Dimensional variance; Standard of appellate review

Kneebone v. Zoning Hearing Board of the Township of Plainfield, 238 A. 3d 534 (Pa. Cmwlth. 2020) (unreported),  allocatur granted June 14, 2021, appeal docket 52 MAP 2021

Plainfield Township Zoning Hearing Board (Board) granted homeowners a dimensional variance from the setback requirements applicable to their backyard for the purpose of constructing a covered deck and stairway attached to their dwelling. Board concluded that the dimensions of the lot created a hardship that justifies relief, the proposed 18 foot intrusion into the 50 foot rear-yard setback presents no detrimental effect to the surrounding properties and will not have a detrimental effect on the neighborhood, and the grant of the requested dimensional variance will be the minimum variance to afford relief. Without taking additional evidence, the trial court affirmed. The evidence of hardship was presented by the homeowners’ builder, who testified that  given the physical constraints and the size of the lot, it is not possible to comply with the rear-yard setback and still construct the current deck design, which he said represents the minimum design size possible for the deck to be functional.

The Commonwealth Court acknowledged that “[w]here, as here, we are faced with a dimensional variance as opposed to a use variance, our Supreme Court has articulated a more relaxed standard for granting a variance requiring a lesser quantum of proof” Slip op. at 6. It went on to observe that:

Under this relaxed standard, when addressing the element of unnecessary hardship, “[c]ourts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.” Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998).


Moreover, the court acknowledged that “in zoning matters, ‘determinations as to the credibility of witnesses and the weight to be given to evidence are matters left solely to the [Board] in the performance of its factfinding role.’ Pennsy Supply, Inc. v. Zoning Hearing Bd. of Dorrance Twp., 987 A.2d 1243, 1248 (Pa. Cmwlth. 2009) (internal brackets omitted).”

Nevertheless, on review of the record, the court reversed, reasoning:

After our own review of the record and the evidence presented, we do not agree with the Trial Court’s assessment that substantial evidence supports the Board’s conclusions. Specifically, we do not agree that [the contractor’s] testimony – the only evidence of hardship put forth by [homeowners] – established that the size and configuration of the Property created a hardship requiring the granting of a dimensional variance to allow [homeonwers] to enjoy reasonable use of the Property. At best, [contractor’s] testimony established that [homeowners’] lot was small compared to other lots in the area or lots that would be allowed under current zoning provisions. While [contractor’s] testimony evidences [homeowners’] preference to build a deck of a certain size, it does not represent substantial evidence of a hardship requiring a variance to build to[homeowners’] preferences. Some lots are smaller than others. Owning the smallest lot in a development does not, in itself, create a hardship triggering an automatic right of a landowner to a variance to encroach upon setbacks established by local zoning. Coupling a small lot with an owner’s preference for a deck larger than what local zoning permits does not transform a small lot into one burdened by a hardship. Likewise, [contractor’s] testimony that the new deck design represented the minimum design size possible for the deck to be functional, or that the requested variance represented the minimum variance to afford [homeowners] relief with the least possible modification of the existing setback requirement, does not convert [homeowners’] preference into a hardship or substantial evidence thereof. … Accordingly, we find the Board erred in granting the Variance Application, and the Trial Court in turn erred in affirming the Board.

Slip op. at 11-12.

The Supreme Court granted allocatur to decide:

Did the [Commonwealth] Court Panel abuse its discretion by using an incorrect standard of appellate review and substitute its judgment for that of the Trial Court and Zoning Hearing Board in reversing the Zoning Hearing Board’s grant of a dimensional variance.

For more information, contact Kevin McKeon or Dennis Whitaker.