T.M. Dunn and L.N. Dunn v. Middletown Twp. ZHB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and Lori N. Dunn, :
Appellants :
:
v. : No. 1436 C.D. 2015
: Argued: May 13, 2016
Middletown Township Zoning :
Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION
BY JUDGE SIMPSON FILED: July 11, 2016

In this zoning appeal, we examine whether a zoning hearing board can
grant lot width and density variances without any proof of hardship. More
specifically, Theodore M. Dunn and Lori N. Dunn (Objectors) ask whether the
Court of Common Pleas of Bucks County (trial court) erred in affirming a decision
of the Middletown Township Zoning Hearing Board (ZHB) that granted Revonah
Construction Company’s (Applicant) requests for three variances from the
Middletown Township Zoning Ordinance (zoning ordinance). Because the ZHB
erred in granting variance relief based on the facts presented, we reverse.

I. Background
Applicant owns a 79,954 square foot parcel located at 1755 Fulling
Mill Road in Langhorne, Middletown Township (Township), Pennsylvania
(property). The property is improved with a vacant, ranch style, single-family
detached home with an access walkway and driveway. Objectors own an adjacent
property at 1737 Fulling Mill Road. Both properties lie within an RA-2 Residence
Agricultural Zoning District.

Applicant proposes to demolish the vacant home on the property and
subdivide the property into three lots. Lot 1 would be 30,008 square feet and
accommodate a single-family home. Lot 2 would be 30,152 square feet and
accommodate an additional single-family home. Lot 3 would be 19,794 square
feet; Applicant proposes to merge this undeveloped lot with a contiguous property,
which is already improved with a single-family home.

In August 2014, Applicant filed an application with the ZHB seeking
three variances from Section 500-503 of the zoning ordinance. In particular,
Applicant sought two variances from Section 500-503(B) of the zoning ordinance,
which requires a minimum lot width of 125 feet, to allow a lot width of 106.73 feet
on Lot 1 and a lot width of 107.24 feet on Lot 2. Applicant also sought a variance
from Section 500-503(C) of the zoning ordinance to allow a density of 1.45
dwelling units per acre rather than the required maximum 1.2 dwelling units per
acre.

The ZHB held a hearing on Applicant’s variance requests. William
Hess, Applicant’s President (Applicant’s President), testified the homes Applicant
proposes to construct on Lots 1 and 2 would be “high-end” single-family homes
marketed at approximately $630,000. ZHB Dec., 10/13/14, Finding of Fact No. 8.
Applicant’s President testified the house currently located on the property is in
very poor condition.

2
 Heath Dumack, who the ZHB qualified as a civil engineering expert
(Applicant’s Engineer), testified the property is approximately 212 feet wide and
410 feet deep. Applicant’s Engineer testified Lots 1 and 2 would meet all of the
dimensional requirements for the RA-2 zoning district except the minimum lot
width and maximum lot density requirements. Applicant’s Engineer testified there
was no adjoining property for sale that would allow Applicant to meet the
minimum width requirement and the width of the proposed lots would be deficient
by approximately 15 percent. Applicant’s Engineer testified Applicant would
comply with local storm water runoff regulations, and Applicant would plant
vegetation on the sides of the proposed subdivided lots as a buffer between
adjoining properties.

Nine neighbors testified in opposition to Applicant’s variance
requests. These witnesses testified Applicant could make use of the existing home
on the property without any variance relief. They also expressed concern about
storm water runoff. These witnesses also testified the proposed two-story homes
on Lots 1 and 2 would disrupt the character of the neighborhood, which consists of
one-story ranch homes. They also testified the proposed homes would devalue
their properties.

Jim Schurr, a Township resident, testified he is familiar with
Applicant and its President. He testified Applicant’s proposed homes would
enhance the neighborhood. Schurr also testified the existing home on the property
is the least aesthetically attractive house on Fulling Mill Road.

3
 Based on the evidence presented, the ZHB made the following
conclusions of law:

1. The [property] has been developed and used as is permitted
by right in the RA-2 [district].

2. The proposed subdivision creates two building lots that meet
all of the dimensional requirements of the [zoning] [o]rdinance
with the exception of the lot width at building set back line,
which is required to be 125 feet per [zoning] [o]rdinance §500-
503.B.

3. As the law requires that conflicts within [z]oning
[o]rdinances be resolved in favor of the property owner, the
maximum density requirement of 1.2 dwelling units per acre,
contained at §500-503.C, in this instance, would require a
building lot greater in size than the minimum lot area
requirement of 30,000 square feet.

4. Accordingly, the [ZHB] concludes that a variance from
§500-503.C is necessary and warranted.

5. This is not an application for a use variance, rather only one
for a minor deviation from one of the dimensional requirements
of the [zoning] [o]rdinance.

6. Based upon all of the competent and credible evidence
received by the [ZHB], it concludes that the construction of the
two homes proposed will enhance both the [property]
specifically and the neighborhood generally.

7. Any potential stormwater impacts will be mitigated by
compliance with the stormwater management requirements of
[the] Township and other appropriate governmental agencies.

8. There was no evidence presented by the opponents to the
application that the construction of these two homes would
negatively impact property values. Rather, only supposition
and conjecture were offered by the opponents in this regard.

4
 9. The subdivision of the [p]roperty as proposed, and the
creation of two new single-family residences, as proposed, will
have no negative impact upon surrounding properties or uses.

10. Although the opponents made reference to a 1989 [ZHB]
decision which denied a subdivision of the [property] into two
lots, that decision was based upon the creation of a flag lot
which only had a 25 foot width at building set back line. This
application resolves that major variance from the [zoning]
[o]rdinance and satisfies the [ZHB] that [Applicant] is seeking
the minimum variance necessary to afford it relief.

11. Accordingly, the Members of the [ZHB], determined,
unanimously, to grant [Applicant’s] request[s] for relief as is set
forth hereafter:

ZHB Dec., Concls. of Law Nos. 1-11.

Objectors appealed to the trial court. Without taking additional
evidence, the trial court affirmed. This appeal followed.

