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Home My WebLink About2007-1194 Civil STEVEN CLARKE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : ZONING HEARING BOARD OF : NEW CUMBERLAND BOROUGH, : CUMBERLAND COUNTY : 07-1194 CIVIL TERM IN RE: APPEAL FROM DENIAL OF A VARIANCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 22, 2007:-- Steven Clarke is the owner of two adjacent lots in the Borough of New January 21, 2004 Cumberland that he purchased on . He lives in a residence on a 1.02 acre lot. The adjacent lot is .58 acres. Clarke sought a building permit to construct a house on the .58 acre lot which is in a residential R-1A zone under the Borough of New Cumberland Zoning Ordinance. The lot has sufficient area and dimensions under the Zoning Ordinance to construct a house. However, it has 29.8 feet of frontage on a cul- de-sac on Charles Street which is short of the required 100 feet of street frontage required under the Zoning Ordinance. A building permit was denied. Clarke then February 1, 2007 sought a variance from the street frontage requirement. On , the Zoning Hearing Board of the Borough of New Cumberland denied the variance. The Board found that Carol Street is a 55 foot wide right-of-way extending to the northwestern boundary of the .58 acre lot, and that Clarke could meet the street 07-1194 CIVIL TERM frontage requirement in the Zoning Ordinance by extending Carol Street along the western boundary of his lot and dedicating it to the Borough of New Cumberland. The Board concluded that Clarke can develop the lot in strict conformity with the provisions of the Zoning Ordinance, that the required variance does not represent the minimum variance that will afford relief, and that any hardship was created by his predecessor in 1 title. May 17, 2007 Clarke filed this appeal. The issues were briefed and argued on . Having not taken additional evidence, our scope of review is whether there was an Great Valley error of law or an abuse of discretion by the Zoning Hearing Board. See School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Commw. 2004). An abuse of discretion is where findings are not supported by Id. substantial evidence. Substantial evidence is such relevant evidence as a Id. reasonable mind might accept as adequate to support a conclusion. Despite the fact that this is an appeal from a denial of a variance, Clarke maintains that the Zoning Hearing Board erred as a matter of law when it concluded that the 100 feet street frontage requirement in the Zoning Ordinance was applicable to his .58 acre lot that was laid out prior to the inclusion of that street frontage requirement in the Zoning Ordinance. He argues that he is entitled to build a house on the non- conforming lot. The Pennsylvania Municipalities Planning Code at 53 P.S. Section __________ 1 Clarke’s predecessor in title, who purchased the lots in 1964, used the .58 acre lot as an additional yard for the house on the 1.02 acre lot. -2- 07-1194 CIVIL TERM 10107(a) defines a “Non-conforming lot” as: alot the area or dimension of whichwas lawful prior to the adoption or amendment of a zoning ordinance , but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment. (Emphasis added.) The 100 foot street road frontage requirement was in the Zoning Ordinance when Clarke purchased both of his lots. The .58 acre lot, on which there is no house, and which is approximately 100 feet in width and 250 feet in depth, meets the Zoning Ordinance area and dimension requirements for the construction of a house. Therefore, it is not a Non-conforming lot. Clarke maintains that the Zoning Hearing Board erred as a matter of law in denying a variance because he could meet the street frontage requirement in the Zoning Ordinance by dedicating some of his land to redirect Carol Street so that his lot will have 100 feet of street frontage. He notes that he will have to dedicate some of his property to redirect the street in order to obtain the required width and thus obtain the 100 feet street frontage he needs. He argues that he cannot do this without obtaining the approval of the Borough of New Cumberland and discretionary waivers. In Zimmerman v. Zoning Board of Adjustment of the City of Philadelphia , 654 A.2d 1054 (Pa. 1995), Thackeray owned a 2.76 acre lot at 1066 Welsh Road in Philadelphia. The Supreme Court noted: The lot is rectangular in shape and fronts in the east by Welsh Road for approximately 260 feet. It extends in a westerly direction for approximately 430 feet. The lot is