Posted by: Patricia Salkin | October 4, 2015

PA Commonwealth Court Holds Evidence Supported Finding that Applicant was Entitled to a Dimensional Variance for Horse Farm Due to Unnecessary Hardship

Kathryn Mills and her husband, Luke Dellmyer, sought to operate a horse farm and riding business on the subject property, which was a permitted use in an RA zoning district. The subject property is bordered entirely by a 40–foot tree line, another tree line essentially bisects the subject property, and is encumbered by an extensive utility easement. In this zoning appeal, David Tidd (Objector) challenged whether the Lower Saucon Township Zoning Hearing Board erred in granting Green Gables Investment Partners, LP’s (Applicant) request for a dimensional variance from the Lower Saucon Township Zoning Ordinance’s requirement that all areas used to corral or pasture horses be at least 100 feet from all lot lines.

Objector first argued that, although Applicant asserted the trees on the subject property constitute a unique physical characteristic causing hardship, Applicant did not show, how the trees were in any way unique to the subject property. The court noted that in establishing hardship, an applicant for a variance is not required to show that the property at issue is valueless without the variance or that the property cannot be used for any permitted purpose. Here, there was an approximately forty-foot tree line around the entire border of the subject property and another tree line that passed through the middle of it. Dellmyer indicated that the tree line acted as a physical hardship to the subject property because it significantly limited the usable area barring the financial and environmental detriment of significant tree removal. Thus, placing the combined pasture and perimeter fence at the 100–foot setback would create approximately 6.5 acres of unusable land. Dellmyer’s testimony was not challenged or contested before the ZHB, and as a result the court found that the determination that Applicant had demonstrated an unnecessary hardship to warrant granting the variance request from the 100–foot setback was supported by substantial evidence in the record.

Tidd v Lower Saucon Township Zoning Hearing Board, 118 A. 3d 1 (PA Cmwlth 5/29/2015)


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