II. Issues
On appeal,1 Objectors argue the trial court erred in determining the
ZHB did not err or abuse its discretion in granting Applicant three variances to
subdivide the property, raze an existing home on the property and construct two
new homes on the property. They further assert the de minimis variance doctrine,
cited by the trial court, but not relied on by the ZHB, does not justify the ZHB’s
grant of Applicant’s three variance requests.

1
Because the parties presented no additional evidence after the ZHB’s decision, our
review is limited to determining whether the ZHB committed an abuse of discretion or an error
of law. Taliaferro v. Darby Twp. Zoning Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005).

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 III. Discussion
A. Contentions
Objectors first argue the ZHB erred in granting Applicant’s variance
requests where Applicant did not establish unnecessary hardship would result if the
ZHB denied the variances. Reviewing the standards for the grant of a variance,
and applying those standards to the facts presented here, Objectors assert, makes it
patently clear that the ZHB erred in granting the variances. To that end, the
property has been and can continue to be utilized in conformity with the zoning
ordinance, and Applicant did not even attempt to argue any variances were
necessary to enable reasonable use of the property.

Further, Objectors contend Applicant cannot argue economic hardship
exists here. Indeed, Applicant purchased the property intending to subdivide it for
its economic gain. Objectors also maintain that, assuming, without conceding, that
denial the requested relief would cause Applicant economic hardship, it is well-
settled that economic hardship alone is insufficient to justify the grant of a
variance. See, e.g., Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh,
721 A.2d 43 (Pa. 1998). Here, Applicant was aware of the property’s zoning
classification and the existing, conforming use of the property; his desire to
subdivide the property is driven solely by economics. Objectors argue the ZHB
here completely disregarded the provisions of the Pennsylvania Municipalities
Planning Code2 (MPC), Hertzberg and the remaining body of Pennsylvania law
that make it clear that Applicant was in no way entitled to the three variances
sought.

2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101–11202.

6
 Objectors further maintain that Cardamone v. Whitpain Township
Zoning Hearing Board, 771 A.2d 103 (Pa. Cmwlth. 2001), in which a landowner
sought a dimensional variance in connection with his proposal to subdivide a
property into two lots, also compels reversal of the ZHB’s decision.

In addition, Objectors note the ZHB’s Conclusion of Law No. 9
states: “The subdivision of the [property] as proposed, and the creation of two
single-family residences, as proposed, will have no negative impact upon
surrounding properties or uses.” Objectors argue the record does not support this
determination. Rather, the overwhelming weight of the evidence regarding the
proposed development’s impact on surrounding properties and landowners
indicated the proposal would adversely impact the surrounding neighborhood.
Objectors contend the ZHB abused its discretion in reaching a contrary
determination.

Objectors also maintain the ZHB’s Conclusion of Law No. 5 is both
an abuse of discretion and an error of law. It states: “5. This is not an application
for a use variance, rather only one for a minor deviation from one of the
dimensional requirements of the [zoning] [o]rdinance.” On this point, Objectors
assert Leonard v. Zoning Hearing Board of City of Bethlehem, 583 A.2d 11 (Pa.
Cmwlth. 1990) controls. There, this Court declined “to establish … that a
subdivision creating a 6% plus deviation from the ordinance lot size minimum may
be permitted solely on the basis that such deviation is de minimis.” Id. at 13.
Objectors argue Applicant’s requested variances are not minor deviations for
purposes of the de minimis doctrine because they constitute a 15% deviation from

7
the minimum lot width requirement, see Section 500-503(B) of the zoning
ordinance, and a 17% deviation from the maximum density requirement, see
Section 500-503(C) of the zoning ordinance. Objectors contend, for the ZHB to
conclude a 15% to 17% deficiency from a dimensional requirement is a “minor
deviation” disregards settled law and is, therefore, an abuse of discretion.

Objectors maintain Applicant merely seeks to profit on its purchase of
a two-acre property, which is already improved with a single-family home.
Objectors argue Applicant needs to subdivide the property in order to maximize
profit, and unfortunately for Applicant, the property is not wide enough to
accommodate two homes instead of one. Objectors also note a prior owner of the
property unsuccessfully attempted to do precisely what Applicant proposes here,
subdivide the property, and the ZHB correctly rejected that request as the owner
did not prove any hardship that would justify the grant of a lot width variance, the
same type of variance Applicant now seeks.

In addition, Objectors argue the de minimis variance doctrine does not
justify the dimensional variances granted here. They maintain the trial court
conceded the de minimis doctrine is a narrow exception to the heavy burden of
proof involved in seeking a variance. Objectors assert Leonard and other appellate
cases hold the doctrine is to be applied in rare instances where only a minor
deviation from a zoning ordinance is sought. As argued above, Objectors contend,
for the ZHB to conclude a 15% to 17% deficiency from a zoning ordinance’s
minimum dimensional requirement is “minor” where, as here, the ZHB seems
focused on the profit to be made by the developer if it is granted relief from the

8
zoning ordinance’s requirements, is a clear abuse of discretion as well as a
disregard of settled law regarding de minimis variances.

The ZHB3 and Applicant counter that the credited evidence
establishes Applicant’s zoning plan would preserve the essential character of the
RA-2 district and would not be detrimental to the public welfare. They argue the
ZHB credited Applicant’s Engineer’s testimony that Applicant would plant
vegetation buffers around the property and would comply with local storm water
runoff requirements. The ZHB and Applicant point out the ZHB did not credit the
objecting landowners’ testimony that Applicant’s proposed development would
decrease property values or otherwise interfere with surrounding properties. The
ZHB and Applicant argue the ZHB credited Applicant’s Engineer’s testimony that
Applicant’s zoning plan would benefit neighboring properties by allowing them to
connect to water and sewer utilities. They also maintain the ZHB credited Schurr’s
testimony that Applicant’s proposed homes would enhance the aesthetics of the
neighborhood.

