         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Damon Huston                            :
                                        :
            v.                          :   No. 1813 C.D. 2017
                                        :   Argued: October 15, 2018
Borough of Edinboro,                    :
Zoning Hearing Board                    :
and Borough of Edinboro                 :
                                        :
Appeal of: Borough of Edinboro          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: November 20, 2018


            The Borough of Edinboro (Borough) appeals from an order of the Court
of Common Pleas of Erie County (trial court), dated November 9, 2017. The trial
court reversed the decision of the Borough of Edinboro Zoning Hearing Board
(ZHB), thereby sustaining Damon Huston’s (Huston) appeal of the denial of his
application for a dimensional variance (Application). For the reasons discussed
below, we affirm in part and remand in part for further consideration by the trial
court.
                              I. BACKGROUND
            Huston is the owner of real property located at 217 Walnut Street in the
Borough (Property). The Property is located in an R-3 Lakeside Residential District
(R-3 District). Pursuant to Section 27-307 of the Borough’s Zoning Ordinance
(Ordinance), the Property is required to have a minimum 30-foot front yard setback
and a minimum 6-foot side yard setback, with an aggregate side yard setback
of 16 feet. The house located on the Property does not meet the minimum 30-foot
front yard setback requirement but qualifies as a preexisting, nonconforming
structure under the Ordinance. In August/September 2015, Huston replaced the
house’s existing front stoop, which measured 4’10” x 8’, with a new covered porch,
which measures 6’ x 20’.          Sometime thereafter, in May/June 2016, Billie
Fitzsimmons (Fitzsimmons), the Borough’s zoning officer/administrator, discovered
the covered porch and issued an enforcement notice to Huston. The enforcement
notice informed Huston that the construction of the covered porch at his Property
violated the Ordinance, because Huston failed to first obtain a zoning permit or
building permit. Subsequent thereto, on July 5, 2016, Huston filed an application
for zoning approval with the Borough. The application for zoning approval, which
Huston completed on July 31, 2015, before he began construction at the Property,
sought approval to replace the Property’s existing front porch with a 6’ x 20’ covered
porch. Fitzsimmons denied Huston’s application for zoning approval, and Huston
filed an application for a dimensional variance with the ZHB.
              The ZHB conducted a public hearing on Huston’s application for a
dimensional variance on August 3, 2016.1 Huston, not represented by counsel at the
time, testified that in July 2015 he completed an application for zoning permit and
submitted it to the Borough by handing it to a “young gentleman” through the


       1
         At the conclusion of the August 3, 2016 public hearing, the ZHB voted to continue the
hearing to September 7, 2016, for the sole purpose of discussing Huston’s application for a
dimensional variance. The ZHB did not take any additional testimony at the September 7, 2016
hearing.

