        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth B. McEwen,                      :
                         Appellant      :
                                        :
            v.                          :   No. 941 C.D. 2015
                                        :   Argued: November 17, 2015
The Zoning Hearing Board of             :
Sadsbury Township and Robert            :
A. Santora                              :

BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: January 5, 2016

            Kenneth B. McEwen (Objector) appeals from an order of the Court of
Common Pleas of Crawford County (trial court) that affirmed a unanimous
decision of the Sadsbury Township Zoning Hearing Board (ZHB) that granted
Robert A. Santora’s (Owner) application for a dimensional variance to construct an
attached garage on his nonconforming residential lot. The trial court, like the
ZHB, determined the variance had no negative impact on the neighborhood,
guaranteed permanent access to neighboring properties, did not encroach on
Objector’s property and complied with the zoning constraint of securing sufficient
open space between structures in the lakefront neighborhood. Objector contends
that the ZHB erred in determining the requested variance was de minimis and that
the absence of an attached garage on a long-used home is a hardship entitling a
landowner to a variance. For the reasons that follow, we reverse.
                                   I. Background
                                    A. Generally
             In 1990, Owner and his wife purchased a nonconforming house on a
lot fronting on Conneaut Lake in Sadsbury Township (Township), Crawford
County. The property is located in the Township’s R-1 Lake Area Residential
District (R-1). Objector and his wife own the house and lot immediately adjacent
and to the north. A similar residential property abuts Owner’s property to the
south.    Both properties front on the lake to the east. To the west, the properties’
rear yards face a gravel drive on vacant property owned by a property association,
the Conneaut Lake Park, Inc. (Association). The residents use the gravel drive for
access.


             Owner originally used the home as a summer residence. The original
structure, a summer house, had six or seven bedrooms, but no garage. Owner
typically stayed there from Memorial Day to Labor Day.


                B. Initial Permit Requests for House and Garage
             In 2012, Owner applied to the Township for two construction permits.
One application sought to build a new house located on the original structure’s
nonconforming footprint. Owner built the new house as a permanent residence.


             Owner’s second application requested approval to build an attached
garage located partially on Owner’s lot and partially on the Association’s vacant
property.     Previously, in 2010, Owner obtained a rectangular easement,
approximately 40’ long by 35.08’ wide, over the Association’s vacant property



                                          2
immediately to the west of his lot. Owner paid $2,000 for the easement. In the
easement agreement, the Association gave Owner an additional 20 feet to satisfy
the rear yard setback requirement which, under the prior ordinance, was 20 feet.
Section 203B of the Township’s current Zoning Ordinance (Zoning Ordinance),
effective January 1, 2014, requires a 25-foot rear yard setback for the R-1 District.
In short, the easement agreement granted Owner a perpetual and exclusive
easement over the Association’s property for the garage, and a non-exclusive
easement over the 20-foot wide area west of the garage, as an access route for the
residents of that ad hoc cul-de-sac.


                          C. Building Permits Approved
             After receiving Owner’s application for a zoning permit, the
Township’s solicitor and zoning officer studied the easement agreement and
determined that it satisfied the prior zoning ordinance’s rear yard setback. In
September 2012, the Township approved the permit.            Objector and another
neighbor appealed. Owner intervened.


                           D. 2014 Trial Court Decision
             Following a hearing, the ZHB upheld the permit.           However, in
February 2014, a common pleas court reversed the ZHB and revoked the permit.
See McEwen v. Zoning Hearing Bd. of Sadsbury Twp. (CP Crawford, Civil Div.
No. A.D. 2013-505, filed February 7, 2014); Reproduced Record (R.R.) at 245a-
57a. President Judge Anthony J. Vardaro determined the garage permit would
extend the nonconformity of the original structure over the rear yard and side yard
setbacks, and the rear property line. However, the trial court noted, the 20-foot