The ZHB and Applicant also assert the ZHB properly granted the
variance from the maximum density requirement set forth in Section 500-503(C) of
the zoning ordinance as that requirement would conflict with Applicant’s ability to
comply with the minimum lot area requirement in Section 500-503(A) of the
zoning ordinance. To that end, Section 603.1 of the MPC,4 states:

3
The Township joins in the ZHB’s brief.
4
Act of July 31, 1968, P.L. 805, as amended, added by the Act of December 21, 1988,
P.L. 1329, 53 P.S. §10603.1.

9
 In interpreting the language of zoning ordinances to
determine the extent of the restriction upon the use of the
property, the language shall be interpreted, where doubt
exists as to the intended meaning of the language written
and enacted by the governing body, in favor of the
property owner and against any implied extension of the
restriction.

53 P.S. §10603.1.

Here, the ZHB and Applicant argue the zoning ordinance requires a
maximum density of 1.2 dwellings per acre in the RA-2 district. The zoning
ordinance also requires a minimum lot size of 30,000 square feet. However, in
order to enforce the maximum density requirement, a lot must exceed the 30,000
square-foot minimum lot area requirement. Here, they assert, each of the proposed
lots meets, and even exceeds, the minimum lot area requirement, yet the proposed
development still fails to meet the maximum density requirement of 1.2 dwellings
per acre. The ZHB and Applicant contend this creates a conflict between two
separate provisions of the zoning ordinance.

The ZHB and Applicant further argue the ZHB properly concluded
Applicant’s two requested variances from the minimum lot width requirement
were de minimis. Zoning hearing boards have discretion to grant or deny a de
minimis variance. Hawk v. City of Pittsburgh Zoning Bd. of Adjustment, 38 A.3d
1061 (Pa. Cmwlth. 2012). “There are no set criteria for determining what will be
considered de minimis. Instead, the grant of a de minimis variance depends upon
the circumstances of each case.” Id. at 1066. The ZHB and Applicant argue the
degree of variation is only one of many factors the ZHB could consider in deciding

10
to grant a de minimis variance. They contend the circumstances presented here
warrant a de minimis variance as the credited evidence established Applicant’s
zoning plan would preserve the essential character of and be beneficial to the
surrounding neighborhood.

The ZHB and Applicant also argue this case is factually
distinguishable from Leonard, relied on by Objectors. In Leonard, the landowner
sought to subdivide his property into two 7,500 square foot lots and build a home
on each lot. The landowner sought a variance from the local ordinance, which set
the minimum lot size at 8,000 square feet. The zoning board granted the
landowner a de minimis variance, and the common pleas court affirmed. On
appeal, this Court reversed, concluding the variance was not de minimis. This
Court’s decision was based in part on its determinations that the property at issue
was not irregularly shaped and its subdivision would not maintain any open and
undeveloped space. The ZHB and Applicant maintain, in contrast to Leonard, here
the property is almost twice as deep as it is wide and there is no additional property
for sale that would correct its irregular shape. The ZHB and Applicant assert this
case is also distinguishable from Leonard because Applicant’s plan to merge the
proposed undeveloped Lot 3 with a contiguous property would maintain open and
undeveloped space. Instead, this case is more akin to West Bradford Township v.
Evans, 384 A.2d 1382 (Pa. Cmwlth. 1978), which this Court distinguished in
Leonard.

B. Analysis
A ZHB may grant a variance when the following criteria are met:

11
 (1) an unnecessary hardship will result if the variance is denied,
due to the unique physical circumstances or conditions of the
property; (2) because of such physical circumstances or
conditions the property cannot be developed in strict
conformity with the provisions of the zoning ordinance and a
variance is necessary to enable the reasonable use of the
property; (3) the hardship is not self-inflicted; (4) granting the
variance will not alter the essential character of the
neighborhood nor be detrimental to the public welfare; and (5)
the variance sought is the minimum variance that will afford
relief.

Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 (Pa.
Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014) (citation omitted).5

5
Similarly, the zoning ordinance states, as relevant:

A. Applicability. Upon appeal from a decision by the Zoning Officer,
the [ZHB] shall have the power to vary or adapt the strict application of
any of the requirements of this chapter where, by reason of exceptional
narrowness, shallowness or shape of a specific piece of property at the
time of the enactment of the chapter or by reason of exceptional
topographic conditions or other extraordinary and exceptional situation or
condition on such piece of property, the strict application of any regulation
enacted under this chapter would result in peculiar and exceptional and
undue hardship upon the owner of such property, but in no other case.

B. Condition. In general, the power to authorize a variance from the
terms of this chapter shall be sparingly exercised and only under peculiar
and exceptional circumstances.

C. Requirements and standards. No variance in the strict application
of the provisions of this chapter shall be granted by the [ZHB] unless the
[ZHB] finds that the requirements and standards are satisfied.

(1) The applicant must prove that the variance will not be contrary
to the public interest and that practical difficulty and unnecessary
hardship will result if it is not granted. In particular, the applicant
shall establish and substantiate that the request for the variance is
in conformance with all the requirements and standards listed
below:

(Footnote continued on next page…)

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 A dimensional variance involves a request to adjust zoning
regulations to use the property in a manner consistent with regulations, whereas a
use variance involves a request to use property in a manner that is wholly outside
zoning regulations. Hertzberg. The same criteria apply to use and dimensional
variances. Id. However, in Hertzberg, our Supreme Court set forth a more relaxed

(continued…)

(a) That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of lot size or
shape, or exceptional topographical or other physical conditions
peculiar to the particular property, and that the unnecessary
hardship is due to such conditions and not the circumstances or
conditions generally created by the provisions of this chapter in the
neighborhood or district in which the property is located.

(b) That, because of such physical circumstances or conditions,
there is no possibility that the property can be developed in strict
conformity with the provisions of this chapter and that the
authorization of a variance is, therefore, necessary to enable the
reasonable use of the property.

(c) That such unnecessary hardship has not been created by the
applicant or that the applicant at the time that he purchased the
property was not aware or could not reasonably have been
expected to be aware of the zoning classification and restrictions
placed on the property or the circumstances giving rise to the
hardship.

