            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paul Heck,                                  :
                      Appellant             :
                                            :
       v.                                   : No. 1900 C.D. 2017
                                            : ARGUED: November 13, 2018
Worcester Township Zoning                   :
Hearing Board and Worcester                 :
Township and Peter Horgan                   :

BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                            FILED: December 19, 2018

       Appellant Paul Heck (Objector) appeals from the Court of Common Pleas of
Montgomery County’s (Trial Court) December 1, 2017 Order, through which the
Trial Court affirmed the Worcester Township Zoning Hearing Board’s (Board)
February 3, 2017 decision to grant a dimensional variance sought by Peter Horgan
for a property located at 2131 Bethel Road (Property) in Worcester Township
(Township). After careful review, we reverse the Trial Court’s Order.

                                        Background
       The Property is comprised of 7.67 acres and zoned “AGR”1 under the
Worcester Township Zoning Ordinance (Zoning Ordinance). The Property is
rectangular in shape, with dimensions of roughly 300 feet by 1160 feet and contains
a single-family home. Board’s Decision at 3. Judy Graham owned the Property and


       1
          “AGR” is defined in the Zoning Ordinance as shorthand for the Township’s “Agricultural
District.” Zoning Ordinance § 150-5.
lived on premises in the home until her death in December 2010, after which title
was transferred by her estate to Wendy G. Matthews2 on December 16, 2011.
Original Record (R.) at 190-94; Notes of Testimony (N.T.), 11/22/16, at 53-54. The
Property remained unoccupied after Ms. Graham’s passing and, as the years passed,
the house and surrounding grounds fell into disrepair. On November 15, 2012, Ms.
Matthews placed the Property on the market. N.T., 11/22/16, at 53-54; R. at 218.
       On October 25, 2016, Ms. Matthews entered into an agreement of sale for the
Property with Mr. Horgan. The agreement of sale was contingent upon Mr. Horgan
receiving all necessary approvals from the Township to allow for subdivision of the
Property into two parcels. R. at 195-210. Shortly thereafter, Mr. Horgan filed a
Request for Variance (Request) with the Board, seeking a dimensional variance from
the requirement that each parcel have a minimum width of 250 feet along its frontal
boundary.3 Id. at 13-16; see Zoning Ordinance § 150-12.B (“Minimum lot width. All
lots shall meet the following lot width requirement . . . Lots which front secondary
collector or primary streets (highways) shall have a minimum lot width measured at
both the building and street lines of at least 250 feet for every building or use.”).
       As proposed, the Property would be split into two parcels, one measuring 3
acres in size, with 275 feet of frontage along Bethel Road, and the other being a 4.67-
acre “flag lot” that included a narrow, 25-foot-wide “pole,” abutting the length of

       2
           Ms. Matthews was the executrix of Ms. Graham’s estate. R. at 191.

       3
              Flag lots with 25 foot access strips are permitted in Worcester
              Township under [Zoning Ordinance] Section 150-179; however,
              because of the provisions of [Zoning Ordinance] Section 150-
              12.B(2) requiring a minimum 250 foot lot width at the building line
              and at the street line, flag lots are not permitted in the AGR District
              if the flag lot would access onto a secondary collector or primary
              street [such as Bethel Road].
Board’s Decision at 3-4.


                                                 2
the smaller parcel and affording access to the broader “flag” from Bethel Road via a
driveway. R. at 215-16; N.T., 11/22/16, at 15-18.
       The Board held a hearing regarding Mr. Horgan’s Request on November 22,
2016. John Anderson, a civil engineer, testified as an expert witness in support of
the Request. Mr. Anderson noted initially that Mr. Horgan was abandoning a
development plan that had been proposed by Pat Sparango, owner of a neighboring
property, and approved by the Board in 2006, whereby the Property would have been
subdivided into 3 parts and, utilizing part of Mr. Sparango’s land, would have been
accessed via a common driveway. N.T., 11/22/16, at 10-12; N.T., 12/27/16, at 74;
see R. at 188-89. Mr. Anderson then discussed Mr. Horgan’s desired subdivision
plan, stating that the Property was “very narrow for its depth,” which made it
impossible to subdivide it without getting a dimensional variance regarding lot width
at the street line. N.T., 11/22/16, at 15-18. In Mr. Anderson’s opinion, the proposed
plan called for a “very reasonable use of the [P]roperty . . . [in which Mr. Horgan
would] utiliz[e] one lot for [his] eventual residence and then sell[] off the rear lot as
part of the subdivision.” Id. at 19. According to Mr. Anderson, this use would not
alter the essential character of the surrounding area,4 and represented the minimum
variance necessary to afford relief. Id. at 19-22.5 Mr. Anderson also noted that the

       4
          Mr. Anderson noted that there are “other [nearby] flag lots that [are] . . . very similar to
this particular [proposed] lot [subdivision,]” singling out a neighboring property that had been
subdivided at some point in the past in a manner virtually “identical” to that sought by Mr. Horgan.
N.T., 11/26/16, at 20.

