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Tidd v. Lower Saucon Township Zoning Hearing Board

Commonwealth Court of Pennsylvania

May 29, 2015

David Tidd, Appellant
v.
Lower Saucon Township Zoning Hearing Board, Green Gable Investment Partners, LP, and Lower Saucon Township

Argued March 11, 2015

Appealed from No. CV-0048-2013-1324. Common Pleas Court of the County of Northampton. Smith, J.

James F. Preston, Bethlehem, for appellant.

George A. Heitczman, Bethlehem, for appellee Lower Saucon Township Zoning Hearing Board.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge.

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OPINION

ROBERT SIMPSON, J.

In this zoning appeal, David Tidd (Objector) asks whether the Lower Saucon Township Zoning Hearing Board (ZHB) erred in granting Green Gables Investment Partners, LP's (Applicant) request for a dimensional variance from the Lower Saucon Township Zoning Ordinance's (zoning ordinance) requirement that all areas used to corral or pasture horses be at least 100 feet from all lot lines. Because the ZHB's findings are amply supported by the record and because, as recently restated by our Supreme Court in Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014), we must afford substantial deference to those findings, particularly the determination that Applicant satisfied the unnecessary hardship criterion, we decline to disturb the ZHB's decision granting the requested dimensional variance. Thus, we affirm.

I. Background

Kathleen Mills (Mrs. Mills) is the sole owner of Applicant, which owns the property

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located at 2142 Leithsville Road (subject property). The subject property, which is comprised of 24.622 acres and is currently vacant, lies in a Rural Agricultural (RA) zoning district.

Mrs. Mill's daughter, Kathryn Mills (Ms. Mills), and Ms. Mills' husband, Luke Dellmyer (Dellmyer), seek to operate a horse farm and riding business on the subject property, which is a permitted use in an RA zoning district. See Section 180-19(A)(1)(b) of the zoning ordinance. The subject property is bordered entirely by a 40-foot tree line. Another tree line essentially bisects the subject property. The subject property is also encumbered by an extensive utility easement.

In November 2012, Applicant filed an application for a variance from Section 180-103(B)(2) of the zoning ordinance, which states: " All buildings used to shelter horses and all areas used to corral or pasture horses shall be at least 100 feet from all lot lines (except along roads)." Id.

The ZHB held a hearing on Applicant's dimensional variance request.[1] In support of its request, Applicant presented the testimony of three witnesses: Mrs. Mills, Ms. Mills and Dellmyer. They testified in relevant part as follows.

Lucky Shoe Farms, a business owned by Ms. Mills, Mrs. Mills' daughter, seeks to operate a horse and riding business on the subject property once the improvements are constructed. Also, Ms. Mills and her family will occupy a residence on the subject property.

Ms. Mills testified the business is " [g]eared toward educating riding for people interested in showing or competing nationally as well as locally, riding facility for boarding, training horses, and riding lessons." ZHB Hearing, Notes of Testimony (N.T.), 12/17/12, at 8; Reproduced Record (R.R.) at 16a. Applicant proposes to construct a barn that would contain 26 stalls. Applicant does not intend to keep the maximum number of horses permitted by the zoning ordinance on the subject property, and it is willing to condition any zoning relief on having a number of horses less than the amount permitted by right under the zoning ordinance.[2] Specifically, based on the size of the subject property, Applicant could keep 52 horses on the subject property by right under the zoning ordinance. However, Applicant would agree to limit the number of horses on the subject property to a maximum of 36.

Although Ms. Mills previously worked at areas with " far less pastures and more horses," the 14 pastures proposed is the appropriate number of pastures to operate

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the farm successfully. N.T. at 16; R.R. at 24a. Additionally, the number of pastures reflects Applicant's attempt to have a limited number of horses per pasture to maximize the grass remaining at the subject property. As a condition of obtaining approval for the variance, Applicant would limit tree removal to two cuts in the tree line that bisects the subject property in order to allow horses to get to the lower pastures.

For his part, Dellmyer testified that he and Ms. Mills will live in a residence built on the subject property, and they will work together at Lucky Shoe Farms. Dellmyer described the subject property as follows:

The [subject property] is roughly 25 acres. The whole property pretty much has roughly about a 40-foot tree line around the border of the [subject] property. Then there is another tree line that passes through the middle of the [subject] property pretty much exactly in the middle. There is a passage open to the easterly side, maybe about 50 foot wide for the power line and gasline easement which also intersects at the top of the property line where it continues up through Saddle Ridge Development.

N.T. at 11; R.R. at 19a. The subject property does not currently contain any improvements. Rather, it is currently farmed for summer wheat.

As to the proposed improvements on the subject property, Applicant plans to initially build an agricultural building in which it would store equipment used to maintain the pastures. Applicant intends to have eight large pastures, two medium pastures, and four " turn-out" pastures. N.T. at 13; R.R. at 21a.

Applicant requires zoning relief for the western side of the proposed northwestern most pasture because that pasture would be 69 feet from the boundary line and the zoning ordinance requires a 100-foot setback. Additionally, the top two pastures south of the proposed stable in the riding area are both 69 feet from the western boundary. On the southern part of the subject property, the proposed fence is 54 feet from the boundary line at its closest point. Further, the eastern pastures at the northern part of the subject property are both 80 feet from the boundary line. The proposed southernmost pasture on the western boundary line satisfies the 100-foot setback requirement.

Dellmyer also offered the following testimony on direct examination:

Q. Is there anything unique about the property that makes having the pastures in this location appropriate?
A. Sure. We had spoke about this in the last meeting as well. Originally we had thought about maybe clearing out some of the trees at the property line to exercise the horses. The more we stepped back to look at the property, it is so unique to keep the tree line and would be nice if we can move the pastures into the tree line to maximize the pasture.
With that 100 feet, I believe we lost about six and a half acres total. So even without -- in order to keep the uniqueness of the property, we would like in return to get the variance to make the pastures a little bit bigger and get more usable land.
Q. Am I correct that you could put a parameter [sic] fence on the boundaries, not something that would be corralling horses?
A. Correct.
Q. To do that, would you have to remove the same amount of trees?
A. Exactly.

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Q. Makes sense. Would you agree that removing trees to add in this area is wasteful?
A. Yes.
Q. Is it also something that would potentially make you[r] budget for the project higher, removing trees and adding additional fence?
A. Sure. Yeah.
Q. Based on the number of pastures and the tree line that is surrounding the property, do you believe that the site plan is really the best site plan for your proposed use?
A. I believe it is, yes.
Q. And do you believe this is the minimum relief necessary to use the property as you see fit?
A. Yes.
Q. And I guess ultimately is it -- is the tree line, in your opinion, a physical condition that requires this zoning relief?
A. Yes.

N.T. at 18-20; R.R. at 26a-28a (emphasis added). Dellmyer further testified:

Q. In the event this relief was not granted, would you consider removing trees and putting a parameter [sic] fence closer to the boundary line to get the area you need to exercise horses?
A. Absolutely. The land is just the amount of land that we need to make this operation work. If we can't get the relief, we will have to make ...

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