(d) That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is
located, nor substantially or permanently impair the appropriate
use or development of adjacent property, nor be detrimental to the
public welfare.

(e) That the variance, if authorized, will represent the minimum
variance that will afford relief and will represent the least
modification possible of the regulation in issue.

Section 500-3107(A)-(C) of the zoning ordinance.

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standard for establishing unnecessary hardship for a dimensional variance, as
opposed to a use variance.

Under Hertzberg, courts may consider multiple factors in determining
whether an applicant established unnecessary hardship for a dimensional variance.
These factors include: “the economic detriment to the applicant if the variance was
denied, the financial hardship created by any work necessary to bring the building
into strict compliance with the zoning requirements and the characteristics of the
surrounding neighborhood.” Id. at 50.

Although Hertzberg eased the requirements, it did not remove them.
Tri-County. An applicant must still present evidence as to each of the conditions
listed in the zoning ordinance, including unnecessary hardship. Id. Where no
hardship is shown, or where the asserted hardship amounts to a landowner’s desire
to increase profitability or maximize development potential, the unnecessary
hardship criterion required to obtain a variance is not satisfied even under the
relaxed standard set forth in Hertzberg. Id.

1. Maximum Density Requirement
Section 500-503 of the zoning ordinance, which sets forth the area and
dimensional requirements for the RA-2 district, states, in relevant part:

Unless a greater area or dimensional regulation is stated in §
500-502, Use regulations, for a specific use, all uses in the RA-
2 District shall meet the following requirements:

A. Minimum lot area: 30,000 square feet

****

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 C. Maximum density: 1.2 dwelling units per acre.

Sections 500-503 (A), (C) of the zoning ordinance.

In granting Applicant relief from the maximum density requirement,
the ZHB made the following pertinent findings and conclusions:

3. The [p]roperty is located in the [RA-2 district] of [the]
Township. It is 79,954 square feet in size. It accommodates a
ranch style single-family detached dwelling with typical
residential access walkways and a driveway.

4. The residential structure on the [p]roperty is presently vacant.

5. [Applicant] proposes to demolish the existing residential
structure and to subdivide the [p]roperty into three lots as
follows:

(1) Lot 1, which is proposed to be 30,008 square feet in
size to accommodate a single-family residential building
lot;

(2) Lot 2, which is proposed to be 30,152 square feet in
size to accommodate a second residential building lot;
and

(3) Lot 3, which is 19,794 square feet in size which is
proposed to be merged with a contiguous property tax
parcel #22-69-265. That tax parcel accommodates a
single-family detached dwelling which fronts on Carlene
Court. It is lawfully nonconforming to the minimum lot
width requirement of §500-503.B which requires a
minimum lot width of [sic] at the building setback line of
125 feet. Its existing lot width is 106.84 feet.

6. The existing single family residential use is permitted by
right in the [RA-2 district] in which the [p]roperty is located.

7. Similarly, according to [zoning] [o]rdinance §500-503.A, a
single-family residential use is permitted, by right, in the [RA-2
district] on lots that are at least 30,000 square feet in size.

15
 ****

14. Based upon the competent evidence of [Applicant’s
Engineer], who was qualified to testify as an expert in civil
engineering, the proposed structures on each of the two
building lots will meet the front, rear, and side yard setback
distances, building coverage, building height, and impervious
surface coverage ratio requirements of §500-503 of the [zoning]
[o]rdinance. Each of the proposed building lots will meet the
minimum lot area requirement of 30,000 square feet set forth at
§500-503.A.

****

19. The two building lots will result in a building density of
1.45 dwelling units per acre. [Zoning] [o]rdinance §500-503.C
limits the density to 1.2 dwelling units per acre. However,
[Applicant’s Engineer] credibly testified that he performed
calculations that indicate that, if §500-503.C is followed, it
would require a lot area of 36,300 square feet. This lot area is
in conflict with the minimum lot area of 30,000 square feet set
forth at §500-503.A.

****

3. As the law requires that conflicts within [z]oning
[o]rdinances be resolved in favor of the property owner, the
maximum density requirement of 1.2 dwelling units per acre,
contained at §500-503.C, in this instance, would require a
building lot greater in size than the minimum lot area
requirement of 30,000 square feet.

4. Accordingly, the [ZHB] concludes that a variance from
§500-503.C is necessary and warranted.

F.F. Nos. 3-7, 14, 19; Concls. of Law Nos. 3, 4. Upon review, we conclude the
ZHB erred in granting Applicant a variance from Section 500-503(C) of the zoning
ordinance’s maximum density requirement for several reasons.

16
 First, it is clear the ZHB did not grant Applicant relief from the zoning
ordinance’s maximum density requirement on the ground that Applicant proved it
satisfied the elements necessary for a de minimis variance. See, e.g., Appletree
Land Dev. v. Zoning Hearing Bd. of York Twp., 834 A.2d 1214, 1216 (Pa.
Cmwlth. 2003) (“The de minimis variance doctrine is a narrow exception to the
heavy burden of proof involved in seeking a variance. The doctrine applies only
where: (1) a minor deviation from the dimensional uses of a zoning ordinance is
sought, and (2) rigid compliance with the zoning ordinance is not necessary to
protect the public policy concerns inherent in the ordinance.”) (emphasis added)
(citations omitted).

Further, despite granting Applicant a variance from the maximum
density requirement, the ZHB made no determination that Applicant proved the
requisite unnecessary hardship or that any alleged unnecessary hardship was not
self-inflicted. This is not surprising given that Applicant only needs the variance
from the maximum density requirement because it intends to subdivide the
property and build two homes resulting in a violation of the maximum density
requirement despite the fact that it can use the property for one compliant home.
Thus, Applicant is creating the alleged hardship it seeks to remedy. Additionally,
because Applicant could use the property for one compliant home without the need
for zoning relief, the variance is not the minimum variance that would afford relief.