       5
         Two brief testimonial interludes occurred next. Mark Constable, owner of a neighboring
property, questioned Mr. Anderson about the Property’s topography in the context of stormwater
management, closing with comments in favor of Mr. Horgan’s Request. N.T., 11/26/16, at 25-31.
Mr. Constable was followed by Mary Grace Sparango, who identified herself as having power-of-
attorney for Pat Sparango, her father. Id. at 32-36. Ms. Sparango was eventually sworn in, after
some discussion about whether she had legal authority to represent her father, but declined to



                                                  3
Property could theoretically be subdivided into four plots and still be in compliance
with the Zoning Ordinance’s minimum lot size requirement for the AGR district, but
that Mr. Horgan had instead chosen to pursue a lesser, two-parcel subdivision plan.
Id. at 15-16.
       Thereafter, Objector, who owns a parcel that abuts the Property, questioned
Mr. Anderson about the placement of the driveway, as well as whether the depth of
the Property in relation to its width was actually a unique physical characteristic that
justified a dimensional variance. Id. at 37-41. Objector also pointed out that the
deterioration of the Property’s single-family home had not been caused by the
Township, implying that it was Ms. Matthews’ fault that the house and its grounds
were in such poor condition. Objector further questioned Mr. Anderson about
whether he was “aware that there are six similarly sized 300-foot lots” in the area,6
and contested the propriety, under the circumstances, of referencing relief the Board
had granted in years past regarding other requests for variances. Id. at 41-44.
       Mr. Horgan then testified, providing additional information regarding how he
desired to use the Property. According to Mr. Horgan, he and his wife lived nearby
and were looking to “downsize” from their current home. Id. at 49. Assuming that
the Request was granted, they would demolish Ms. Graham’s former residence and
build a “ranch house” on the smaller, 3-acre lot. Id.; see N.T., 12/27/16, at 70 (Mr.
Horgan’s attorney stated, “Any revitalization of the property would involve


question any of the witnesses and then expressed her support for the Request toward the end of the
hearing. See id. at 32-36, 48, 57, 59.

       6
          The Board later pointed out that Objector’s own documentary evidence did not support
this claim, as “there are only two (2) other lots shown on [Objector’s proffered] tax map fronting
on Bethel Road, [which are] not impacted by the [nearby Pennsylvania] [T]urnpike [and are] of a
similar configuration, but with somewhat less square footage than the [Property].” Board’s
Decision at 5.


                                                4
demolishing the existing structure and rebuilding a new dwelling in place of that
one[.]”). They would then keep the larger, 4.76-acre flag lot “for one of our children
or to sell off, however that plays out.” N.T., 11/22/16, at 49-50.
      Objector again testified that the variance was not warranted, in part because
“[t]here is absolutely nothing unique here [about the Property]” that justified
granting a dimensional variance, stating that the current use of the Property was
“fabulous” and, consequently, “[t]here is no reason to chop[] it up.” Id. at 51-52. He
then responded to several questions posed by Mr. Horgan’s attorney regarding his
knowledge of the condition of the Property’s single-family home, as well as about
the distance between Objector’s driveway and the one proposed for the flag lot. Id.
at 53-55.
      The Board then continued the matter until the next scheduled hearing, on
December 27, 2016. Id. at 59-60. At this second hearing, both Objector and Mr.
Horgan’s attorney entered additional exhibits into the record and reiterated a number
of the points that had been made in support of their respective positions at the
previous hearing. See N.T., 12/27/16, at 64-99. The Board then closed the record and
voted unanimously to grant Mr. Horgan’s Request. On February 3, 2017, the Board
issued its Decision.7

      7
          The Board specifically found:
               A. There are unique physical circumstances or conditions, including
               narrowness or shallowness of lot size or shape, and other physical
               conditions peculiar to the . . . [P]roperty, resulting in an unnecessary
               hardship which is due to such conditions, and not the circumstances
               or conditions generally created by the provisions of the Zoning
               Ordinance in the neighborhood or district in which the [P]roperty is
               located.
               B. Because of such physical circumstances or conditions, there is no
               possibility that the [P]roperty can be subdivided and used in strict
               conformity with the provisions of the Zoning Ordinance, and the