                                         3
exclusive easement cannot provide relief from the setback requirements, which
must be measured from the end of the property lot line. See Loch v. Zoning
Hearing Bd. of Borough of Emmaus, 569 A.2d 1035 (Pa. Cmwlth. 1990)
(easement should not be considered in calculating lot area requirements). Notably,
the trial court determined the easement did not change the existing lot lines and
thus did not constitute a subdivision. See Tr. Ct., Slip Op., 2/7/14, at 6-7; R.R. at
250a-51a. To that end, the trial court explained, if a private easement could satisfy
the setback requirements of a zoning ordinance, any landowner could usurp the
power of the ZHB to grant relief from a setback requirement by obtaining an
easement. Tr. Ct., Slip Op., 2/7/14, at 8; R.R. at 252a.


             The trial court further determined Owner had no vested right in the
building permit and no right to a variance by estoppel. See Tr. Ct., Slip Op.,
2/7/14, at 10-11; R.R. at 254a-55a. First and foremost, Objector timely appealed
the issuance of the permit for the garage. As such, Owner had no vested right in
the permit. In re Appeal of Broad Mountain Dev. Co., LLC., 17 A.3d 434 (Pa.
Cmwlth. 2011). In addition, because the Township only recently issued the permit
and Owner did not yet build the garage, Owner could not establish that the
Township failed to enforce the ordinance over a long period of time. See, e.g.,
Skarvelis v. Zoning Hearing Bd. of Borough of Dormont, 679 A.2d 278 (Pa.
Cmwlth. 1996) (for a variance by estoppel, an owner must establish each element
of a four factor test by clear and concise evidence; the first factor is a long period
of municipal failure to enforce the law when the municipality knew or should have
known of the violation). Other factors include: owner’s good faith and innocent
reliance on the validity of the use; whether landowner made substantial



                                          4
expenditures in reliance on his belief the use was permitted; and, whether the
denial of the variance would impose an unnecessary hardship, such as the cost to
demolish an existing building. Id.


             Ultimately, the court reversed the ZHB and revoked the building
permit for the garage, without prejudice to Owner to seek a variance for the garage.
See Tr. Ct. Order, 2/7/14, at 10-11; Reproduced Record (R.R.) at 257a.


                        E. Variance Request; ZHB’s Decision
             Thereafter, Owner applied for a dimensional variance from the
setback requirements to build a garage attached to his residence. Objector opposed
the variance request. At a hearing before the ZHB, Owner testified that the new
house, with a garage would be worth between $700,000 and $800,000. Notes of
Testimony (N.T.), 7/9/14, at 31; R.R. at 37a. Without the garage, it would be
worth $150,000-$200,000 less. N.T. at 32; R.R. at 38a. Owner asserted the
incomplete property, and its loss in value, constituted a hardship warranting a
variance for the garage. N.T. at 44; R.R. at 50a. Owner further testified his wife is
totally disabled and cannot walk on ice or snow.         N.T. at 33; R.R. at 39a.
Therefore, an attached garage is a necessity and Owner would not have built the
house without it. Id.


             Following the hearing the ZHB issued a decision granting Owner’s
request for a variance. The ZHB noted that both Objector and Owner attempted to
purchase land from the Association to construct a garage. ZHB Op., 10/10/14,
Finding of Fact (F.F.) No. 11. However, the Association could not sell land



                                         5
dedicated to public use. The ZHB noted Owner’s easement over the Association’s
property does not cross Objector’s property. F.F. No. 20. Rather, the Association
is the only party burdened by the easement. F.F. No. 21.


               At the hearing, Objector testified he opposed the attached garage
because it would impede his access to the gravel driveway and create safety issues.
F.F. No. 24. However, the ZHB observed, Objector would have guaranteed full
and permanent access to his property over Owner’s non-exclusive easement. F.F.
No. 25.


