This post was authored by Rachel Lenberger, Touro University Jacob D. Fuchsberg Law Center
In this case, McLogie Properties Inc. (the “Petitioner”) appeals an order of the Court of Common Pleas of Carbon County (trial court) that affirmed a May 2021 decision of the Kidder Township (the “Kidder”) Zoning Hearing Board (the “ZHB”) denying Petitioner’s request for variance relief.
In June 2019, the Petitioner filed an initial zoning permit application with Kidder to build a three-story single-family residence on an unimproved lot in the R2 Residential zoning district. The Kidder Zoning and Building/Code Enforcement Officer (“Dobosh”) worked with Petitioner during the preliminary inspections for the property. Thereafter, Dobosh retired, and Kidder split the roles of Zoning and Building Officer and Code Enforcement Officer into two positions, where the role of Code Enforcement Officer was outsourced. Kidder’s new Zoning Officer, Cindy Norato (“Norato”) was responsible for zoning compliance and issued the zoning permit necessary for the three-story house and deck. After the zoning permit was in place the Code Enforcement Officer, Dave Williams (“Williams”), who was responsible for reviewing plans to confirm they are in accordance with the Pennsylvania Construction Code Act issued the building permit allowing Petitioner to commence construction under the approved plans.
During construction, the Petitioner discovered that the foundation’s front elevation was eleven feet lower than what was approved in the original plan. The Petitioner stopped construction and notified Code Enforcement Officer Williams who advised the Petitioner to submit a revised plan. Petitioner submitted a revised plan to Code Enforcement Officer Willians showing a basement additional with a ceiling height of eight and one-half feet. Code Enforcement Officer Williams approved the plan but did not confer with Zoning Officer Norato, so Norato never approved the plan for zoning compliance. Nor did Code Enforcement Officer Williams revoke the building permit.
Kidder inspected the property multiple times while the home was being built. The construction was completed in accordance with the plans approved by Code Enforcement Officer Williams, and in July 2020, Kidder issued the Petitioner a certificate of occupancy. In September 2020, Zoning Officer Norato became aware that the plans had been revised, and in October 2020, Zoning Officer Norato issued an enforcement notice to the Petitioner citing a provision of the zoning code that limits the maximum height of all buildings on lots zoned R2 residential zone, to no more than 35 feet and three stories. Here, the basement addition increased both the height limit and the maximum number of stories allowed under the zoning ordinance.
Petitioner appealed Zoning Officer Norato’s enforcement notice to the Kidder ZHB, requesting dimensional variances since construction was complete. At the hearing, Code Enforcement Officer Williams confirmed that he only reviewed the plans for conformity with the Pennsylvania Construction Code Act and was not authorized to compel compliance with the zoning code. Petitioner’s representatives testified that they were unaware the Williams had no authority to sign off on zoning because Dobosh previously served in both roles, and that they purposely went to Williams for guidance when they realized there was an issue during construction to obtain guidance and approval(s). Petitioner’s representatives further testified that the cost to bring the structure in compliance with the zoning code would cost more than $50,000.
The Kidder ZHB denied Petitioner’s appeal on the grounds that the evidence concerning Williams’ approval of the revised plan was not credible or probative. The Kidder ZHB determined that Petitioner failed to satisfy the standard to obtain a dimensional variance, was not entitled to a variance by estoppel or a vested right variance, and that Petitioner had waived her right to obtain relief via equitable estoppel.
Petitioner appealed the Kidder ZHB’s decision to the trial court, asserting the right to a variance by estoppel or, in the alternative, that under the circumstances, Kidder was equitably estopped from enforcing the height and story restrictions contained in the zoning ordinance. Based upon the record before the Kidder ZBA, the trial court denied Petitioner’s appeal, and determined that while Petitioner properly preserved her equitable estoppel claim, substantial evidence contained in the record supported the Kidder ZBA’s denial and its refusal to grant a variance by estoppel.
On appeal, the Pennsylvania Commonwealth Court (appellate court) held that in order to be granted a variance by estoppel, the following elements must be shown: (1) the municipality’s failure to enforce the zoning ordinance for a long period, when the municipality knew or should have known of the violation but acquiesced in the illegal use; (2) good faith and innocent reliance by the landowner on the validity of the use throughout the proceedings; (3) substantial expenditures by the landowner in reliance on the belief that the use was permitted; and (4) unnecessary hardship from denial of the variance, such as the cost to demolish an existing building.
In this instance, the appellate court found that the Petitioner was entitled to a variance by estoppel because for a period of one year, Kidder failed to enforce the height and story restrictions contained in the zoning ordinance for the R2 Residential zone. Moreover, the Petitioner was entitled to assume that Kidder had performed its duties in reviewing the plan to ensure the plan was zoning compliant as approved. Further, the Petitioner had already incurred construction expenses to construct the basement, and if Kidder required the Petitioner to fill in the basement to make it zoning code compliant, the Petitioner would incur an additional expense of about $50,000.
Therefore, the appellate court reversed the trial court’s order and granted the Petitioner a variance by estoppel. The appellate court further ruled that the Kidder ZBH is estopped from enforcing the zoning ordinance.
McLogie Properties, Inc. v. Kidder Township Zoning Hearing Board, 2023 WL 4276962 (PA Cmwlth 6/30/2023)
LAW OF THE LAND 
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