                                                  5
       Objector then appealed to the Trial Court on March 3, 2017. The Trial Court
took no additional evidence and subsequently affirmed the Board’s Decision on
December 1, 2017. R. at 451. This appeal followed.
                                              Issues
       On appeal,8 Objector argues that the Board erred in granting Mr. Horgan’s
Request, and that the Trial Court erred in affirming the Board, because a dimensional
variance was not warranted under the circumstances. See Objector’s Br. at 10.
Objector offers the following reasons for his assertion: (1) the Property’s dimensions
are not “unique physical conditions” that create an “unnecessary hardship” justifying

              authorization of a variance is therefore necessary to enable the
              reasonable use of the [P]roperty.
              C. The hardship has not been created by [Mr. Horgan].
              D. The granting of the variance will not frustrate the intent of the
              ordinance, or adversely impact the development of adjoining
              properties, or alter the essential character of the neighborhood;
              E. The variance requested is the minimum variance to afford relief
              under the circumstances.
Board’s Decision at 6. Furthermore, the Board stated:
              [Mr. Horgan’s] proposal virtually mirrors the flag lot configuration
              on the immediately adjacent parcel. There are other flag lots and
              numerous cul-de-sacs serving smaller lots in the area. Finally, the
              Board has also taken into consideration the additional factor
              regarding the dilapidated condition of the [P]roperty, which, has
              now existed for ten (10) years since the last approval by this Board.
              It is therefore appropriate to now conclude that the [P]roperty is
              likely to remain in such dilapidated condition, absent zoning relief
              from this Board, which will make reasonable development and re-
              use of the property financially feasible.
Id. at 9.

       8
           Since the Trial Court took no additional evidence, our standard of review is restricted to
determining whether the Board committed an abuse of discretion or an error of law. Valley View
Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639-40 (Pa. 1983). “We may conclude
that the Board abused its discretion only if its findings are not supported by substantial evidence.
. . . By ‘substantial evidence’ we mean such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 640 (citations omitted).


                                                 6
a dimensional variance, especially in light of the Property’s longstanding, successful
usage as an undivided, single-family, residential plot; (2) any hardship impeding
usage of the Property is self-created, both in terms of Ms. Graham’s former home
being allowed to deteriorate after her passing, and by virtue of Mr. Horgan’s desire
to subdivide the Property in accordance with his preferred development plan; and
(3) the 90% decrease in frontage along Bethel Road that would be permitted by
virtue of the dimensional variance (i.e., 25 feet versus the Zoning Ordinance-
mandated 250 feet) is not the least modification necessary to afford relief. Id. at 14-
25.
       The Board responds that
               [t]he long and narrow configuration of the [Property]
               creates an unnecessary hardship, especially when one also
               considers the mirror image flag lot configuration of the
               adjacent parcel to the east, and the fact that the [P]roperty
               has been vacant and on the market for years. As a result,
               the Board reasonably concluded that there is apparently no
               buyer who is willing to purchase the 7.67 acres [sic] and
               build just one (1) very large mansion on this [Property]
               right next to the [Pennsylvania] Turnpike and adjacent to
               an identical flag lot configuration.
Board’s Br. at 15.9 According to the Board, “[t]he rear five (5) acres of this
[Property] are basically not usable without the minor relief granted[,]” which, in the
Board’s view, is the least variance necessary to enable development of the Property
and will not alter the essential character of the surrounding area. Id. at 7, 16-17.
                                           Analysis
       An applicant must satisfy a heavy burden of proof when seeking a variance,
as it is well-settled that “variance[s] should be granted sparingly and only under

       9
        The Township did not file a separate brief on its own behalf and, instead, has adopted the
Board’s brief as its own. See Township’s Joinder Br. at 2.



