[J-80-2021] [OISA: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
RUTH L. KNEEBONE : No. 52 MAP 2021
:
: Appeal from the Order of the
v. : Commonwealth Court at No. 807
: C.D. 2019 dated July 9, 2020,
: Reconsideration Denied August 26,
ZONING HEARING BOARD OF THE : 2020, Reversing the Order of the
TOWNSHIP OF PLAINFIELD AND : Northampton County Court of
PATRICK LUTZ AND PAMELA LUTZ : Common Pleas, Civil Division, at No.
: C-48-CV-2018-11586 dated June 7,
APPEAL OF: PATRICK LUTZ AND : 2019.
PAMELA LUTZ :
: ARGUED: December 7, 2021
OPINION IN SUPPORT OF REVERSAL
CHIEF JUSTICE BAER DECIDED: April 28, 2022
This Court granted allowance of appeal to decide whether the Commonwealth
Court applied an incorrect standard of review and substituted its judgment for that of the
lower tribunals when it reversed the grant of a dimensional variance. The Opinion in
Support of Affirmance (“OISA”) answers this question in the negative, holding that the
intermediate court applied the correct standard, and accurately concluded that there was
an absence of substantial evidence to support the Board’s conclusion that an
unnecessary hardship existed. I respectfully disagree.
It is well-settled that “the grant of a dimensional variance is of lesser moment than
the grant of a use variance,” as the “latter involves a proposal to use the property in a
manner that is wholly outside the zoning regulation[,]” rather than merely requesting a
reasonable adjustment of an ordinance in order to utilize the property in a way that is
consistent with the applicable regulation. Hertzberg v. Zoning Bd. Of Adjustment of City
of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). In fact, in Hertzberg, this Court held that this
important distinction entitled courts to employ a more relaxed standard of unnecessary
hardship when considering a request for a dimensional variance. See id. at 50 (finding
that to “justify the grant of a dimensional variance, courts may consider multiple factors,
including 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”).
Importantly, when, as here, the trial court does not conduct its own independent
hearing or receive additional evidence beyond that which was taken before the zoning
board, the applicable standard of appellate review is an abuse of discretion. “An abuse
of discretion will be found only where the zoning board's findings are not supported by
substantial evidence.” Id. at 46. See also id. (defining substantial evidence as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion”).
Turning to the case sub judice, following two hearings, the Board, by unanimous
vote, approved the Lutzs’ request for a dimensional variance. In its written opinion, the
Board made a number of factual findings, including that the: (1) Lutzs’ lot is undersized;1
(2) land immediately behind the Lutz’ property is a 130-acre farm; (3) proposed
construction would meet the zoning ordinance’s side-yard setback requirements; and (4)
1 Specifically, the Board found “that due to the undersized dimensions of the lot,
compliance with the dimensional requirements for setbacks creates a hardship[] relative
to th[e] property.” In re Request for Dimensional Variance, No. 2018-06, Opinion at 9
(Plainfield Twp. Zoning Hearing Bd. Nov. 5, 2018) (Finding of Fact No. 55); see also id.
at 3, ¶9 (“[T]he subject property is a previously existing non-conforming lot, in that it only
measures one-half (1/2) acre in area, and therefore, is a smaller lot than what is currently
required in the Farm and Forest Zoning District.”).
[J-80-2021] [OISA: Mundy, J.] - 2
18-foot encroachment into the rear-setback would not negatively impact the surrounding
properties or the character of the neighborhood. Given its findings, the Board determined
that the Lutzs’ ability to comply with the rear-setback requirement of the zoning ordinance
created a hardship, and that granting the Lutzs’ variance request was appropriate
because the proposed addition would not be offensive to the surrounding area.
This decision was upheld by the trial court, which found that the Board’s decision
was supported by substantial evidence of record. As explained in greater detail by the
OISA, the Commonwealth Court reversed, criticizing the Board’s determination that a
hardship existed and disagreeing with the lower court that substantial evidence supported
the Board’s determination.
Respectfully, I conclude that the Commonwealth Court erred in reversing the
Board. As acknowledged by the OISA, “municipal zoning boards are better positioned
than reviewing courts to assess local conditions and make reasoned judgments about
when circumstances prevailing in their area, combined with strict adherence to local
zoning regulations, may give rise to an unnecessary hardship.” OISA at 20. Indeed, I
believe that local zoning boards should be afforded great deference, given their intimate
knowledge of the areas in which these variances are sought. See e.g. Metal Green Inc.
v. City of Philadelphia, 266 A.3d 495 (Pa. 2021) (noting that “we have cautioned that
reviewing courts are not super boards of adjustment or planning commissions of last
resort”).
Moreover, as an overarching matter, as discussed above, the Commonwealth
Court has supplanted in many instances, including the instant matter, zoning hearing
board discretion by errantly substituting its own viewpoint disfavoring zoning variances
for the decision of local zoning boards. See e.g. Graybrook v. City of Pittsburgh Zoning
Board of Adjustment, 2017 WL 6523000, *5 (Cmwlth Ct. 2017) (unpublished
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memorandum) (reversing a trial court’s affirmation of a zoning hearing board’s grant of
dimensional variances and finding, inter alia, that although the homeowner wished to
renovate his house to make it larger in a way that was not permitted under the zoning
ordinance, “[w]ishes and desires alone … do not give rise to a hardship for dimensional
variance purposes”) and McEwen v. Zoning Hearing Bd. of Sadsbury Twp., 2016 WL
50855, at *10 (Cmwlth Ct. 2016) (unpublished memorandum) (reversing the grant of a
dimensional variance and holding, inter alia, that an owner’s desire to maximize the value
of his property by adding a dimensionally non-compliant garage was “insufficient to
establish an unnecessary hardship warranting the grant of a dimensional variance under
the relaxed Hertzberg standard”).
Both as a matter of policy and law, the Commonwealth’s Court’s conduct in this
regard supplants both the Legislature and this Court by interpreting unnecessary hardship
too narrowly in the context of dimensional variances, ignoring the deferential standard of
review under which the local zoning hearing board’s decisions should be assessed. See
Hertzberg, supra. I believe the Hertzberg decision was aimed at providing more flexibility
to zoning hearing boards when assessing whether a dimensional variance is appropriate.
Thus, unlike the intermediate court here, I would interpret more broadly what constitutes
an unnecessary hardship and respectfully call on the Commonwealth Court to follow the
law, which mandates that zoning hearing boards have broad discretion to grant
dimensional variances without concern that the Commonwealth Court will engage in
plenary review and substitute its judgment inappropriately.
Considering the foregoing, I would hold that it was well-within the Board’s
discretion to find that the adjustment sought by the Lutzs was warranted under the
aforementioned circumstances. Quite simply, the Board’s decision, as affirmed by the trial
[J-80-2021] [OISA: Mundy, J.] - 4
court, was supported amply by the record. Consequently, the grant of the dimensional
variance should have been affirmed.
Justice Dougherty joins this opinion in support of reversal.
[J-80-2021] [OISA: Mundy, J.] - 5