Kneebone, R. v. Lutz, P., Aplts.

[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

[J-80-2021] [OISA: Mundy, J.] - 3
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