               Turning to the requirements for a traditional variance under Section
910.2 of the Pennsylvania Municipalities Planning Code (MPC),1 the ZHB found


       1
          Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, as
amended, 53 P.S. §10910.2. A party seeking a traditional variance must prove that unnecessary
hardship will result if the variance is denied and that the proposed variance is not contrary to the
public interest. Goldstein v. Zoning Hearing Bd. of Twp. of Lower Merion, 19 A.3d 565 (Pa.
Cmwlth. 2011). Pursuant to Section 910.2 of the MPC, in determining whether to grant or deny
a variance, the ZHB must consider each the following five factors: (1) whether there are unique
physical circumstances or conditions peculiar to that particular property, and that the
unnecessary hardship is due to such conditions, and not the circumstances or conditions
generally created by the zoning ordinance in the district where the property is located; (2) 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 the zoning ordinance and that a variance
is necessary to enable the reasonable use of the property; (3) that the unnecessary hardship was
not self-created by the applicant; (4) that the variance, if granted, will not alter the essential
character of the neighborhood or district where the property is located, nor substantially or
permanently impair the use or development of adjacent property, nor be detrimental to the public
welfare; and, (5) that the variance, if authorized, will represent the minimum variance needed to
afford relief and will represent the least modification possible of the regulation at issue. Id. The
MPC’s five-factor test for a variance is included in 601(H)(9) of the Township’s Zoning
Ordinance. See Reproduced Record (R.R.) at 322a.




                                                 6
that Owner established that the hardship he faced was not self-inflicted. F.F. No.
28.   Rather, the ZHB observed, Owner’s hardship resulted from his innocent
reliance on mistaken advice and opinions he received from others in positions of
authority. Id. To that end, the ZHB found Owner credibly testified he relied in
good faith on the opinions of the Township’s solicitor and zoning officer, and
others familiar with the Zoning Ordinance. F.F. No. 27.


            In granting Owner a dimensional variance from the rear and side yard
setback requirements, the ZHB noted it is well established that a request for a
dimensional variance is scrutinized under a relaxed standard of unnecessary
hardship. Hertzberg v. Zoning Bd. of Adjustment, 721 A.2d 43 (Pa. 1998); ZHB
Conclusion of Law (C.L.) No. 37. The reason for treating a dimensional variance
more leniently than a use variance is that the applicant is asking for nothing more
than a reasonable adjustment of the zoning regulations for the purpose of utilizing
the property in manner consistent with the zoning regulation. Hertzberg; C.L. No.
38. In Hertzberg, the Supreme Court held that in determining whether to grant a
dimensional variance, the tribunal:

            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.

Hertzberg, 721 A.2d at 50; ZHB’s C.L. No. 40.


            In the present case, the ZHB found the encroachment of Owner’s
garage to be de minimis in light of the existing nonconforming house, the open

                                        7
space created by the non-exclusive easement to the rear, and the new eight-foot
setback requirement for side yards of lots predating the Zoning Ordinance. C.L.
No. 41. A de minimis variance may be granted where the variation from the strict
requirements is minor and rigid compliance is not necessary to protect the public
policy concerns of the zoning ordinance. Lench v. Zoning Bd. of Adjustment, 13
A.3d 576 (Pa. Cmwlth. 2011); C.L. Nos. 42-44. There are no set criteria for
determining what constitutes a de minimis variance; the determination depends on
the circumstances of each case. Lench; C.L. No. 46.


            Here, the ZHB determined the rear yard setback created by the
perpetual easement had no negative impact on the neighborhood and guaranteed
permanent access to all neighbors, including Objector. C.L. No 48. Therefore, the
ZHB found the variance consistent with the intents and purposes of the open space
requirements of the Zoning Ordinance. Id.