located in a residential district zoned for detached single family dwellings. In 1990, Thackeray submitted a -3- 07-1194 CIVIL TERM proposed subdivision plan to the Philadelphia City Planning Commission in which Thackeray would subdivide the lot into six lots by constructing a street ending in a cul-de-sac which would run perpendicular to Welsh Road. A detached single family dwelling would be built on each of the six lots, with proposed lots numbers 2, 3, 4 and 5 being interior lots facing only the cul-de-sac. The Philadelphia Code requires that all single family dwelling lots have a minimum street frontage of two-thirds the minimum lot width. Code § 14-231(5)(a). The Code further defines a street as “[a] strip of land, including the entire right-of-way, confirmed upon the City plan, intended for use as a means of vehicular and/or pedestrian traffic. . . .” Code § 14-102(52). To be confirmed upon the City plan, an owner must obtain the City Council’s approval and the street must be dedicated to the City. If and when the proposed cul-de-sac is placed upon the City Plan, lots 2-5 will have sufficient street frontage as required by Code § 14- 231(5)(a); however, until that time only lots 1 and 6 meet the minimum street frontage requirements. Thackeray was denied a building permit because lots 2-5 would become interior lots having no street frontage. He then sought a variance from the street frontage requirement which was granted by a zoning hearing board. The Court of Common Pleas of Philadelphia affirmed. The Commonwealth Court of Pennsylvania affirmed and based its finding of hardship on the fact that if the City refused to accept dedication of the street, the proposed lots would be landlocked, and therefore a hardship would be created. On appeal, the Supreme Court of Pennsylvania noted that the lots met the dimensional requirements of the Philadelphia Code in every way. The Court concluded: We find the Commonwealth Court’s conclusions under the circumstances of this case to be premature and incorrect. Specifically, the Commonwealth Court premised its finding of unnecessary hardship on the fact that if City Council refuses to dedicate the street as a public street, the proposed lots will be landlocked. See Malakoff v. Board of -4- 07-1194 CIVIL TERM Adjustment of the City of Pittsburgh, 72 Pa.Commw. 109, 456 A.2d 1110 (1983). The court went further to hold that the hardship was not self- created because the hardship would be created by City Council’s actions, which are out of the control of Thackeray. We find this holding disturbing in that it would appear to permit a party seeking a variance on hardship grounds to show hardship in any case where the exercise of discretion by a political body could be potentially adverse to that party. (Footnotes omitted.) The Court stated that, “If City Council accepts the dedication of the street, no variance is required at all. . . . Here, Thackeray cannot avoid the initial decision of the duly empowered legislative body by attempting an end run and seeking a variance from the Zoning Board. . . .” The order of the Commonwealth Court was reversed. sub judice, In the case we agree with the Zoning Hearing Board that Clarke is in the same position as anyone else who wants to develop their land. Developers are routinely required to dedicate and install streets. Clarke has the land to dedicate, so if discretionary waivers are issued and a dedication is accepted by the Borough of New Cumberland he can meet the 100 feet street frontage requirement to build on his lot Zimmerman without the necessity of a variance. As in , he cannot now show a hardship merely because the New Cumberland Borough Council could potentially refuse to accept the dedication of the street and because he might not be granted discretionary waivers. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2007, the appeal from a denial of a -5- 07-1194 CIVIL TERM IS DISMISSED. variance, -6- 07-1194 CIVIL TERM By the Court, Edgar B. Bayley, J. Nathan C. Wolf, Esquire For Plaintiff Richard W. Stewart, Esquire For Defendant :sal -7- STEVEN CLARKE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : ZONING HEARING BOARD OF : NEW CUMBERLAND BOROUGH, : CUMBERLAND COUNTY : 07-1194 CIVIL TERM IN RE: APPEAL FROM DENIAL OF A VARIANCE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this day of May, 2007, the appeal from a denial of a IS DISMISSED. variance, By the Court, Edgar B. Bayley, J. Nathan C. Wolf, Esquire For Plaintiff Richard W. Stewart, Esquire For Defendant :sal