                                              2
Borough window, but he did not include payment for the application fee.
(Reproduced Record (R.R.) at 11a-12a, 14a-15a.) Thereafter, from late August 2015
through early September 2015, Huston, Huston’s father, and Huston’s uncle
removed the existing stoop and constructed the new covered porch at the Property.
(Id. at 12a, 14a.) Subsequent thereto, in May 2016, Huston received a violation
notice from the Borough. (Id. at 13a.) Huston admitted that he was aware that he
needed to obtain a building permit and that he constructed the new covered porch
without a building permit. (Id. at 14a, 16a-17a.) When questioned why he did not
pursue a building permit, Huston explained:
             I attempted to make a couple phone calls, and I stopped in
             a couple of times. Whether [Fitzsimmons] was busy, that
             I don’t know, and my work schedule is very, very hectic.
             For me to actually get here when the building is still open,
             I have to take off time from work which cuts into my
             wages and travel time expenses and such else.
(Id. at 14a.) Huston also explained that from September 2015, when he completed
the new covered porch, to May 2016, when he received the violation notice, he did
not contact the Borough to determine what had happened to his building permit
application. (Id. at 17a.)
             On September 13, 2016, the ZHB rendered its decision, denying
Huston’s application for a dimensional variance.           In so doing, the ZHB
concluded: (1) Huston knowingly violated the Ordinance by failing to obtain a
zoning permit before constructing the covered porch; and (2) Huston failed to meet
the Ordinance’s criteria for a dimensional variance, because the unnecessary
hardship was created by Huston and was not due to any physical circumstances or
conditions unique to the Property. Huston appealed the ZHB’s decision to the trial
court, and the Borough intervened. The trial court, upon mutual agreement of the
parties, referred the matter to mediation. At the conclusion of the mediation, the
                                          3
parties agreed that Huston would obtain a survey of the Property and then apply to
the ZHB for reconsideration of his request for a dimensional variance. Based on the
results of the mediation, the trial court continued Huston’s appeal indefinitely to
allow the parties to pursue the proposed resolution.
             Huston obtained a survey of the Property on February 1, 2017.
Thereafter, on March 24, 2017, Huston submitted his Application to the ZHB. The
ZHB conducted a public hearing on Huston’s Application on April 19, 2017. At that
time, Huston presented photographs of other homes located in the R-3 District that
encroach into the 30-foot front yard setback, as well as letters of support from his
neighbors. While Huston and his attorney answered the ZHB’s questions and
clarified some issues for the record, Huston did not offer any additional substantive
testimony in support of his Application.
             On June 2, 2017, the ZHB rendered its written decision,2 denying
Huston’s Application. In so doing, the ZHB concluded that the hardship alleged by
Huston—i.e., the economic detriment that he would suffer by having to tear down
the newly-constructed covered porch—was self-inflicted, because Huston
knowingly constructed the covered porch without zoning approval. The ZHB also
concluded that no unnecessary hardship existed prior to the construction of the
covered porch, because the Property’s former stoop was consistent with the front
yard setbacks of the neighboring properties. The ZHB further concluded that the
requested variance was not de minimis. The ZHB also concluded that this case was
distinguishable from what it referred to as the Kelly Green (Green) case, a case in
which the ZHB granted a dimensional variance for an 8-foot covered porch in the


      2
         At the conclusion of the April 19, 2017 hearing, the ZHB voted to deny Huston’s
Application but did not issue its written decision until June 2, 2017.

                                           4
R-3 District, because: (1) the setback/encroachment dimensions and requested relief
were different in both cases; and (2) Huston knowingly failed to follow the process
to obtain zoning approval, whereas Green attempted to follow the process to obtain
zoning approval despite confusion created by the zoning administrator.
               Huston appealed the ZHB’s decision to the trial court, and the Borough
intervened. The trial court held a status conference on September 19, 2017. At that
time, the trial court heard oral argument relative to Huston’s appeal. Thereafter, on
September 28, 2017, the trial court judge conducted a site visit of the Property.
Subsequent to the site visit, on November 9, 2017, the trial court issued an opinion
and order reversing the ZHB’s decision and sustaining Huston’s appeal of the denial
of his Application. In so doing, the trial court concluded that Huston met the
requirements for a dimensional variance under the Ordinance or, alternatively, under
the de minimis doctrine.3 The Borough appealed the trial court’s decision to this
Court.
                       II. ARGUMENTS/ISSUES ON APPEAL
               On appeal,4 the Borough, without consideration of the effect of the trial
court’s decision to accept additional evidence, argues that the trial court erred in
reversing the ZHB’s decision because: (1) the ZHB properly concluded that Huston
failed to establish all of the elements required for a dimensional variance under the

         3
          In its opinion, the trial court set forth its standard of review as if it took no additional
evidence. On September 28, 2017, however, the trial court judge conducted a site visit of the
Property. An on-site inspection of the subject premises constitutes additional evidence and
requires the trial court to hear the matter de novo. See Board of Supervisors of Upper Merion Twp.
v. Wawa, Inc., 505 A.2d 645, 646-47 (Pa. Cmwlth. 1986) (Wawa, Inc.).
         4
         Given that the trial court took additional evidence in this case and considered the matter
de novo, this Court’s standard of review “is confined to determining whether [the trial court]
abused its discretion or committed an error of law.” Wawa, Inc., 505 A.2d at 646.