Nevertheless, the ZHB granted the “variance” from the maximum
density requirement on the ground that it conflicted with the minimum lot area
requirement. More particularly, the ZHB determined Applicant’s two proposed

17
building lots would result in a building density of 1.45 dwelling units per acre.
F.F. No. 19. The ZHB noted Section 500-503(C) of the zoning ordinance limits
the density to 1.2 dwelling units per acre. Id. However, the ZHB found
Applicant’s Engineer credibly testified that he performed calculations that indicate
that, if Section 500-503(C) is followed, it would require a lot area of 36,300 square
feet.6 Id. The ZHB determined this lot area is in conflict with the minimum lot
area of 30,000 square feet set forth in Section 500-503(A) of the zoning ordinance.
Concl. of Law No. 3. As the law requires that conflicts within zoning ordinances
be resolved in favor of the property owner, the ZHB stated, the maximum density
requirement of 1.2 dwelling units per acre set forth in Section 500-503(C), in this
instance, would require a building lot greater in size than the minimum lot area
requirement of 30,000 square feet. Id. Thus, according to the ZHB, a variance
was “necessary and warranted.” Concl. of Law No. 4.

Contrary to the ZHB’s determination, we perceive no conflict between
the lot area and density provisions. More particularly, Section 500-503(C) of the
zoning ordinance sets forth a maximum density of 1.2 dwelling units per acre. On
the other hand, Section 500-503(A) of the zoning ordinance requires a minimum lot
area of 30,000 square feet.7 Thus, the zoning ordinance requires that lots in the

6
Although the ZHB credited Applicant’s Engineer’s testimony on this point, our review
of the ZHB’s hearing transcript reveals Applicant’s Engineer offered no such testimony. Rather,
Applicant’s counsel made this statement.
7
Section 500-202 of the zoning ordinance defines “density” as “a measure of the number
of dwelling units per unit of area. It shall be expressed in dwelling units per acre. The measure
is arrived at by dividing the number of dwelling units by the base site area.” Id. (emphasis
added). That Section separately defines “lot area” as: “The area contained within the property
lines of the individual parcels of land shown on a subdivision plan, excluding any area within an
existing or designated future street right-of-way or any area required as open space under this
(Footnote continued on next page…)

18
RA-2 district be at least 30,000 square feet and contain a maximum of 1.2 dwelling
units per acre (or 43,560 square feet). Simply stated, Section 500-503(C) places a
cap on the allowable density (or intensity) of a permitted use permitted in the RA-2
district, while Section 500-503(A) sets a floor for the size of a lot on which a
permitted use may occur. Here, proposed Lots 1 and 2 slightly exceed (and
therefore satisfy) the minimum lot area requirement, but Applicant seeks a variance
to increase the maximum permissible 1.2 dwelling units per acre, which would
increase the permissible intensity of use in the RA-2 district. Because there is no
conflict between the zoning ordinance’s minimum lot area and maximum density
provisions, the ZHB erred in positing a conflict and granting a variance on this
basis.

Under the ZHB’s interpretation, as long as the minimum lot area of
30,000 square feet is satisfied, the maximum density requirement of 1.2 dwelling
units per acre must give way; therefore, an applicant could exceed the maximum
density requirement to any degree as long as its lot satisfies the minimum lot area
requirement. Such an interpretation would yield an absurd result, which we must
presume the local governing body did not intend in enacting the lot area and
density provisions. See 1 Pa. C.S. §1922(1) (in ascertaining the intention of the

(continued…)

chapter and including the area of any easements.” Id. (emphasis added). Clearly, “lot area” and
“density,” which are separately defined terms, are discrete concepts that regulate different
aspects of each lot.

19
legislative body in the enactment of an ordinance, court may presume the
legislative body does not intend a result that is absurd or unreasonable.)8

We also reject the ZHB and Applicant’s reliance on Section 603.1 of
the MPC. “While it is undeniable that we are to interpret ambiguous language in
an ordinance in favor of the property owner and against any implied extension of
the restriction, such a restrictive reading of an ordinance is unwarranted where ‘the
words of the zoning ordinance are clear and free from any ambiguity.’” City of
Hope v. Sadsbury Twp. Zoning Hearing Bd., 890 A.2d 1137, 1143 (Pa. Cmwlth.
2006) (quoting Isaacs v. Wilkes-Barre City Zoning Hearing Bd., 612 A.2d 559,
561 (Pa. Cmwlth. 1992)) (emphasis added). Thus, “[w]hile it is true that zoning
ordinances are to be liberally construed to allow the broadest possible use of land,
it is also true that zoning ordinances are to be construed in accordance with the
plain and ordinary meaning of their words.” Tri-County, 83 A.3d at 510 (quoting
Zappala Grp., Inc. v. Zoning Hearing Bd. of Town of McCandless, 810 A.2d 708,
710 (Pa. Cmwlth. 2002)). Because we perceive no conflict here based on the plain
language of the zoning ordinance’s minimum lot area and maximum density
provisions, the rule set forth in Section 603.1 of the MPC does not apply.

In any event, the proper method for raising a purported conflict
between the zoning ordinance’s minimum lot area and maximum density
provisions would be through a substantive validity challenge. However, Applicant

8
Although the Statutory Construction Act, 1 Pa. C.S. §§ 1501-1991, does not apply
expressly to zoning ordinances, the principles contained in that act are followed in construing a
local ordinance. Trojnacki v. Bd. of Supervisors of Solebury Twp., 842 A.2d 503 (Pa. Cmwlth.
2004).

20
did not raise a substantive validity challenge to the zoning ordinance, and the ZHB
did not utilize that rationale in granting Applicant’s request for relief from the
maximum density provision.

For all these reasons, the ZHB erred in granting Applicant variance
relief from the zoning ordinance’s maximum density requirement.

2. Lot Width Requirement
As to the lot width requirement in the RA-2 district, Section 500-503
of the zoning ordinance states:

Unless a greater area or dimensional regulation is stated in §
500-502, Use regulations, for a specific use, all uses in the RA-
2 District shall meet the following requirements:

****

B. Minimum lot width: 125 feet.

Section 500-503(B) of the zoning ordinance.

