3 Professional Office permitting him to operate his accounting business without living there. He did not appeal the Enforcement Notice. After a hearing, the Zoning Hearing Board denied Wilson's application for a variance, finding that the property could be reasonably used as a residence with a home occupation.

Wilson appealed, and the trial court held a hearing at which it took additional evidence.² The trial court found that the properties surrounding the Wilson property were "dissimilar," noting that within a one mile stretch of Route 611 the uses vary from a farm stand to a large shopping center. Wilson v. Plumstead Twp. Zoning Hearing Bd., No. 2004-02496-18-5, slip op. at 4 (Court of Common Pleas of Bucks County Mar. 8, 2005) (Trial Court opinion). The trial court noted that south of the subject property was a parcel used by Carversville Plumbing, a contracting business operated from the owner's home, a church which holds religious services and has a day care facility, and a tree farm and nursery. The trial court found that just north of the property is a residence also used as a plumbing contractor, five parcels north is a residence also used as the headquarters of a concrete contractor, followed by a tavern, auto body shop, car dealer, bank, and a large shopping center. Trial Court opinion at 4-6. Across from the subject property, the trial court determined there is a farm with seasonal farm operations, a church, a residence also used as a landscaping business, a doctor's office, and a residence with the office of an excavation company. Trial Court opinion at 6-7.

Relying on Valley View Civic Assoc. v. Zoning Bd. of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983) (Valley View) and E. Torresdale Civic Assoc. v. Zoning Bd. of Adjustment, 536 Pa. 322, 639 A.2d 446 (.1994) (E. Torresdale), the trial court explained that to grant a variance, it had to find there was an unnecessary hardship unique to the subject property. Trial Court opinion at 10. The trial court so found, determining that due to the surrounding "dissimilar and disharmonious" uses and the location on Route 611, "mandating the Property be used for residential purposes is impractical." Id. at 11-12.

The Commonwealth Court reversed, finding fault with the trial court's use of the Valley View and E. Torresdale cases because both concerned applicants seeking a variance in Philadelphia. Wilson, 894 A.2d at 850. When the Court of Common Pleas takes additional evidence in an appeal from a ZHB decision, the appellate court's standard of review is making a determination as to whether that court's decision, and not the decision of the ZHB, is supported by the evidence and is free of legal error. Robertson v. Henry Clay Twp. Zoning Hearing Bd., 911 A.2d 207, 208 n. 1 (Pa.Commw.Ct.2006), alloc. denied, 592 Pa. 792, 927 A.2d 626 (2007).

The Municipalities Planning Code (MPC) enables local municipalities to enact and enforce zoning ordinances. 53 P.S. § 10101 et seq. Philadelphia is not covered by the MPC and has enacted its own zoning ordinance. The MPC applies to Plumstead Township. 53 P.S. § 10107.

The Commonwealth Court described what it found to be the test for the grant of a variance in Philadelphia:

In Philadelphia, an applicant for a use variance must establish: (1) unique hardship to the property; (2) no adverse effect on the public health, safety or general welfare; and (3) that the variance will represent the minimum variance that will afford relief at the least modification possible.

Wilson, 894 A.2d at 850 (citing E. Torresdale, 536 Pa. at 324-25, 639 A.2d at 447). The test provided by the court for municipalities covered by the MPC was:

(1) an unnecessary hardship will result if the variance is denied, due to the unique physical circumstances or conditions of the property; (2) because of such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship is not self-inflicted; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.

Wilson, 894 A.2d at 850 (emphasis in original) (citing Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 811-12 (Pa.Commw.Ct.2005)).

The Commonwealth Court determined that Wilson did not meet the MPC standard for the grant of a variance, failing to show that he did not establish the unnecessary hardship or that he could not make reasonable use of the property without a variance. Wilson, 894 A.2d at 853-54. We affirm, based, however, on different reasoning.³

While we find that Valley View and E. Torresdale do not apply solely to Philadelphia zoning cases, but to zoning cases statewide, we do note that the Philadelphia Zoning Ordinance must be applied to cases located in Philadelphia and the MPC must be applied to cases located in municipalities covered by the MPC. Initially, we note that in Valley View this Court cited cases concerning zoning matters in Philadelphia and in other municipalities that are covered by the MPC when stating the rules for granting a variance.⁴ Cases cited in Valley View for those standards include Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970) (Delaware County); Jasy Corp. v. Bd. of Adjustment, 413 Pa. 563, 198 A.2d 854 (1963) (Montgomery County); Peirce v. Zoning Bd. of Adjustment, 410 Pa. 262, 189 A.2d 138 (1963) (Montgomery County); McClure's Appeal, 415 Pa. 285, 203 A.2d 534 (1964) (Delaware County); Enokay, Inc.'s Application, 407 Pa. 593, 181 A.2d 842 (1962) (Montgomery County); Dishler v. Zoning Bd. of Adjustment, 414 Pa. 244, 199 A.2d 418 (1964) (Montgomery County); Nicholson v. Zoning Bd. of Adjustment, 392 Pa. 278, 140 A.2d 604 (1958) (Lehigh County); Avanzato Appeal, 44 Pa.Cmwlth. 77, 403 A.2d 198 (1979) (Berks County); Bd. of Commissioners of Upper Moreland Twp. v. Zoning Bd., 25 Pa.Cmwlth. 626, 361 A.2d 455 (1976) (Montgomery County); and Haverford Twp. v. Zoning Hearing Bd. of Haverford, 21 Pa.Cmwlth. 207, 344 A.2d 758 (1975) (Delaware County). Valley View, 462 A.2d at 640.

In Valley View we explained that:

The standards governing the grant of a variance are . . . well settled. The reasons for granting a variance must be substantial, serious and compelling. The party seeking the variance bears the burden of proving that (1) unnecessary hardship will result if the variance is denied, and (2) the proposed use will not be contrary to the public interest. The hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district. Moreover, mere evidence that the zoned use is less financially rewarding than the proposed use is insufficient to justify a variance.

Id. (citations omitted).

Pursuant to the Philadelphia Zoning Ordinance, criteria to be considered in determining if a variance should be granted in that City include:

(a) that because of the particular physical surrounding, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of this Title would result in unnecessary hardship;

(b) that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought;

(c) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property (d) that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant;

(e) that the grant of the variance will not substantially increase congestion in the public streets;

(f) that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety;

(g) that the grant of the variance will not overcrowd the land or create an undue concentration of population;

(h) that the grant of the variance will not impair an adequate supply of light and air to adjacent...