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Pham v. Upper Merion Twp. Zoning Hearing Bd.

Commonwealth Court of Pennsylvania

April 10, 2015

Anh Pham and Roland W. Muller From the Decision of the Upper Merion Township Zoning Hearing Board Dated March 20, 2013
Upper Merion Township Zoning Hearing Board. Appeal of: Anh Pham and Roland W. Muller

Argued February 9, 2015

Page 880

Appealed from No. 13-09246. Common Pleas Court of the County of Montgomery. O'Neill, J.

Robert J. Iannozzi, Jr., Lansdale, for appellants.

Bernadette A. Kearney, Lansdale, for appellee Upper Merion Township.

Julie L. Von Spreckelsen, Blue Bell, for appellee Upper Merion Township Zoning Hearing Board.



Page 881


Anh Pham and Roland W. Muller, husband and wife, (Appellants) appeal from the November 25, 2013 order of the Court of Common Pleas of Montgomery County (trial court) which affirmed the decision of the Upper Merion Township Zoning Hearing Board (ZHB). The ZHB's decision reflects a tie vote of the ZHB's members, which has the effect of maintaining the status quo, i.e., a denial of Appellants' request for a use variance. Section 906 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10906.[1]

Appellants filed an application for a variance from section 165-22 of the Upper Merion Township Code, which governs use regulations in an R-1 single-family zoning district. Appellants seek the variance in order to use the property situated at 123 Gypsy Lane as a " bed and breakfast" (B& B). The ZHB held a hearing on February 6, 2013, after granting Appellants' request for a continuance in order to obtain counsel.

At the hearing, Appellants' counsel (Counsel) entered twelve exhibits into evidence. (Reproduced Record (R.R.) at 10a-14a.) Counsel's lengthy opening statement was subsequently adopted by Appellants as their own sworn testimony and can be summarized as follows.

Appellants' property comprises approximately two-and-a-half partially wooded acres and is improved with a six thousand square foot, two-and-a-half-story, single-family Georgian-type structure that was constructed in 1904 and enlarged in 1920. The home has twenty rooms: seven bedrooms, six and one half bathrooms, two dining rooms, a kitchen, a living room, and a den. The property is within the township's R-1 Residential District, and it is surrounded by roadways, a railway, an expressway, and township-owned property. The property uses public water and has a private on-lot septic system. (R.R. at 16a-20a.)

In Counsel's opinion, the home is now functionally obsolete due to its size, allocation of internal space, and the cost to heat

Page 882

and maintain it. The annual costs for heat and water alone exceed $20,000. Under these circumstances, the property cannot be reasonably used as a single-family dwelling and is better suited for use as a group home or a municipal office, both of which are permitted by right in the R-1 district. (R.R. at 21a-22a.)

Appellants sought the use variance in order to operate a year-round B& B in the current dwelling on the property. The B& B would provide breakfast, but not lunch and dinner. (R.R. at 22a-23a.) To accommodate a maximum number of fourteen guests (two per room), Appellants proposed to add nine parking spaces to the two existing parking spaces, thereby providing space for one vehicle per bedroom, two spaces for Appellants or staff, and two additional spots. Appellants would follow appropriate screening ordinances in regards to the added parking, and that in all other ways the proposal would be compliant with township ordinances. (R.R. at 23a-24a.)

Appellants would not make additions to the house other than for fire escapes and a small, second-floor deck, which would be integrated into one of the fire escapes. There will be no other exterior or architectural changes to the building, and the exterior space would only be changed to provide the added parking and buffering and additional landscaping. This landscaping would buffer the property from roadways on two sides and would beautify the area.

Any outdoor lighting would be residential, and not commercial in nature. Signage would be in compliance with local ordinances and if Appellants desired additional signage, they would apply to the ZHB for permission in the future. Given the continued residential use of the property and the high traffic volume in the surrounding area, the proposal would not additionally impact traffic. (R.R. at 24a-26a.)

Appellants have operated a B& B in Media, Pennsylvania, and that successful experience would lead to a positive result here, should the use variance be granted. (R.R. at 26a-28a.)

Counsel asserted that Appellants satisfied the criteria for the grant of a variance under section 910.2 of the MPC,[2] in that: (1) the property is unique, and the dwelling's age and size make it functionally obsolete, creating an unnecessary hardship; (2) due to those circumstances the property cannot be used as a single-family dwelling in strict conformity with R-1 use regulations, making the variance necessary to enable reasonable use of the property; (3) since Appellants did not build the dwelling, they did not create the unnecessary hardship; (4) if granted, the variance relief will not alter the essential character of the neighborhood, nor impair the use or development of adjacent property, nor be detrimental to the public welfare, because the property will still be used in a residential manner; and (5) Appellants' requested relief represents the minimum variance that will afford relief and the minimum modification of the regulation possible; specifically because the relief would allow Appellants reasonable residential use of the property. Finally, Counsel noted that the township had withdrawn its initial opposition to the variance. (R.R. at 29a-31a.)

Both Appellant Muller and Ellen Renish, Appellants' expert witness, testified that they would adopt Counsel's entire ...

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