The ZHB found Applicant’s proposed Lot 1 would have a lot width of
106.73 feet and proposed Lot 2 would have a lot width of 107.24 feet. F.F. No. 15.
In granting relief from the 125-foot lot width requirement set forth in Section 500-
503(B), a deviation of approximately 15%, the ZHB stated Applicant’s request
involved only a “minor deviation from one of the dimensional requirements of the
[zoning] [o]rdinance.” Concl. of Law No. 5. The ZHB also determined the
construction of the two proposed new homes would enhance the property and the
neighborhood, Concl. of Law No. 6, and would not adversely impact property

21
values or have a negative impact on surrounding properties or uses. Concls. of
Law Nos. 8-9.

Despite these determinations, the ZHB made no determination that
Applicant proved the requisite unnecessary hardship, nor did it find any alleged
hardship was not self-inflicted. To that end, Applicant will need the two lot width
variances because it intends to create two new undersized lots where none
currently exist. As such, Applicant will be creating the undersized lot hardship it
seeks to remedy. Further, while Applicant asserts the property is irregularly
shaped because it is twice as wide as it is deep, the ZHB made no finding that this
purported irregular shape necessitated variance relief. And, in any event, the
property as it currently exists is over 200 feet wide, which is substantially greater
than the minimum lot width required under the zoning ordinance. Moreover, it is
beyond dispute that no variance is needed for Applicant to make reasonable use of
the property for one single-family home (indeed, a single-family home currently
exists on the property). Rather, Applicant seeks variance relief in order to
subdivide the property and construct two single-family homes in an effort to
maximize profitability. This is not sufficient to constitute unnecessary hardship.
Tri-County; Cardamone.9

Indeed, where no hardship is shown, or where the asserted hardship
amounts to a landowner’s mere desire to increase profitability, the unnecessary

9
Further, although the ZHB made a passing reference to the fact that Applicant seeks the
minimum variance that would afford relief, see Concl. of Law No. 10, this statement was in error
given that Applicant can use the property for one single-family home without the need for any
variance relief.

22
hardship criterion required to obtain a variance is not satisfied even under the
relaxed standard set forth by the Supreme Court in Hertzberg. See, e.g., Soc’y Hill
Civic Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012)
(rejecting applicants’ request for dimensional variance from zoning code’s loading
space requirement where need for variance was triggered by applicants’ desire to
expand use of property to maximize profitability); Singer v. Zoning Bd. of
Adjustment of City of Phila., 29 A.3d 144 (Pa. Cmwlth. 2011) (rejecting
applicant’s request for dimensional variances from zoning code’s parking, floor
area ratio and loading dock requirements where asserted hardship amounted to
applicant’s desire to maximize development potential of property); Lamar
Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of Pittsburgh, 997
A.2d 423 (Pa. Cmwlth. 2010) (rejecting applicant’s request for dimensional
variance for proposed sign where only asserted hardship involved alleged benefit
to community and increase in income); Twp. of Northampton v. Zoning Hearing
Bd. of Northampton Twp., 969 A.2d 24 (Pa. Cmwlth. 2009) (rejecting applicant’s
request for variance from ordinance’s off-street parking requirements where no
evidence of hardship presented even under relaxed Hertzberg standard and
evidence revealed applicant could use property in a manner consistent with
ordinance requirements); In re Boyer, 960 A.2d 179 (Pa. Cmwlth. 2008) (rejecting
applicant’s requests for dimensional variances from ordinance’s steep slope and
setback requirements in order to construct in-ground pool where no evidence of
hardship presented even under relaxed Hertzberg standard); Se. Chester County
Refuse Auth. v. Zoning Hearing Bd. of London Grove Twp., 898 A.2d 680 (Pa.
Cmwlth. 2006) (rejecting request for dimensional variance where evidence
indicated applicant could continue to operate at a profit without variance relief; no

23
hardship shown); One Meridian Partners, LLP v. Zoning Board of Adjustment of
City of Phila., 867 A.2d 706 (Pa. Cmwlth. 2005) (rejecting request for dimensional
variance from floor area ratio and height requirements where asserted hardship was
essentially financial in nature); Yeager v. Zoning Hearing Board of City of
Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001) (rejecting applicant’s request for
dimensional variances from ordinance’s setback and clear sight triangle
requirements where only hardship amounted to applicant’s desire to construct a
building for its new car dealership that complied with specifications required by
vehicle manufacturer).

In addition, while the ZHB noted Applicant’s requested deviations
from the zoning ordinance’s lot width requirement were minor, it did not explicitly
reference the de minimis variance doctrine in granting relief from the zoning
ordinance’s minimum lot width requirement.

As noted above, the de minimis variance doctrine is a narrow
exception to the heavy burden of proof involved in seeking a variance. Appletree
Land Dev. It applies only where: (1) a minor deviation from the dimensional
requirements of a zoning ordinance is sought, and (2) rigid compliance with the
zoning ordinance is not necessary to protect the public policy concerns inherent in
the ordinance. Id.

While it can be inferred that the ZHB determined that rigid
compliance with the zoning ordinance was not necessary to protect the public
policy concerns inherent in the ordinance, see Concls. of Law Nos. 6-9, the ZHB

24
made no such express determination. Moreover, the property lies in the RA-2
Residence Agricultural zoning district, the purpose and intent of which is as
follows:

The RA-2 Residence Agricultural District is composed of low-
density residential areas of the Township and open areas where
similar residential development is likely to occur. The purposes
of this district are to permit residential development at a low
density to provide a transition zone between agricultural areas
and medium-density residential development; to provide
standards which will encourage the installation of public
facilities and the preservation of permanent public open space;
to exclude activities of a commercial or industrial nature and
any activities not compatible with residential development; and
to otherwise create conditions conducive to carrying out the
purposes of this chapter as set forth in § 500-101.

Section 500-501 of the zoning ordinance (emphasis added). Clearly, the zoning
ordinance’s minimum lot width requirement is important to these objectives. See,
e.g., Appeal of Ressler Mill Found., 573 A.2d 675 (Pa. Cmwlth. 1990) (lot width
requirement works in conjunction with minimum lot area requirement to create
open space).

