Facts: Valley Acres submitted a development plan in 1996 which proposed residential and agricultural development of a 98-acre tract (1996 Plan) to the Hellam Township (Township) zoning officer, which was rejected by the zoning officer due to the Township’s imposition of a one-year moratorium on residential and agricultural development (Moratorium).

 

The Pennsylvania Supreme Court in Naylor v. Township of Hellam, 565 Pa. 397, 773 A.2d 770 (2001), invalidated the Moratorium and ordered the Township to review “applications according to the zoning and subdivision ordinances in effect at the time they were filed.” Thereafter, Valley Acres submitted a development plan in 2001 (2001 Plan) to the Township. In 2003, Patton Homes (Patton) purchased the property at issue from Valley Acres. Since its submission, the Township reviewed the 2001 Plan under the Township’s 1996 Ordinance (1996 Ordinance).

 

In May of 2005, the Township zoning officer issued a letter stating that the 1996 Ordinance, under which Patton had been pursuing development, was inapplicable and concluded that the Township Ordinance in effect in 2001 (2001 Ordinance) applied when the 2001 Plan was submitted. Patton appealed to the Zoning Hearing Board challenging the zoning officer’s determination.

 

The Board conducted a hearing at which point Patton presented the testimony of its engineer, Mr. George, who introduced a letter from the zoning officer who was in office in 2001, which indicated that the 2001 Plan should be considered under the 1996 Ordinance.

 

Based on the evidence presented, the Board found that the 2001 Plan was similar to or substantially the same as the 1996 Plan, such that the 1996 Ordinance governed the 2001 Plan. The Board also found it credible that all officials involved, including the zoning officer and Board of Supervisors, authorized Patton to proceed with the 2001 Plan in accordance with the 1996 Ordinance. The Board also determined that Patton did not mislead the Township as to the 2001 Plan. The Township treated the 2001 Plan as being the same as the 1996 Plan, thereby acknowledging that it was the appropriate plan and that Patton thereby had a vested right. The Township appealed the Board’s decision to the Commonwealth Court.

 

Commonwealth Court Holding: The Court first ruled that the Board was correct in finding that the 2001 Plan was the same as the 1996 Plan insofar as the Board relied on the testimony of Mr. George who introduced the letter from the former township engineer indicating that the Township, through its zoning officer, agreed that the 2001 Plan should be considered under the 1996 Ordinance.

 

The Court rejected the Township’s argument that the Board erred in concluding that Patton had a vested right to have the 2001 Plan reviewed under the 1996 Ordinance, stating that Patton never acted in bad faith or misled the Township. To the contrary, the Court pointed out that the Township apparently had made a determination that the 2001 Plan was the same as the 1996 Plan and such was acknowledged by the then-zoning officer who treated the 2001 Plan according to the 1996 Ordinance.

 

 

Facts: The Febbraros wanted to construct a 160-foot long, pre-cast concrete, “jumbo block” wall on their property to level their backyard and prevent the possibility of a landslide on neighboring property. Prior to beginning construction, the Febbraros contacted the Township’s Zoning Officer, Robert Vita (Vita), several times to request information on what, if anything, they needed to obtain from the Township before constructing the wall. Vita and the Township Engineer inspected the Febbraros’ property and the plans for the wall, and, on several occasions thereafter, Vita informed the Febbraros that because the proposed wall was a retaining wall, it was allowed to be constructed up to the edge of their property without any permits.

 

The Febbraros began construction on their retaining wall and soon after construction began, the Febbraros’ neighbors, the Vaughns, whose property abutted the Febbraros’ property and lower in elevation than the Febbraros property, complained to the Township about the wall. As a result, the Township Manager Rogers (Rogers) sent a stop work order to the Febbraros. Although by that time construction on the wall was completed except for a cap and fence, the Febbraros agreed to stop all work on the wall until they spoke with Vita. Thereafter, Vita informed Rogers that no permit was required for the wall.

 

The Febbraros then filed with the ZHB an application requesting a variance from the Ordinance’s setback and permit requirements so that they could keep their completed retaining wall. After a hearing was held, the ZHB found that: (1) there was no evidence indicating there was a depreciation of the value of properties generally in the Township due to the construction of the wall; (2) the wall, as constructed, did not constitute a danger to public health, safety or morals; (3) prior to construction of the wall, the Febbraros diligently inquired of the appropriate Township officials as to whether or not they were required to obtain a permit for the construction of the wall; (4) the Febbraros acted in good faith and with clean hands throughout the process; and (5) the Febbraros complied with the requirements related to the construction of the wall that were indicated to them by the appropriate Township officials. Because the Febbraros had expended a substantial amount of money in reliance on Vita’s representations, the ZHB concluded that unless the Febbraros were granted a variance, they would experience unnecessary hardship and would incur a substantial monetary expenditure to remove the wall based on the doctrine of variance by estoppel. Accordingly, the ZHB issued an order allowing the Febbraros to keep the retaining wall.