            The ZHB further determined the evidence established Owner
complied with the Zoning Ordinance’s eight-foot side yard setback requirement on
the side that borders Objector’s property because the proposed garage would be 8.3
feet from Objector’s property. C.L. No. 49. The ZHB further found a de minimis
deviation on the other side of the garage, where the garage was only 3.65 feet from
the other neighbor’s property line. Id. Therefore, the ZHB reasoned the variance
would not have any negative impact on either Objector’s property, or the
surrounding neighborhood, which is predominantly an area of small lots where the
expansion of existing structures is difficult. Id. As such, the ZHB determined the
requested variance would not alter the essential character of the neighborhood or



                                        8
affect the utilization of Objector’s or any other nearby lakeside properties. C.L.
No. 51.


             Consequently, the ZHB granted Owner’s requested variance to
complete construction of an attached garage subject to the following four
requirements:   (1) Owners, their guests and assigns, cannot block, impede or
obstruct the rights of neighboring landowners, including Objector, to traverse over
and through the 20-foot non-exclusive easement; (2) Owners may only park a
vehicle in the non-exclusive easement for up to five minutes at any one time for the
express purpose of loading or unloading that vehicle; (3) at all other times, Owners
and their guests shall not park within the 20-foot non-exclusive easement;
however, Owners and their guests may park in the grassy area west of the
easement; and, (4) Owners shall post the 20-foot non-exclusive easement with
signs stating “Fire Lane – No Parking.” ZHB Op. at 10. Objector appealed the
ZHB’s grant of the variance.


                             F. Trial Court’s Decision
             In denying Objector’s appeal, the trial court, citing Hertzberg,
reasoned that the quantum of proof needed to establish an unnecessary hardship for
a dimensional variance is substantially lesser than that needed for a use variance.
Further, relying on Lench, the trial court noted that the ZHB need not make
findings on each of the traditional five factors for a variance in Section 910.2 of the
MPC where the requested variance was de minimis. See Nettleton v. Zoning Bd.
of Adjustment, 828 A.2d 1033 (Pa. 2003) (where de minimis doctrine applies, there
is no need to resort to any other theory of relief). In justifying the grant of the



                                          9
variance, the trial court noted a de minimis variance may be granted where the
variation from the zoning ordinance is minor and rigid compliance with the
ordinance in not necessary to protect the public policy concerns underlying the
ordinance. Lench. Tr. Ct., Slip Op., 5/5/15, at 8. The trial court found that such is
the case here, and the ZHB’s findings and conclusions to that effect were
supported by substantial evidence. Id.


               Nonetheless, Objector argued the variance deals with multiple setback
requirements involving Owner’s lot and a purported easement lot.2 Conversely,
Owner argued that only one of his side yards, and his rear yard, failed to meet the
setback requirements. To that end, Owner argued setbacks need not be strictly
enforced where there is enough open space between structures to satisfy the policy
goals of the zoning ordinance. Gottlieb v. Zoning Hearing Bd. of Lower Moreland
Twp., 349 A.2d 61 (Pa. Cmwlth. 1975). Owner further argued a variance may be
appropriate even where a structure encroaches on an entire setback, so long as the
easement abutting the property line provides enough open space to meet the
ordinance’s policy goals. Moyerman v. Zoning Hearing Bd. of Cheltenham Twp.,
138 A.2d 681 (Pa. 1958).


               Ultimately, the trial court noted, Owner obtained exclusive rights over
a portion of the easement, regardless of whether the variance is upheld, which

       2
          As discussed above, the trial court, in its February 2014 decision, determined the
Association’s grant of an easement did not create a new lot under the Township’s Subdivision
and Land Development Ordinance (SALDO). See Tr. Ct., Slip. Op., 2/7/14, at 4-6; R.R. at 248a-
50a. To that end, the trial court noted nothing in the easement contract mentioned a change in
existing lot lines, land development or the transfer of a fee. Tr. Ct., Slip. Op., at 5; R.R. at 249a.
As such, Objector’s argument, that the “easement lot” has its own setback requirements, fails.



