Posted by: Patricia Salkin | September 3, 2016

PA Appeals Court Reverses Denial of Variances to Build an Access Driveway along an Easement Leading Property

Appellant Mariano Tancredi was the owner since 2003 of a 12.93-acre property located in the Resource Conservation Zoning District of Lower Milford Township, Lehigh County. The property was wooded and undeveloped and without access to a public road except by way of an easement over the property of Appellant’s neighbor. The easement was approximately 400-feet long and fifteen-feet wide and was conferred by Appellant’s neighbor’s predecessor-in-title. The easement was bounded on one side by the property line between the owner of the easement and an adjoining property owner. In other words, the easement ran parallel to the property line of the lot on which the easement was located and extended from the public road to the back end of the Property. The Property Owner submitted an application to build an access driveway along an easement leading to his property. In this case, Tancredi appealed from an order of the Court of Common Pleas of Lehigh County that affirmed an order of the Lower Milford Township Zoning Hearing Board (ZHB) denying his application for variances from certain requirements of the Lower Milford Township Zoning Ordinance of 2009.

Appellant argued that the trial court erred in concluding that, in order to build the sought-after access driveway, he was required to obtain a variance from Article X, Section 1004 of the Ordinance limiting woodland disturbance and requiring replacement of vegetation. Specifically, Appellant contended that, given the size of the easement, the area from which the trees were to be removed did not constitute “woodlands” as defined in the Ordinance and, therefore, the removal of the trees did not constitute “clear-cutting” as defined in the Ordinance. However, as Appellant did not raise this issue before the ZHB, the court could not review it.

The court found that by arguing the ZHB decision denying his variance requests amounted to an unjust taking of his property, Appellant was essentially arguing that he was entitled to a validity variance. The court noted that a validity variance is based on the theory that an otherwise valid ordinance is confiscatory when applied to a particular tract of land, in that it deprives the owner of any reasonable use of his property. Moreover, the issuance of a validity variance is required to allow a reasonable use of the applicant’s land, thus preventing an unconstitutional taking of his property. Here, the court held that since the easement to build a driveway was the minimum variance needed to allow use of the property, Appellant was entitled to a validity variance. Accordingly, the trial court’s holding was reversed.

Tancredi v. Zoning Hearing Board of Lower Milford Township, 2016 WL 4699433 (P.A. Commonwealth 9/8/2016)


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