 

The Vaughns then appealed to the trial court, which reversed the ZHB, concluding that the ZHB did not have the authority to grant a variance by estoppel. The Township appealed the trial court’s decision to the Commonwealth Court asking the Court to address whether the ZHB had jurisdiction to grant a variance by estoppel and if so, whether the ZHB’s grant of such relief to the Febbraros was proper.

 

Commonwealth Court Holding: The Commonwealth Court reversed the trial court, holding that the theory of variance by estoppel was a well-established doctrine and had been relied upon by zoning hearing boards and courts alike to permit landowners to continue to use their property in violation of a zoning ordinance, where to not do so would create an unnecessary hardship by virtue of the landowners’ detrimental reliance on the actions of municipal officials.

 

The Court also reversed the trial court, holding that the ZHB properly allowed the Febbraros to keep their retaining wall under the theory of variance by estoppel. The Court found that the Febbraros clearly established: (1) they relied on Vita’s repeated representations that they could build their retaining wall up to the edge of their property line without obtaining any permits; (2) based on that reliance, they made substantial expenditures by building the retaining wall; (3) they innocently believed, pursuant to Vita’s representations, that their retaining wall was a permitted used and they could build it; and (4) the enforcement of the Ordinance would require them to remove the wall and expend an additional $20,000.

 

 

Facts: The property at issue was a 1.40 gross acre triangular shaped, parcel (Property) and the Property was 100% forested and a stream ran through the Property. Portions of the Property, totaling .42 acres, were classified as either riparian buffer or a 100-year floodplain. The Property was zoned Light Industrial (LI), and the Plumstead Zoning Ordinance (Ordinance) allowed contractor use in the LI District. The front of the Property was bordered by a roadway, Potters Lane. Resident Hunter lived across Potters Lane from the Property.

 

Section 27-2401 of the Ordinance provided for “Natural Resource Protection” and several subsections of Section 27-2401 precluded development in either a riparian buffer or floodplain and required 60% of forested land in an LI District to be preserved.

 

The owner of the Property, Pisani Builders Associates, Inc. (Pisani) purchased the Property with the intent of building an office. Pisani filed an application with the Board (Application) requesting three variances: (1) a dimensional variance from the rear yard setback of 50 feet required by Section 27-1703 of the Ordinance; (2) a dimensional variance from a minimum lot requirement of 2 acres; and (3) a variance relating to natural resource requirements that required 60% of forested area to be preserved. The Board granted each of the requested variances, concluding that a variance from the forest preservation requirement Section 27-2401(9) was dimensional in nature because it required a notification of a set number (i.e., at least 60% of the Property must remain forested), as opposed to a modification of an outright prohibition of deforestation. The dimensional variance the Board issued allowed for less than 60% of the Property to remain forested.

 

Hunter appealed to the trial court, which affirmed the Board. Hunter and the Township each filed with the Commonwealth Court an appeal of the variance relating to the forest preservation requirement, addressing whether a variance from a forest preservation requirement should be considered a use variance or a dimensional variance and whether the requirements for the appropriate type of variance had been satisfied.

 

Commonwealth Court Holding: The Court reversed the trial court, concluding that the protections of Section 27-2401 of the Ordinance were of a different character than the protections which usually require a dimensional variance. In its reasoning, the Court first looked to the plain language of the Ordinance itself—“Natural Resource Protection”—which clearly and unequivocally conveyed that the Ordinance was created to preserve environmental resources. The Court also looked to the wide category of environmental resources protected and the applicability of the Ordinance to all zoning uses—streams, floodplains, riparian buffers, wetlands and forests. Lastly, the Court pointed to the fact that Township in the past had interpreted the Ordinance as necessitating a use variance. Based on the foregoing, the Court concluded that any departure from the Section 27-2401(9) requirements must be made by means of a use variance. Accordingly, the Court vacated the trial court’s order and remanded the matter to the Board to evaluate the arguments and evidence presented under the use variance standard.

Facts: This matter related to property known as Lot 13, Valley View Road, Delaware County, Pennsylvania (Lot 13). Gailyn Thomas sold Lot 13 to Stone River Builders, Inc. in 2005. A deed dated January 26, 2006, identifying Stone River Builders as the owner of Lot 13, was recorded in the Office of Recorder of Deeds of Delaware County. Rose Valley Borough’s (Borough) Zoning Officer issued a building permit to Stone River Builders for the construction of a single-family dwelling on Lot 13. That same day, certain neighbors of Lot 13 (Neighbors) appealed the issuance of the building permit to the Zoning Hearing Board. Stone River Builders then applied for a special exception for the construction of the single-family dwelling on Lot 13.

 

Both the application for special exception and the appeal from the decision granting the building permit were considered by the ZHB. The ZHB issued a decision which consisted of findings of fact, a discussion/conclusion and two orders—the first order approved the application of Stone River Builders for special exception and the second order denied the appeal of the Neighbors from the issuance of the building permit by virtue of the Board’s grant of the special exception. The Neighbors appealed the ZHB’s decision to the trial court. Stone River Builders filed a notice of intervention and also filed a petition to quash Neighbors’ notice of appeal. The Neighbors then filed a petition to strike the notice of intervention on the basis that Stone River Builders lacked standing.