                                                 10
Owner may exclude others from using. Tr. Ct., Slip. Op., 5/5/15, at 9. Further, the
conditions attached to the variance afford Objector and other neighbors rights of
ingress and egress over the non-exclusive easement that were not of record prior to
the grant of the variance. Id. Having determined the requested variance was de
minimis and that rigid compliance was not necessary to protect the public policy
concerns here, the trial court denied Objector’s appeal from the ZHB’s grant of the
variance. Hertzberg; Lench. Objector appeals.3


                                        II. Discussion
                          A. Hardship; De Minimis Variance
                                        1. Argument
               Objector first contends Owner’s desire to construct an attached garage
is not an unnecessary hardship that justifies a variance. In support of his position,
Owner cites McClintock v. Zoning Hearing Bd. of Fairview Borough, 545 A.2d
470 (Pa. Cmwlth. 1988), where the facts are somewhat similar to those here. In
McClintock, the ZHB granted the owner a variance to attach a two-car garage to
the side of his house adjacent to the objector’s property. The borough zoning
officer initially denied the building permit because it violated the zoning
ordinance’s aggregate side yard setback of 16 feet, with a minimum of six feet on
either side.    The proposed garage would fall within two feet of the adjacent

       3
         Where the trial court takes no additional evidence, the applicable standard of appellate
review is whether the ZHB committed an error of law or an abuse of discretion. Hertzberg v.
Zoning Bd. of Adjustment, 721 A.2d 43 (Pa. 1998). An abuse of discretion will only be found
where the ZHB’s findings are not supported by substantial evidence. Id. “Substantial evidence”
is defined as such relevant evidence as a reasonable mind may accept as adequate to support a
conclusion. Id. at 46 (citation omitted).




                                               11
property. The ZHB noted that the owner’s substandard lot predated the ordinance,
and that the proposed garage would eliminate most of the owner’s backyard.
Ultimately, the ZHB concluded the subject lot presented unique physical
circumstances that precluded development in accordance with the ordinance and
that a variance was necessary to establish reasonable use of the property. The ZHB
also found that the owner did not create the hardship, and that the variance would
not alter the essential character of the neighborhood or substantially impair the
appropriate use or development of the adjacent property. The ZHB also found the
variance represented the minimum variance necessary to afford relief. On appeal,
the trial court affirmed.


             In reversing, this Court observed that the owner presented no evidence
that the property could not be used within the existing space requirements or that
his property would be rendered valueless without the variance. We noted the
owner’s lot was presently developed and used for a single-family home and that
the owner could construct a one-car garage in conformity with the side yard
requirements.


             In a footnote, we also rejected the ZHB’s determination that the
deviation was de minimis. We reasoned that a four-foot intrusion into a six-foot
buffer zone was not de minimis. Id.


             Objector further asserts there is nothing unique about Owner’s lot; it
is configured similarly to those around it. Owner presented no evidence of any
peculiarity of his property. Although Objector constructed a garage within the



                                        12
footprint of his original house, Owner testified before the ZHB that he had no
desire to put a garage within the footprint of the original nonconforming house.
R.R. at 56a.


               Objector also cites Doris Terry Revocable Living Trust v. Zoning
Board of Adjustment, 873 A.2d 57 (Pa. Cmwlth. 2005), a post-Hertzberg case
where this Court reversed a zoning board of adjustment’s grant of a variance for a
motorcycle garage in a historic residential district in the City of Pittsburgh. The
variance for the garage reduced the 10-foot side yard setback to 2.5 feet and
reduced the 2-foot rear yard setback to zero. The zoning board also conditioned
the variance on the prerequisite that the owner obtain a certificate of
appropriateness, and that he meet all requirements of the applicable building code.
The trial court affirmed the grant of the variance.


               In reversing, this Court reasoned that even under Hertzberg, a
dimensional variance may not be granted unless it meets the traditional five
conditions for a variance. To that end, the Court reasoned:

                     The overriding standard of a variance is
               unnecessary hardship. At the hearing, Intervenors did
               not define their hardship, economic or otherwise, and
               they offered no evidence as to why the particular
               placement of the garage was required to avoid the
               unspecified hardship.

