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Boyer v. Zoning Hearing Board of Franklin Township

January 7, 2010

STEVEN AND DEB BOYER, APPELLANTS
v.
ZONING HEARING BOARD OF FRANKLIN TOWNSHIP, FRANKLIN TOWNSHIP, RONALD GINGRICH AND KATHLEEN GINGRICH



The opinion of the court was delivered by: Senior Judge Friedman

Submitted: December 8, 2009

BEFORE: HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.

OPINION

Steven and DebBoyer, husband and wife (Applicants), appeal from the March 6, 2009, order of the Court of Common Pleas of York County (trial court), which affirmed the decision of the Zoning Hearing Board (ZHB) of Franklin Township (Township) denying their variance request. We affirm.

Applicants own approximately forty-two-acres of land on South Mountain in Franklin Township, York County (Property). The Property is located within the Open Space Zone of the Zoning Ordinance of Franklin Township (Ordinance) and the Ordinance's Steep Slope Conservation Overlay (SCO).*fn1 The SCO applies to all land within the Township that contains areas of fifteen percent or greater slope as well as any plateaus that are surrounded by the steep slopes.*fn2

Applicants wanted to build a single-family detached home on the Property, a use permitted in an Open Space Zone, and they submitted requests for zoning and building permits, which were conditionally issued by the Township on October 12, 2007. However, the Township zoning officer subsequently wrote to Applicants, stating that the permits were being recalled due to the construction prohibition set forth in section 205.C of the Ordinance, relating to the SCO. Specifically, Applicants sought to build their home on a plateau area of approximately eight and one-half acres, which area is surrounded by steep slopes exceeding fifteen percent. Applicants did not appeal from the zoning officer's determination but, instead, applied for a variance from the Ordinance's restrictions.

Following hearings, the ZHB issued a written decision denying Applicants' application. The ZHB observed: "The physical conditions of Applicants' Property are not the reason for which the variance is sought; rather, the physical conditions dictate application of the Steep Slope Conservation Overlay district to Applicants' Property and it is from the application of those zoning requirements that Applicants seek their variance." (Conclusion of Law No. 14, ZHB's decision, dated May 19, 2008).

The ZHB then concluded that Applicants did not meet the standards for a traditional variance set forth in Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC),*fn3 that they did not properly apply for a validity variance,*fn4 and that, in any event, any claim for a validity variance would likewise fail.*fn5

Applicants appealed from the ZHB's decision. Ronald and Kathleen Gingrich, who are neighboring property owners, and the Township then filed notices of intervention. The trial court, without taking any additional evidence, affirmed the ZHB's decision by order dated March 6, 2009.

On appeal to this court,*fn6 Applicants assert that the ZHB abused its discretion or committed an error of law by refusing to grant Applicants a variance for construction of their home on a plateau at the top of South Mountain, within the confines of the SCO. Applicants contend that this case involves a validity variance, but acknowledge that a party seeking such a variance must also comply with the "traditional" variance requirements. See, e.g., Laurel Point Associates v. Susquehanna Township Zoning Hearing Board, 887 A.2d 796 (Pa. Cmwlth. 2005), appeal denied, 588 Pa. 766, 903 A.2d 1235 (2006).

In that regard, section 910.2 of the MPC provides in relevant part:

(a) The [ZHB] shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The [ZHB] may by rule prescribe the form of application and may require preliminary application to the zoning officer. The [ZHB] may grant a variance, provided that all of the following findings are made where relevant in a given case:

(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.

53 P.S. § 10910.2 (emphasis added);*fn7 see also Section 602.D.1 of the Ordinance (restating the standards necessary for ...


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