                                                7
exceptional circumstances.” Rittenhouse Row v. Aspite, 917 A.2d 880, 884-85 (Pa.
Cmwlth. 2006). Under the Pennsylvania Municipalities Planning Code (MPC),10 a
zoning board may grant an applicant’s request for a variance only where all of the
following conditions are satisfied:
                (1) 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 the
                zoning ordinance in the neighborhood or district in which
                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 the authorization of a variance
                is therefore necessary to enable the reasonable use of the
                property.
                (3) That such unnecessary hardship has not been created
                by the [applicant].
                (4) 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.
                (5) 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 910.2(a) of the MPC, 53 P.S. § 10910.2(a).11

       10
            Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

       11
          Added by the Act of December 21, 1988, P.L. 1329. The Township has expressly adopted
this variance test by reference. See Zoning Ordinance § 150-139(A) (“Requests for variances shall
be considered by the . . . Board in accordance with the procedures contained in the [MPC], §§



                                                8
             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 [or property] into strict compliance with the
             zoning requirements and the characteristics of the
             surrounding neighborhood.
Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721 A.2d 43, 50 (Pa.
1998). “The quantum of proof required to establish unnecessary hardship is indeed
lesser when a dimensional variance, as opposed to a use variance, is sought.” Id. at
48. However, this does not mean that “dimensional requirements . . . [are] ‘free-fire
zones’ for which variances [can] be granted when the party seeking the variance
merely articulate[s] a reason that it [will] be financially ‘hurt’ if it [cannot] do what
it want[s] to do with [a] property.” Soc’y Created to Reduce Urban Blight v. Zoning
Bd. of Adjustment of City of Philadelphia, 771 A.2d 874, 877 (Pa. Cmwlth. 2001).
      To that effect, our appellate courts have
             consistently reject[ed] requests for dimensional variances
             where proof of hardship is lacking. 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.
Soc’y Hill Civic Ass’n v. Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187
(Pa. Cmwlth. 2012) (emphasis added). Indeed, “[a] variance, whether labeled
dimensional or use, is appropriate ‘only where the property, not the person, is subject
to hardship,’” and, thus, the onus is on the applicant to firmly establish that “a
substantial burden . . . attend[s] all dimensionally compliant uses of the property,
not just the particular use [that the applicant has chosen].” Yeager v. Zoning Hearing


150-139B and 150-142K of this [Zoning Ordinance] and Article XXVI of Chapter 150 of the
Worcester Township Code.”).


                                           9
Bd. of the City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (citation
omitted).
      Here, it is evident Mr. Horgan’s Request was driven by his desire to subdivide
the Property, something which cannot be done without special dispensation from the
Zoning Ordinance’s lot-width requirements. See N.T., 11/26/16, at 18, 49-50
(testimonial statements by Mr. Anderson and Mr. Horgan). The Board recognized
as much when it determined that “[b]ecause of [the Property’s unique] physical
circumstances or conditions, there is no possibility that [it] can be subdivided and
used in strict conformity with the provisions of the Zoning Ordinance.” Board’s
Decision at 6.
      However, while splitting the Property into two parcels might be financially
advantageous to Mr. Horgan through a future sale of the flag lot, and the Township
would benefit from rejuvenation of the deteriorated Property, these interests do not
establish a suitable basis for granting Mr. Horgan’s Request. Indeed, the Board
should have questioned whether the Property’s unique physical characteristics
present a significant impediment to developing the Property in conformity with the
Zoning Ordinance’s dictates, not whether the Zoning Ordinance’s strictures act as
an obstruction to Mr. Horgan’s development proposal. Consequently, because there
is no evidence of record showing that Mr. Horgan cannot rehabilitate the Property
in a Zoning Ordinance-compatible manner, there is no support for the Board’s
conclusion that the Property is burdened by an unnecessary hardship justifying relief
from the Zoning Ordinance’s lot-width requirements. Therefore, we conclude that




                                         10
the Board erred in granting Mr. Horgan’s Request,12 and the Trial Court erred in
affirming the Board’s Decision.


                                              __________________________________
                                              ELLEN CEISLER, Judge




       12
           As noted supra, Ms. Graham’s former home would have to be knocked down for any
type of redevelopment project to proceed, even one that fully complies with the Zoning Ordinance,
such as using the entire existing Property as the situs of a single house. See N.T., 12/27/16, at 70.
Therefore, the dilapidated state of the home does not justify the Board’s grant of the requested
dimensional variance.


                                                11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Heck,                        :
                 Appellant        :
                                  :
     v.                           : No. 1900 C.D. 2017
                                  :
Worcester Township Zoning         :
Hearing Board and Worcester       :
Township and Peter Horgan         :

                                ORDER


     AND NOW, this 19th day of December, 2018, the Court of Common Pleas of
Montgomery County’s December 1, 2017 Order is hereby REVERSED.



                                  __________________________________
                                  ELLEN CEISLER, Judge
