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HomeMy WebLinkAbout2008-6173 Civil TONY PATACCONI, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LAND USE APPEAL THE BOROUGH OF : NEW CUMBERLAND ZONING : HEARING BOARD, : Appellee : NO. 08-6173 CIVIL IN RE: APPEAL OF DECISION OF NEW CUMBERLAND ZONING HEARING BOARD BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT th AND NOW , this 9 day of March, 2009, upon review of the Land Use Appeal of Tony Patacconi from a decision of the New Cumberland Zoning Hearing Board, and after consideration of the briefs filed by the parties and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellants Tony DISMISSED Patacconi is and that the decision of the New Cumberland Zoning Hearing Board AFFIRMED. is By the Court, __________________________ M. L. Ebert, Jr. J. Barbara Sumple-Sullivan, Esquire Attorney for Appellant 549 Bridge Street New Cumberland, PA 17070-1931 Johnson, Duffie, Stewart & Weidner Attorneys for Appellee 301 Market Street Lemoyne, PA 17043-0109 2 TONY PATACCONI, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LAND USE APPEAL THE BOROUGH OF : NEW CUMBERLAND ZONING : HEARING BOARD, : Appellee : NO. 08-6173 CIVIL IN RE: APPEAL OF DECISION OF NEW CUMBERLAND ZONING HEARING BOARD BEFORE BAYLEY, J. AND EBERT, J. OPINION and ORDER OF COURT Ebert, J., March 9, 2009 - PROCEDURAL HISTORY On July 22, 2008, Tony Patacconi (“Appellant”) filed a request for variance from the New Cumberland Zoning Ordinance, Section 202.2, front setback provision prohibiting construction of a building within 25 feet of any property line after a building permit for the same project was denied. After a hearing on September 16, 2008, the Borough of New Cumberland Zoning Hearing Board (“NCZHB”) denied Appellant’s request for variance and issued its written decision. Appellant filed his appeal on October 16, 2008. STATEMENT OF FACTS Tony Patacconi (Appellant) resides at 109 Rosemont Avenue, New Cumberland, Pennsylvania. Appellant applied for a variance to allow him to construct a covered porch 17 feet, 9 inches from the right-of-way line (approximately a 29% variation) after a building permit for the project was denied. Appellant received permission from the NCZHB for the porch floor itself but did not receive approval to construct a roof over the porch floor. 3 DISCUSSION I. Scope of Review Where the Court of Common Pleas does not conduct a hearing or receive additional evidence that was not before the zoning hearing board, the applicable standard of review of the zoning hearing board's determination is whether the zoning hearing board committed a manifest abuse of discretion or an error of law in granting or denying the variance. An abuse of discretion will be found only where the zoning hearing board's findings are not supported by substantial evidence. Larsen v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 288-89 (Pa.Commw.Ct. 1996); Sweeney v. Zoning Hearing Board of Lower Merion Township., 626 A.2d 1147, 1150 (Pa.Commw.Ct. 1993); Valley View Civic Assoc. v. Zoning Board of Adjustment, 462 A.2d 637, 639 (Pa.Commw.Ct. 1983). II. Legal Analysis of the NCZB Decision A. Criteria for Granting Variance In general, variances are granted only under exceptional circumstances, and an applicant must satisfy all the criteria necessary for the grant of a variance. Pektor v. Zoning Hearing Board of Williams Township, 671 A.2d 295, 298 (Pa. Commw. Ct. 1996). Under 53 P.S. § 10910.2, an applicant must show the following in order to qualify for a variance from the zoning board: (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. (2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the 4 provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property. (3) That such unnecessary hardship has not been created by the appellant. (4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare. (5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. 