January 7, 2010
STEVEN AND DEB BOYER, APPELLANTS
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.
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 a variance set forth in the MPC).
In support of their position, Applicants contend that their forty-two-acre mountaintop tract is unique because it includes an eight-and-one-half-acre plateau on which a house could be built, surrounded by steep slopes which in some cases exceed fifteen percent. They also argue that it is impossible to develop their property in strict conformity with the Ordinance because their parcel lies within a SCO that prohibits substantial improvements*fn8 if the property contains slopes of fifteen percent or more, and the portion of the tract beyond the plateau contains such slopes, which cannot possibly be leveled to fit within SCO requirements. Applicants point out that they did not create this unnecessary hardship and that they should be excused for their failure to realize their parcel was subject to the SCO zone because a single-family home already existed near the base of the mountain,*fn9 and the area was otherwise zoned for single-family dwellings.*fn10
Having considered Applicants' argument, we note that it is striking for what it does not purport; Applicants do not argue that the unnecessary hardship has not been caused by "the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located." Section 910.2(a)(1) of the MPC, 53 P.S. §10910.2(a)(1). Presumably, Applicants fail to make this argument because they cannot legitimately do so where even they admit that they "are unable to use the tract they own to erect a house because of the Steep Slope Overlay Regulation." (Applicants' brief at 19.) In other words, if it were not for the fact that the Property was within the SCO, there is no question that Applicants could erect their single-family residence on an eight-andone-half-acre plateau in the Open Space Zone. Given Applicants' failure to show that their unnecessary hardship arises from the unique physical circumstances of their property as opposed to the circumstances generally created by the Ordinance, an undoubtedly relevant criterion, we cannot agree with Applicants' assertion that the ZHB abused its discretion or committed legal error in denying their variance request.
Accordingly, we affirm.
AND NOW, this 7th day of January, 2010, the Order of the Court of Common Pleas of York County, dated March 6, 2009, is hereby affirmed.
ROCHELLE S. FRIEDMAN, Senior Judge
CONCURRING OPINION BY SENIOR JUDGE QUIGLEY
The Board and Court made and considered a record adequate to affirm the lower court action. But for the Open Space Ordinance and its Steep Slope Conservation Overlay, a variance was probably appropriate and maybe not even required. The Board presumably considered the existence of a road "to the top" as not adequate to address steep slope concerns.
With this brief statement of concern for the fact that an 8-acre "flat spot" within an overall 42-acre tract, otherwise adequate for a house, is not available for one, I nevertheless feel constrained to concur in the majority opinion.
KEITH B. QUIGLEY, Senior Judge