In addition, we agree with Objectors that the ZHB erred in granting as
de minimis the two lot width variances Applicant sought in light of our decision in
Leonard. There, the applicants sought a dimensional variance to subdivide their
conforming 15,000 square foot lot into two non-compliant lots with each lot being
7,500 square feet rather than the required 8,000 square feet. The proposed
deviation was 6.25%. In reversing decisions of the zoning board and the court of

25
common pleas that approved the variance as de minimis, this Court explained (with
emphasis added):

The [applicants] contend that this deviation is de minimis (1)
under [West Bradford Township] and (2) in light of the lot sizes
of other properties in the neighborhood.

West Bradford Township is similar to the case sub judice
in that the de minimis doctrine was applied to a subdivision of
property. However, the subdivision here would create the non-
conformity while in West Bradford Township the subdivision
merely intensified what appears to be a pre-existing non-
conformity. Furthermore, the lot to be subdivided in West
Bradford Township was irregularly shaped, which is not the
case here. Likewise, one of the lots created by the subdivision
in West Bradford Township was to be maintained as open,
undeveloped space, which again is not the case here.

Because of the factual dissimilarities between West
Bradford Township and the case sub judice, we decline to find
West Bradford Township dispositive here. The unique
circumstances that supported application of the de minimis
doctrine there simply are not present here so as to justify a
departure from the well-established burden of proof customarily
carried by a party seeking a variance.

Nor do we find persuasive the [applicants’] assertion that
the deviations here are de minimis in light of this particular
neighborhood. The record indicates that there are lots within
the immediate vicinity of the [applicants’] property which
conform to the ordinance’s minimum lot size requirement,
some of which are comparable to the [applicants’] 15,000
square foot property. Simply because there may be some lots in
this neighborhood which are less than 8,000 square feet is not,
in our opinion, sufficient to establish entitlement to a variance.
See Braccia v. Township of Upper Moreland Zoning Hearing
Board, [] 327 A.2d 886 ([Pa. Cmwlth.] 1974) (a variance was
denied despite the fact that only 2 of 25 parking lots complied
with the parking space dimensions required under the zoning
regulations); see also Campbell v. Ughes, [] 298 A.2d 690 ([Pa.
Cmwlth.] 1972) (this Court reversed the granting of a variance

26
 from an 85 foot lot width requirement despite evidence that 16
of 24 lots in the block had widths of less than 85 feet).

In any event, we must be mindful that zoning boards and
courts function, inter alia, to enforce zoning ordinances in
accordance with applicable law; not to impose their concepts of
what the ordinance ought to be. Gottlieb v. Zoning Hearing
Board of Lower Moreland Township, [] 349 A.2d 61 ([Pa.
Cmwlth.] 1975). We must also be mindful that the de minimis
doctrine is an extremely narrow exception to the heavy burden
of proof that a party seeking a variance must normally bear.

In accordance therewith, we now hold that the 500 square
foot deviations here are not de minimis as a matter of law. See
Andreucci v. The Zoning Hearing Board of Lower Milford
Township, [] 522 A.2d 107 ([Pa. Cmwlth.] 1987) (an 8%
deviation from an ordinance’s minimum lot size was not de
minimis). Thus, we decline to establish in the zoning law of this
Commonwealth by decision in this case that a subdivision
creating a 6% plus deviation from the ordinance lot size
minimum may be permitted solely on the basis that such
deviation is de minimis.

Because we have found that the [b]oard erred in applying
the de minimis doctrine to this case and because the
[applicants’] failed to establish any unnecessary hardship so as
to entitle them to a traditional variance, we will reverse the
[common pleas] court’s order which affirmed the [b]oard’s
decision.

Leonard, 583 A.2d at 12-13 (footnote omitted).

Here, as in Leonard, and unlike in West Bradford Township, the
subdivision would create the non-conformity as to lot width for the two proposed
newly created lots. Additionally, similar to Leonard and unlike in West Bradford
Township (in which the property at issue was “L-shaped”), the property here is not
irregularly shaped; indeed, the ZHB here made no finding that the shape of the

27
property justified the grant of two variances from the zoning ordinance’s lot width
requirement. Further, as we pointed out in Leonard, unlike West Bradford
Township in which one of the lots created by the subdivision was proposed to be
maintained as open, undeveloped space, such is not the case here as proposed Lots
1 and 2 would each contain single family homes and proposed Lot 3, to which
Applicant would add square footage, already contains a single-family home.

In addition, relying on our prior decision in Andreuccci, which held
an 8% deviation from a minimum lot size requirement was not de minimis as a
matter of law, in Leonard we declined to hold that the 500-square foot (or 6.25%)
deviations from the ordinance’s lot area requirement was de minimis. See also
D’Amato v. Zoning Bd. of Adjustment of City of Phila., 585 A.2d 580 (Pa.
Cmwlth. 1991) (13% reduction in required open space was not de minimis). Cf.
Twp. of Middletown v. Zoning Hearing Bd. of Middletown Twp., 682 A.2d 900
(Pa. Cmwlth. 1996) (6.76% increase in maximum building coverage requirement
that would allow applicants to add a garage onto their home was de minimis);
Ressler Mill Found. (4.7% deviation from required lot width (7-foot deviation from
150-foot requirement) to enable construction of single-family home and horse barn
on one lot was de minimis).

Similarly here, although there is no precise mathematical percentage
that marks the dividing line between de minimis and significant deviations,10 we
decline to hold that the two approximately 15% deviations from the zoning
ordinance’s lot width requirement, which would create two non-compliant lots, is

10
Swemley v. Zoning Hearing Bd. of Windsor Twp., 698 A.2d 160 (Pa. Cmwlth. 1997).

28
de minimis. See, e.g., Pugliese v. Zoning Hearing Bd. of Bethlehem Twp. (Pa.
Cmwlth., No. 2297 C.D. 2014, filed October 15, 2015), 2015 WL 6473668
(unreported) (zoning board properly determined applicant did not prove requested
deviation was insignificant where applicant sought two variances from minimum
lot width requirement to subdivide property and build two homes, thereby doubling
density of use and creating two substandard lots, where property could reasonably
be used for one single-family home without zoning relief).11

For all the foregoing reasons, we reverse the trial court’s order that
affirmed the ZHB’s decision and order granting Applicant’s three variance
requests.