53 P.S. § 10910.2, Borough of New Cumberland Zoning Ordinance § 704.1, para. 5-9. The NCZHB considered all the possible criteria for granting a variance and determined 1 that Appellant did not meet the conditions for a variance. Appellant admitted that there was no hardship, and did not attempt to argue that he could not make reasonable use of the property without a variance. His desire to improve his property value is simply not enough to warrant the granting of a variance. Without evidence of a hardship or inability to make reasonable use of the property, Appellant is not entitled to a variance. B. Application of the De Minimis Doctrine Appellant argues that his request for variance should be granted based on the de minimis doctrine. Normally, a landowner seeking a variance must demonstrate unnecessary hardship. The de minimis variance doctrine is a narrow exception to the heavy burden of proof involved in seeking a variance. The doctrine applies only where: (1) a minor deviation from the dimensional uses of a zoning ordinance is sought, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. Constantino v. Zoning 1 Notes of Transcript, Zoning Hearing Board of New Cumberland Borough, Sept. 16, 2008, p. 10, (hereinafter “N.T. ___”). 5 Hearing Board of the Borough of Forest Hills, 618 A.2d 1193, 1196 (Pa.Commw.Ct. 1992); Township of Middletown v. Zoning Hearing Board of Middletown Township, 682 A.2d 900, 901- 902 (Pa.Commw.Ct.1996). The determination of whether or not the de minimis doctrine applies requires consideration of both factors. Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 162 (Pa. Commw.Ct.1997). 1. Minor Deviation Sought While there is no precise formula for determining de minimis deviations, the Pennsylvania Commonwealth Court has ruled that even small deviations are not de minimis when there are no other significant factors. In Swemley, the Pennsylvania Commonwealth Court upheld the zoning board’s decision that a 34% variation is not de minimis as a matter of law. Swemley, 698 A.2d at 162. In Andreucci v. Zoning Hearing Bd. of Lower Milford Township, 522 A.2d 107, 110 (Pa.Commw.Ct 1987), the court held that an 8% deviation was not de minimis as a matter of law. Similarly, in Leonard v. Zoning Hearing Bd. of the City of Bethlehem, 583 A.2d 11 (Pa.Commw.Ct. 1990), the court held a 6.25% deviation not to be de minimis as a matter of law absent unique circumstances. Swemley, 698 A.2d at 162. In the present case, Appellant requests a variance of approximately a 29% deviation from the ordinance. Given the Commonwealth Court’s consistent interpretation of the de minimis doctrine as a narrow exception, we find that Appellant’s request in this case is too much of a variance from the ordinance to constitute a minor deviation. 2. Rigid Compliance With Zoning Ordinance The second consideration for a de minimis exception is whether strict compliance with the ordinance is necessary to protect public policy concerns. “[T]he decision of whether to grant a de minimis variance is left to the discretion of the local zoning board.” Alpine, Inc. v. Abington 6 Township Zoning Hearing Bd., 654 A.2d 186, 191 (Pa.Commw.Ct.1995). In this case, the 2 NCZHB has adopted a strict interpretation of the criteria for granting variances. Understandably, the Board does not want to set a precedent for granting a variance in the absence of the required criteria. The NCZHB respects the Borough’s authority by consistently enforcing the ordinance as the Borough intended. The NCZHB has evaluated the public policy concerns associated with granting a variance in this instance, and its decision was properly based on strict adherence to the zoning ordinance. C. Other Homes with Structures in Violation of the 25-foot Setback Ordinance Appellant argues that the decision of the NCZHB denying the variance was arbitrary and capricious because there are other homes in the neighborhood with structures in violation of the 25-foot setback requirement, and that denying him the right to build a similar structure is discriminatory. Chairman Gentzel of the NCZHB stated that the structures currently in violation were not built pursuant to the grant of a variance by the board. One member of the zoning hearing board, who indicated that he had served for 20 years, stated that he was not aware of any variances for roof porches being granted in the Appellant’s neighborhood. Apparently there was one home at 103 Rosemont Avenue, New Cumberland, which had constructed a porch within the last 2 or 3 years. However, it was recognized at the hearing that this situation was one which 3 “fell through the cracks,” implying that the NCZHB was not called upon to rule in the matter. Furthermore, the Commonwealth Court has consistently held that other ordinance violations in the same neighborhood have no bearing on whether to grant a variance. Swemley, 698 A.2d 160; Leonard, 583 A.2d 11. In Swemley, the Court rejected a landowner’s argument that, despite the 34% deviation, she was entitled to a de minimis variance because any 2 N.T. 14. 