Doris Terry Trust, 873 A.2d at 63.


               In Goldstein v. Zoning Hearing Board of the Township of Lower
Merion, 19 A.3d 565 (Pa. Cmwlth. 2011), another post-Hertzberg case, this Court

                                          13
affirmed the ZHB’s denial of a dimensional variance from an aggregate side yard
setback requirement for a pool house where the owners failed to establish any
unique physical conditions on the property, or any resulting unnecessary hardship.
In fact, the owners presented no testimony of any unique physical conditions of the
property.


             In Goldstein, we found no error in the ZHB’s determination that the
owners’ alleged hardship was self-created because they decided to build the pool
house in the setback areas prior to obtaining zoning approval. In particular, we
noted the owners could have located the pool house eight feet closer to the pool
and maintained the aggregate side yard setback.


             Objector also cites Society Hill Civic Association v. Philadelphia
Zoning Board of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012), where this Court
reversed the zoning board’s grant of a variance from the requirement of a loading
area for buildings greater than 50,000 square feet. In Society Hill, the developer
sought to construct a 90,000 square foot residential building without the loading
area. However, the property could be used in compliance with the zoning code as
it existed, as a single-family residence. We noted the developer’s alleged hardship
was its desire to expand the use of the property to maximize profitability. In
reversing the dimensional variance, we reasoned that the developer’s desire to
maximize profitability is not a sufficient hardship, even under Hertzberg.




                                         14
            Here, Objector asserts, Owner’s hardship is his desire to maximize the
development potential of his property. Owner could have designed his home to
have a garage on the first floor. However, he did not wish to do so.


            Further, Objector contends Owner used his lot for more than 20 years
without a garage. Where the property is actually used for a purpose permitted by
the ordinance, the owner does not suffer from an unnecessary hardship. Patullo v.
Zoning Hearing Bd. of Township of Middletown, 701 A.2d 295 (Pa. Cmwlth.
1997).


            As a separate issue, Objector asserts the variance granted was not de
minimis. The de minimis doctrine is a narrow exception applicable only in limited
situations where the proposed dimensional deviation from the zoning requirement
is minor and rigid compliance is unnecessary to protect the public policy concerns
of the ordinance. See, e.g., Swemley v. Zoning Hearing Bd. of Windsor Twp., 698
A.2d 160 (Pa. Cmwlth. 1997) (34% variation from front setback requirement was
not de minimis).     In Swemley, we cited several other cases where smaller
deviations were not considered de minimis. See Leonard v. Zoning Hearing Bd. of
City of Bethlehem, 583 A.2d 11 (Pa. Cwmlth. 1990) (6.25% deviation from open
area requirement was not de minimis despite the presence of other lots in the
neighborhood with similar deviations).


            Here, even accepting the 20-foot nonexclusive easement as a rear yard
setback, Owner would still have a 5-foot or 20% deviation from the 25-foot rear
yard setback under the current Zoning Ordinance. Further, the garage addition



                                         15
would leave only a 3.65-foot side yard setback on the north side, more than a 50%
deviation from the new eight-foot side yard setback requirement in Section
405A(1) of the Zoning Ordinance for lots that predate the zoning classification.
See R.R. at 293a.


                                    B. Analysis
             Objector first contends Owner’s desire to construct an attached garage
in order to complete his home is not an unnecessary hardship that justifies a
variance. Objector asserts Owner testified before the ZHB that his hardship was
primarily, if not entirely, financial, and the lack of a garage did not deprive him of
the reasonable use of the property. See N.T. at 43-44; R.R. at 49a-50a. To that
end, Owner’s counsel argued before the ZHB (with emphasis added):

             Again, we are not contesting by way of the hardship that
             he can’t use the home in any way. We’ll stipulate that he
             can still fish and have barbeques and he can still have his
             daughter over and visitors. We will stipulate to that. The
             hardship here isn’t that he can’t do any of those things.
             The hardship is that the property is not complete and it
             has been diminished in value. Its not worth what it
             would have been had the garage been completed.

