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07/25/97 CHRISTINE A. SWEMLEY v. ZONING HEARING

July 25, 1997

CHRISTINE A. SWEMLEY
v.
ZONING HEARING BOARD OF WINDSOR TOWNSHIP AND WINDSOR TOWNSHIP; WINDSOR TOWNSHIP, APPELLANT



Appealed From No. 95-SU-03338-08. Common Pleas Court of the Couty of York. Judge CHRONISTER.

Before: Judge Joseph T. Doyle, Judge Bonnie Brigance Leadbetter, Judge Jess S. Jiuliante, Senior Judge.

The opinion of the court was delivered by: Leadbetter

OPINION BY JUDGE LEADBETTER

The Court of Common Pleas of York County reversed the Windsor Township Zoning Hearing Board's order denying Christine Swemley's application for a de minimis variance. Windsor Township now appeals, and after review, we reverse.

Swemley wished to build an addition to her home. Toward this end, she drew up plans for the addition and, on February 3, 1995, submitted them in application to the Township for a building permit. The plans for the addition showed that the addition would be flush with the existing front setback of the home. The Township approved Swemley's application the day it was filed.

Soon after Swemley's addition was completed, a Township zoning officer inspected Swemley's property and discovered that she had built a larger addition than that shown in her permit application. This larger addition extended beyond her residence by ten feet and, thereby, was in clear violation of the Township's front setback requirement. The Township notified Swemley of this violation, and she filed a timely application for a variance.

The Board heard Swemley's application on June 28, 1995, and denied the variance requested because Swemley did not establish unnecessary hardship. *fn1 Swemley appealed this denial to the court of common pleas, arguing for the first time on appeal that, even if she were not entitled to a traditional variance, she still was entitled to a de minimis variance. The court of common pleas found that the Board had failed to evaluate whether Swemley was entitled to a de minimis variance. Based on this finding, the court remanded the matter for a further hearing.

After conducting a second hearing, the Board denied Swemley's request for a de minimis variance, finding that Swemley's addition resulted in a 34% deviation and concluding that this deviation was not de minimis as a matter of law. On January 4, 1996, Swemley filed her second appeal to the court of common pleas. In this appeal, Swemley argued that the Board abused its discretion by denying her a de minimis variance solely based upon a mathematical evaluation. In its second opinion, the court of common pleas agreed with Swemley and again remanded the matter for further hearings, this time with specific instructions that the Board consider how granting Swemley's variance would compromise the goals of the front setback requirement in light of the fact that the Board previously had permitted a similar deviation in the neighborhood.

On May 22, 1996, the Board heard the matter for the third time and, for the third time, denied the variance requested. At this third hearing, it was established that the Board had not granted Swemley's neighbor a variance for his similar deviation. Instead, the neighbor's deviation was allowed as part of a mistakenly-granted building permit. Swemley again appealed. In this third appeal, Swemley again argued that the variance requested was de minimis because the public policy goals of the ordinance had already been compromised by a previously-allowed deviation in Swemley's neighborhood. On November 6, 1996, the court reversed the order of the Board, finding that the Board had not shown that granting a variance to Swemley would create any threat to the public policy goals beyond the threat already created by the previously-allowed deviation. *fn2 It is this reversal that the Township now appeals.

"The de minimis doctrine is an extremely narrow exception to the heavy burden of proof which a party seeking a variance must normally bear." King v. Zoning Hearing Bd. of the Borough of Nazareth, 76 Pa. Commw. 318, 463 A.2d 505, 505 (Pa. Commw. 1983). *fn3 This exception may be applied where (1) only a minor deviation from the zoning ordinance is sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the public interests sought to be protected by the ordinance. Township of Middletown v. Zoning Hearing Bd. of Middletown Township, 682 A.2d 900, 902 (Pa. Commw. 1996); Constantino v. Zoning Hearing Bd. of the Borough of Forest Hills, 152 Pa. Commw. 258, 618 A.2d 1193, 1196 (Pa. Commw. 1992). The determination of whether or not the de minimis doctrine applies requires careful consideration of both of these factors. Accordingly, as with a traditional variance, *fn4 it is essential that the granting of a de minimis variance be decided on a case-by-case basis.

Over the course of its three hearings, the Board reached the following Conclusions:

1. Swemley failed to show unnecessary hardship and, therefore, was not entitled to a traditional variance.

2. Swemley violated the Township's ordinance by a deviation of 34%, and she was not entitled to a de minimis variance because her deviation was not de minimis as a matter of law.

3. Swemley's deviation significantly undermined the underlying policy goals of the Township front setback requirement such that the deviation ...


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