3 N.T. 12. 7 interference with the Township's policies has already been accomplished through her neighbor's similar violation. Swemley, 698 A.2d at 163. In Leonard, which involved only a 6.25% deviation, the Court noted that the presence of other lots in the neighborhood with similar deviations did not establish entitlement to a de minimis variance. Leonard, 583 A.2d at 13. Futhermore, the Commonwealth Court has stated that it is appropriate for a zoning board to deny an application for variance based on “the cumulative effect of an additional [violation] . . . on conditions in the neighborhood . . . .” Swemley, 698 A.2d at 163 (citing Alpine, Inc. v. Abington Township Zoning Hearing Bd., 654 A.2d 186, 191 (Pa.Commw.Ct.1995)). The fact that other houses on Appellant’s street or in Appellant’s neighborhood are in violation of the setback ordinance is not a justification for approving his application. The NCZHB properly denied Appellant’s application based on evaluation of the effect that an approval would have on future requests for variances. They did not want to set a precedent for disregarding the variance in cases like Appellant’s where there is no basis for approval based on the requirements set forth in the ordinance. This is an appropriate decision made by the NCZHB and we see no basis for Appellant’s argument that the decision was arbitrary or discriminatory. D. Zoning Board’s Decision Properly Based in Law Appellant also argues that the NCZHB’s decision to allow the porch floor pad, which encroaches on the 25-foot setback, while denying the right to cover the porch with columns and a roof, has no reasonable basis in law or fact. However, Appellant’s porch floor pad does not meet the definition of a “building” under the ordinance, and is therefore not subject to the 25-foot setback restriction. A “building” is defined under the ordinance as “any enclosed or open structure other than a boundary or fence, occupying more than four square feet of area, having a roof supported by columns or walls and intended for the shelter, housing or enclosure of persons, 8 4 animals, or chattels, and including covered porches or bay windows and chimneys. The NCZHB properly evaluated the meaning of the ordinance and determined that the porch floor pad itself, uncovered, is not prohibited because it is not a building as defined by the ordinance, and the setback restriction in the ordinance only applies to buildings. CONCLUSION Having reviewed the NCZHB testimony and considering briefs from both parties, this Court finds that the New Cumberland Zoning Hearing Board considered all criteria in evaluating Appellant’s request for variance and properly found that Appellant did not meet the necessary conditions for a variance. The NCZHB did not abuse its discretion, nor did it make a decision that was arbitrary and capricious when it denied Appellant’s request for variance. The Appellant’s appeal of the NCZHB decision will be dismissed. Accordingly, the following order will be entered: ORDER OF COURT th AND NOW , this 9 day of March, 2009, upon review of the Land Use Appeal of Tony Patacconi from a decision of the New Cumberland Zoning Hearing Board, and after consideration of the briefs filed by the parties and oral argument; IT IS HEREBY ORDERED AND DIRECTED that the appeal of Appellant Tony DISMISSED Patacconi is and that the decision of the New Cumberland Zoning Hearing Board AFFIRMED. is By the Court, __________________________ M. L. Ebert, Jr. J. 4 New Cumberland Zoning Ordinance, Section 103.6, emphasis added. 9 Barbara Sumple-Sullivan, Esquire Attorney for Appellant 549 Bridge Street New Cumberland, PA 17070-1931 Johnson, Duffie, Stewart & Weidner Attorneys for Appellee 301 Market Street Lemoyne, PA 17043-0109 10