                                       ****

             We are not saying the hardship that’s being alleged isn’t
             that it couldn’t have been built a certain way. The
             hardship that we are alleging is the economic impact of
             not being able to complete what had been started.

N.T. at 43-44, 51; R.R. at 49a-50a, 57a.




                                           16
             As discussed above, Owner testified his property, with the garage,
would be worth between $700,000 and $800,000. N.T. at 31; R.R. at 37a. Without
the garage, Owner testified his property would be worth between $150,000 to
$200,000 less. N.T. at 32; R.R. at 38a.


             Additionally, Owner testified that Objector built his garage directly
into the structure of his home. N.T. at 49; R.R. at 55a. When asked what
conditions of his property prevented Owner from doing the same thing, Owner
stated he did not want to do that because he did not want to put a garage on the first
floor of his home. Id. In short, Owner did not want to live on top of a garage. Id.
To that end, Owner further testified: “I don’t need anybody to tell me what I can
build and can’t build and how to design my own home.” N.T. at 50; R.R. at 56a.


             Owner also testified his wife is disabled and cannot walk on ice or
snow. However, Owner did not explain why she could not access a garage built
into their home. Moreover, Owner’s wife’s disability is not a hardship peculiar to
Owner’s property.


             Given the lack of any testimony of any unique physical conditions
peculiar to Owner’s property, which sets it apart from neighboring properties, we
must conclude the ZHB erred in determining Owner established an unnecessary
hardship warranting the grant of a dimensional variance under the relaxed
Hertzberg standard. Society Hill Civic Ass’n; Goldstein; Doris Terry Trust. In
short, Owner’s desire to maximize the value of his property, by itself, does not
establish an unnecessary hardship entitling Owner to add a dimensionally



                                          17
noncompliant garage to his property.          Hertzberg; Society Hill Civic Ass’n;
Goldstein; Doris Terry Trust.


             The ZHB also erred in determining the deviation from the Zoning
Ordinance’s rear yard and side yard setback requirements was de minimis.
Swemley; Leonard. Owner’s proposed garage would extend over the entire 25-
foot rear yard setback of Owner’s lot and 3.65 feet into the 8-foot side yard setback
to the north. As noted by the trial court in its February 2014 decision interpreting
the previous ordinance, the Zoning Ordinance requires that the rear setback must
be calculated from the lot line that abuts the Association’s property and that an
easement cannot be considered in calculating lot area requirements. Loch. Tr. Ct.,
Slip Op., 2/7/14 at 6-7; R.R. at 250a-51a. As the trial court observed in 2014, the
deviation from the rear yard setback requirement would be more than 100%,
because it crosses the rear property line. The result is the same under the current
Zoning Ordinance. See Zoning Ordinance at 75-76 (definition and interpretation
of setbacks); R.R. at 335a-36a.


             Finally, Owner’s garage would leave only a 3.65 foot side yard
setback from the property to the north. This is more than a 50% deviation from the
applicable eight-foot side yard requirement. Consequently, the de minimis doctrine
is inapplicable here. As such, the ZHB’s reliance on Lench is misplaced.




                                         18
                            C. Self-Created Hardship
                                   1. Argument
             Objector also argues the ZHB erred and abused its discretion granting
Owner a variance where Owner plainly testified he could have constructed the
garage within the footprint of the original nonconforming structure but simply
chose not to do so. Objector asserts this is the essence of a self-created hardship.
Goldstein.


             In an attempt to establish that the hardship was not self-inflicted,
Owner argued before the ZHB that he innocently relied on the mistaken advice of
Township’s solicitor and zoning officer. The ZHB credited this argument. See
ZHB Op., F.F. No. 28. However, Judge Vadaro rejected this argument in his 2014
decision, wherein he determined Owner had no right to a permit for the garage
under either a vested rights or variance by estoppel theory.