ROBERT SIMPSON, Judge

11
Pursuant to Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code
§69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited
for its persuasive value.
We also distinguish our unreported decision in Laskowski v. West Chester Borough
Zoning Hearing Board (Pa. Cmwlth., No. 1902 C.D. 2012, filed July 11, 2013), 2013 WL
3487048, cited by Applicant, from the case at issue here. In Laskowski, we upheld a zoning
board’s grant of a de minimis variance from a zoning ordinance’s building height requirement for
a proposed apartment building based, in part, on the unusual circumstances of the grading on the
property.
Here, unlike in Laskowski, the ZHB did not grant Applicant’s request for variance relief
from the lot width requirement on the ground that the property contained unique or unusual
physical features that impacted its ability to comply with the minimum lot width requirement.
Indeed, it is only Applicant’s proposed subdivision of the property that would render it non-
compliant with the lot width requirement as the width of the existing property exceeds the zoning
ordinance’s minimum lot width requirement by more than 80 feet.

29
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and Lori N. Dunn, :
Appellants :
:
v. : No. 1436 C.D. 2015
:
Middletown Township Zoning :
Hearing Board :

ORDER

AND NOW, this 11th day of July, 2016, the order of the Court of
Common Pleas of Bucks County is REVERSED.

ROBERT SIMPSON, Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Theodore M. Dunn and :
Lori N. Dunn, : No. 1436 C.D. 2015
: Argued: May 13, 2016
Appellants :
:
v. :
:
Middletown Township Zoning :
Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

CONCURRING AND DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN FILED: July 11, 2016

I respectfully concur in part and dissent in part. I agree with the
majority’s conclusion that the ZHB erred in granting Applicant a variance from the
maximum-density requirement in section 500-503.C of the Ordinance. However, I
disagree with the majority’s conclusion that the ZHB erred in granting Applicant
two de minimis variances from the minimum-lot-width requirement in section 500-
503.B of the Ordinance.

A zoning hearing board may grant a de minimis variance if: “(1) a
minor deviation from the dimensional uses of a zoning ordinance is sought, and (2)
rigid compliance with the zoning ordinance is not necessary to protect the public
policy concerns inherent in the ordinance.” Appletree Land Development v.
Zoning Hearing Board of York Township, 834 A.2d 1214, 1216 (Pa. Cmwlth.
2003). “The grant of a de minimis variance is a matter of discretion with the local
zoning board.” Hawk v. City of Pittsburgh Zoning Board of Adjustment, 38 A.3d
1061, 1066 (Pa. Cmwlth. 2012).

The majority holds that the ZHB erred in concluding that Applicant
sought only minor deviations from the Ordinance’s lot-width requirement,
emphasizing that the proposed subdivision would create two 15-percent deviations.
However, “[t]here are no set criteria for determining what will be considered de
minimis. Instead, the grant of a de minimis variance depends upon the
circumstances of each case.” Id. (emphasis added) (footnote omitted); see also
Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160, 162-63
(Pa. Cmwlth. 1997) (“[T]here is no precise mathematical percentage which marks
the dividing line between de minimis and significant deviations.”).

Unlike many cases in which we have examined de minimis variances,
here the credited evidence establishes that Applicant’s zoning plan would benefit
the surrounding neighborhood rather than merely not be a detriment to it. (ZHB’s
Conclusions of Law, No. 6.) Schurr testified that the homes that Applicant
proposed to build on Lots 1 and 2 would enhance the aesthetic integrity of the
neighborhood. (N.T., 9/24/14, at 22.) In addition, Applicant’s engineer testified
that Applicant’s zoning plan would allow neighboring properties to connect to
water and sewer utilities. (Id. at 13.) Under these circumstances, I believe that the
ZHB properly concluded that Applicant sought only minor deviations from the
Ordinance’s lot-width requirement.

RSF - 2 -
 Additionally, the ZHB’s findings of fact and conclusions of law
establish that rigid compliance with section 500-503.B of the Ordinance was not
necessary to protect the Ordinance’s public policy of low-density residential
development and open space.1 Applicant would merge the undeveloped Lot 3 with
a contiguous property rather than developing the lot. (ZHB’s Findings of Fact, No.
5(3).) Additionally, the single-family homes that Applicant proposes to build on
Lots 1 and 2 would satisfy the Ordinance’s requirements for lot area, yard setback
distance, building height, and impervious surface coverage ratio. (Id., No. 14.)
Thus, Applicant’s zoning plan is consistent with the Ordinance’s public policy of
low-density development and open space in the RA-2 Residence Agricultural
District.

The majority’s reliance on Leonard v. Zoning Hearing Board of the
City of Bethlehem, 583 A.2d 11 (Pa. Cmwlth. 1990), is misplaced. Unlike the
present case, the zoning hearing board in Leonard did not find that granting the
requested variance would benefit the surrounding neighborhood. Additionally, our
conclusion in Leonard was, in part, based on the applicant’s failure to maintain
open space as part of his proposed subdivision of the property. Id. at 13. Because
Applicant’s zoning plan would preserve open space consistent with the
Ordinance’s public policy, Leonard is distinguishable. Therefore, I would
conclude that the ZHB properly granted Applicant two de minimis variances from
the minimum-lot-width requirement in section 500-503.B of the Ordinance.

1
Although the majority states that the ZHB did not expressly conclude that Applicant
satisfied this requirement for a de minimis variance, the majority acknowledges that “it can be
inferred” from the ZHB’s decision that the ZHB concluded that Applicant satisfied this
requirement. (Maj. Op. at 24-25.)

RSF - 3 -
 Accordingly, I concur in part and dissent in part.

___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge

.

RSF - 4 -