 

The trial court denied Neighbors’ petition to strike the intervention and granted Stone River Builders’ petition to quash Neighbors’ appeal on the basis that the notice of appeal was insufficient. Neighbors then appealed the trial court’s order to the Commonwealth Court making the following arguments: (1) the trial court erred in denying the Neighbors’ petition to strike the notice of intervention of Stone River Builders because Stone River Builders was neither a landowner nor a tenant of Lot 13; and (2) the trial court erred in quashing their notice of appeal when it sufficiently complied with Section 1003-A of the MPC.

 

Commonwealth Court Holding: The Court affirmed the trial court’s order granting the Stone River Builders’ petition to intervene, concluding that the Stone River Builders could intervene pursuant to Section 1004-A of the MPC because it was the record owner of Lot 13. The Court also affirmed the trial court’s decision to quash the Neighbors’ appeal insofar as there was no attempt made by the Neighbors to identify any issues on appeal in their notice in accordance with Section 1003-A of the MPC.

 

 

Facts: Begies owned three contiguous parcels in an R-3 Medium Density Residential Zoning District: (1) one parcel owned by Begies and her husband as tenants by the entireties (Entireties Parcel); (2) one parcel contained a single family home and was titled in the name of “Anita M. Begies Trust” (Trust Parcel); and (3) one parcel was a triangular lot and was owned by Begies and her husband as tenants by the entireties (Triangular Parcel). A single family detached dwelling was permitted by right in the R-3 District, but required a minimum lot size of one acre and a minimum width of 135 feet.

 

The Entireties Parcel did not conform to the R-3 District requirements because it contained approximately .41 acres and had a lot width of 62.62 feet. Seeking to construct a single-family detached dwelling on the Entireties Parcel, Begies filed a zoning appeal application with the ZHB requesting an interpretation as to whether her parcel was a non-conforming lot under the Upper Nazareth Zoning Ordinance (Ordinance). A hearing on the application was held before the ZHB, wherein Begies introduced a recorded deed confirming that the Entireties Parcel was a non-conforming lot held in single and separate ownership and was recorded prior to the effective date of the Ordinance. The ZHB reviewed Begies’ prior representation to the ZHB in April 2004, in the context of an application for a variance, that she was the owner of three contiguous parcels, which she used as her residence, yard and driveway. Based upon this representation along with Begies’ actual usage of the lots, the ZHB determined that the Entireties Parcel and the Trust Parcel had merged, such that the Entireties Parcel was not a “non-conforming lot” as defined by the Ordinance. From this decision, Begies filed an appeal with the trial court, which affirmed. Begies appealed the trial court’s decision to the Commonwealth Court asking whether the ZHB abused its discretion and committed an error of law by merging two lots held in single and separate ownership.

 

Commonwealth Court Holding: The Commonwealth Court reversed the trial court, holding that the Board never met its burden of establishing Begies’ intent to integrate the adjoining lots into one parcel. To the contrary, the Court pointed out that because the Entireties Parcel and the Trust Parcel/Triangular Parcel had been kept under separate ownership it was clear that Begies intended to keep the parcels legally separate. The Court also pointed to the fact that the Entireties Parcel did not share a contiguous frontage with the other parcels as further proof the Entireties Parcel could not be legally merged with the Trust Parcel/Triangular Parcel.

 

 

Sombers v. Stroud Township Zoning Hearing Board, 913 A.2d 306 (Pa. Cmwlth. 2007): Zoning ordinance required a minimum buffer of 100 feet from a pond located within a watershed of a high quality stream. Commonwealth Court held that Sombers was entitled to a dimensional variance from this zoning ordinance in order to build a residence on land which had a pond located near the center of the tract. Both parties filed Petitions for Re-argument in this case, which were denied by the Commonwealth Court on January 18, 2007. Stroud Township Zoning Hearing Board filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on October 23, 2007.

 

Greth Development Group, Inc. v. Zoning Hearing Board of Lower Heidelberg Township, 918 A.2d 181 (Pa. Cmwlth. 2007): Lower Heidelberg Township Zoning Hearing Board (Board) and trial court denied Developer’s application for a special exception on the grounds that Developer failed to show that there would be adequate sewage treatment capacity for its project. To reach this conclusion, the Board allocated existing sewage capacity to another pending project, thereby reducing the remaining capacity below what was needed for Developer’s proposed special exception use. The Commonwealth Court ruled that the Board was not authorized by the MPC to direct the allocation of sewer capacity and exceeded its authority when it directed allocation of sewer capacity between two portions of Developer’s property. The Commonwealth Court reversed the trial court and remanded the matter for consideration of whether the Developer’s application for a special exception satisfied the standards for a special exception set forth in the zoning ordinance. The Board filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on August 21, 2007.