Wilson v. Plumstead Township Zoning Hearing Board

DISSENTING OPINION BY

Judge SIMPSON.

I respectfully disagree with the rationale and the result reached in the majority opinion. For the following reasons, I would affirm.

Primarily, I disagree with the majority’s discussion of self-imposed hardship. The fact-finder, the trial court here, identified the hardship as “the surrounding parcels of land are dissimilar and disharmonious” and “the non-residential and commercial nature of the area near the property renders it largely [unusable] for traditional residential purposes.” In particular, the trial court found (with emphasis added):

We also believe the surrounding parcels of land are dissimilar and disharmonious to the subject property. The parcels of land within the one mile stretch of Route 611 where the Property is located present a variety of commercial and non-residential land uses. Specifically, the Court learned of the following uses on the east and west side of Route 611 from Curly Hill to Stump Road: tree *855farm, nursery, two (2) separate churches, residences used for various contracting businesses, tavern, auto body shop, auto sales lot, two (2) banks, three (3) separate shopping centers, chiropractor’s office, fruit store, automotive repair shop, a bell manufacturing company, excavation company, doctor’s office and a large u-pick style farm. In addition, the view from the rear of the home is of a cement and septic services plant. Such evidence paints a picture of a parcel of land located on a high-speed roadway surrounded by properties utilized for commercial purposes. Accordingly, we find the non-residential and commercial nature of the area near the Property renders it largely [unusable] for traditional residential purposes and believe the Wilsons have proven an unnecessary hardship.

Trial Court Slip Opinion, 4/25/05 at 12. These findings are supported by the evidence. In addition, they are reasonable. Who would want to live there? 1

The majority opinion redefines the hardship as “Landowner’s inability to utilize the Property solely as an office.” Majority Opinion, at 852. It then states the hardship was created by the purchase itself, the hardship was known or knowable at the time of the purchase, and the hardship does not derive from the inherent characteristics of the property but rather from the landowner’s personal desire to gain a greater use of the property than those permissible and viable uses specified in the zoning district. Majority Opinion, at 852. I disagree with these conclusions for both logical and legal reasons.

Logically, I don’t see how the dissimilar and disharmonious situation found by the trial court could possibly be created by the landowner’s purchase. Also, I don’t understand how any desire of the landowner created the high-speed roadway, the dissimilar and disharmonious commercial uses, or the view. These conditions existed independent of any action of or any thought by the landowner. Whether or not these conditions constitute unnecessary hardship (which is a different question), they were not created by and existing for the first time when the property was purchased.

Legally, I question whether a reviewing court may redefine the hardship found by the fact-finder. It seems to constitute fact-finding. Our Supreme Court recently admonished this Court to refrain from substituting our judgment for that of the fact-finder in a zoning case. Noah’s Ark Christian Child Care Ctr., Inc. v. Zoning Hearing Bd. of W. Mifflin, 584 Pa. 9, 880 A.2d 596 (2005).

Moreover, the majority’s discussion is at best inconsistent with our recent decision in Manayunk Neighborhood Council v. Zoning Bd. of Adjustment of the City of Phila., 815 A.2d 652 (Pa.Cmwlth.2002), petition for allowance of appeal denied, 574 Pa. 777, 833 A.2d 145 (2003), and with scholarly opinion. In Manayunk, we held that pre-purchase knowledge of zoning restrictions limiting development, without more, does not create a hardship. Accord 2 Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 6.2.13 (2001 ed. & Supp. 1 2005). Under this authority, the *856state of a landowner’s knowledge of viable uses is not a self-created hardship. Nevertheless, the majority declares the landowner “purchased the Property under a false assumption, or with prior knowledge, that he could not use his Property solely as an office.” Majority Opinion, at 852.

Finally, I don’t think that the landowner’s attempt to live in the property precludes relief. Rather, I would affirm the grant of a variance, because, as found by the trial court, no one would want to live in a house on a high-speed roadway, surrounded by dissimilar commercial uses, and with a view of a cement and septic services plant.

. The majority concludes this finding constitutes an error of law because the district is not zoned for traditional residential purposes. As can be seen in the quote above, however, the trial court did not state that the property is zoned for traditional residential purposes. Instead, a fair reading of the entire statement reveals the trial court found that no one would want to reside in this house because of the roadway, the dissimilar commercial uses and the view.

I know of no rule of law that precludes such a factual determination, and the majority opinion cites to none.