Posted by: Patricia Salkin | May 1, 2018

PA Appeals Court Reverses Finding that Incurring Expense due to Reliance on Zoning Officer’s Advice Constituted a Hardship for Purpose of Variance Request

This post was authored by Matthew Loeser, Esq.

Applicant Thomas W. Schelling owned property located at 330 Baumgardner Road in the Pequea Township. The property was located in the Agricultural District and contained a principal residence and a garage, which was an accessory structure. In March 2016, Applicant began construction on a second floor addition over the detached garage for the purpose of accommodating overnight guests. In 2016, Applicant received a Notice of Violation for enlarging and altering an existing structure without a building permit. The Zoning Hearing Board of Pequea Township granted a variance to Schelling from the maximum height restriction applicable to accessory structures, allowing Applicant to construct the second floor addition. In this case, Pequea Township appealed from the order of the Court of Common Pleas of Lancaster Count, affirming the decision of the Board.

At the outset, the court noted it was unclear whether the presence of other structures in excess of 28 feet sufficiently established that the variance Applicant sought was de minimis. Here, the Board’s findings were insufficient with respect to the other structures that it referenced in support of its decision, and in regard to the inconsistent height limitations and the proximity of Applicant’s garage to his principal house. Accordingly, the matter was remanded to the Board for specific findings.

The Board found that Applicant established the requisite hardship because he could not conform to the Zoning Ordinance without undue financial hardship. In reaching this decision, the Board noted that Applicant reasonably relied on the Zoning Officer’s advice that a permit was not needed and incurred expense in proceeding with the project before receiving the Notice of Violation. The court found that while it accepted that the Board credited Applicant’s testimony that he relied on the Zoning Officer’s advice and incurred expense in doing so, neither the MPC nor case law provided that such reliance constituted an unnecessary hardship. Accordingly, the court found that the Board’s determination of financial hardship was not based on substantial evidence in the record. The trial court’s affirming of the Board’s order on the basis that Applicant met the requirements for a dimensional variance, was therefore reversed.

Pequea Township v Zoning Hearing Board of Pequea, 2018 WL 1514221 (PA Cmwlth 1/8/2018)

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