                                    2. Analysis
             Owner, by acknowledging he could have constructed a home with a
garage on the first floor, essentially admitted he created his own hardship. Owner,
unlike Objector, constructed a new home on his lot that did not incorporate a
garage into its design. Further, Owner did not set aside enough room on the
remainder of his undeveloped property for an attached garage. Clearly, such a
hardship is self-inflicted. Goldstein; Doris Terry Trust.


             Moreover, although Owner claimed an innocent reliance on the
representation of the Township’s solicitor and zoning officer that the non-exclusive



                                         19
easement would satisfy the rear yard setback requirements, this does not change
the fact that he created his own hardship by building a new home on the
nonconforming footprint without incorporating a garage. Goldstein.


             In addition, Objector timely appealed the issuance of the permit for
the garage and the grant of the variance. Therefore, Owner had no vested right in
either the permit or the variance. Broad Mountain Dev. Co.


             Finally, Owner had no right to a variance by estoppel. The Township
only recently issued the permit, and Owner did not yet build the garage. Thus,
Owner could not establish that the Township failed to enforce the ordinance over a
long period of time. Skarvelis.


                                  III. Conclusion
             Based on the foregoing, we hold the ZHB erred in granting Owner a
dimensional variance from the rear and side yard setbacks of the Zoning Ordinance
to complete construction of an attached garage on his property. First, the de
minimis doctrine is inapplicable here. Swemley; Leonard. The Zoning Ordinance
requires that a setback be calculated from the lot line, not the end of the easement.
See Zoning Ordinance at 75-76; R.R. at 335a-36a. Owner’s proposed garage
would extend over the entire 25-foot rear yard setback of Owner’s lot and 3.65 feet
into one of the 8-foot side yard setbacks. In other words, the deviation from the
rear yard setback requirement would be more than 100% because it crosses the rear
property line. In addition, the side yard to the north would have a greater than 50%
deviation from the setback requirement.



                                          20
             Further, Owner cannot meet the traditional five-factor test for a
variance set forth in Section 910.2 of the MPC and Section 601(H)(9) of the
Zoning Ordinance.      As discussed above, Owner failed to present sufficient
evidence of unnecessary hardship attributable to any unique circumstances of his
property. Rather, Owner merely sought to maximize the value of his property by
adding a dimensionally noncompliant garage.        Even with regard to a purely
dimensional variance, an owner’s desire to maximize the value of his property is
insufficient to establish an unnecessary hardship warranting the grant of a
dimensional variance under the relaxed Hertzberg standard. Society Hill Civic
Ass’n; Goldstein; Doris Terry Trust.


             Also, Owner, by acknowledging he could have constructed a home
with a garage on the first floor, admitted that he created his own hardship. Owner,
unlike Objector, constructed a new home on his lot that did not incorporate a
garage into its design.    However, Owner did not leave enough room on the
remainder of his undeveloped property for a garage. Clearly, such a hardship is
self-inflicted. Goldstein; Doris Terry Trust.


             Further, although the ZHB found that the variance, coupled with the
non-exclusive easement had no negative impact on the neighborhood, and
guaranteed ingress and egress for Objector and owner’s other neighbors, this
finding cannot excuse failure to meet the hardship requirement for a variance.
Goldstein.




                                         21
            For the reasons stated herein, we reverse the trial court’s order
denying Objector’s appeal and hold that the ZHB erred in granting Owner’s
requested variance.




                                   ROBERT SIMPSON, Judge




                                     22
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth B. McEwen,                     :
                        Appellant      :
                                       :
            v.                         :   No. 941 C.D. 2015
                                       :
The Zoning Hearing Board of            :
Sadsbury Township and Robert           :
A. Santora                             :


                                    ORDER

            AND NOW, this 5th day of January, 2016, for the reasons stated in the
foregoing opinion, the order of the Court of Common Pleas of Crawford County is
REVERSED.




                                     ROBERT SIMPSON, Judge