                                                  5
Ordinance;5 (2) the ZHB did not abuse its discretion by denying Huston’s
Application under the de minimis doctrine; and (3) the ZHB was not required to grant
Huston’s Application based on a variance the ZHB previously granted to another
applicant, which allowed that applicant to construct a porch that encroached on the
setback requirements.6 Given that the trial court took additional evidence by
conducting a site inspection of the Property, we must review the trial court’s
decision, not the ZHB’s decision.            For the purposes of this appeal, we have,
therefore, recharacterized the Borough’s arguments and will consider the following
issues: (1) whether the trial court erred by concluding that Huston was entitled to a
dimensional variance under the Ordinance; and (2) whether the trial court erred by
concluding that Huston was entitled to a dimensional variance under the de minimis
doctrine.7
           A. Whether the Trial Court Erred By Concluding That Huston
           Was Entitled To a Dimensional Variance Under the Ordinance
               The Borough argues that the trial court erred by concluding that Huston
was entitled to a dimensional variance under the Ordinance. More specifically, the
Borough argues that Huston failed to establish that he suffered an unnecessary
hardship because: (1) the financial hardship that Huston will face by having to
remove the covered porch from the Property was self-created; and (2) the house’s


       5
         While the Borough characterizes its argument as one of substantial evidence, the Borough
is essentially arguing that the trial court erred because Huston failed to meet the necessary
requirements for a dimensional variance. As this is a question of law, not fact, we will analyze it
as such in this opinion.
       6
         The ZHB did not file a brief in support of the Borough’s appeal, but indicated that it
stands behind its decision and concurs in the Borough’s arguments set forth in this appeal.
       7
         Given that we are reviewing the trial court’s decision, not the ZHB’s decision, we will
not address the Borough’s third issue on appeal—i.e., whether the ZHB was required to grant
Huston’s Application based on one of its prior decisions.

                                                6
location on the Property, the size and dimensions of the Property, and/or Huston’s
desire for a larger, covered porch are not sufficient to establish unnecessary hardship.
The Borough argues further that Huston also failed to establish that there is no
possibility that the Property can be developed in conformity with the Ordinance,
because the Property can be used as a residential dwelling without the covered front
porch and Huston “was permitted to replace the front stoop on his house without
running afoul of the [Ordinance].” (Borough’s Reply Br. at 6.) The Borough also
argues that Huston failed to even meet the more relaxed standard developed by the
Pennsylvania Supreme Court in Hertzberg v. Zoning Board of Adjustment of the City
of Pittsburgh, 721 A.2d 43 (Pa. 1998), because, while Hertzberg “does reduce the
quantum of proof necessary for the grant of a dimensional variance, it does not
eliminate the need for [Huston] to prove each of the required elements for a
variance.” (Borough’s Br. at 35.)
             In response, Huston argues that the physical placement of the house on
the Property creates an unnecessary hardship because it “is a unique physical
circumstance of the [P]roperty necessitating a variance in order to construct anything
on the front of [the house].” (Huston’s Br. at 11-12.) Huston argues further that
“the physical circumstances and conditions [of the Property] prevent any possibility
that the [P]roperty can be developed in strict conformity with the [Ordinance,]”
because he cannot safely utilize the house’s front entrance without steps and a
landing and no structure on the front of the house would be in conformity with the
Ordinance’s 30-foot front yard setback requirement. (Huston’s Br. at 12.) Huston
also argues that the trial court properly determined that, when applying the more
relaxed standard established by the Supreme Court in Hertzberg, he established that
he suffers an unnecessary hardship due to the size and configuration of the Property


                                           7
and the placement of the house located on the Property, a hardship that was not
self-created.
                A variance is a departure from the exact provisions of a zoning
ordinance. Brennen v. Zoning Bd. of Adjustment of the City of Connellsville,
187 A.2d 180, 182 (Pa. 1963). Pursuant to Section 27-608 of the Ordinance, the
ZHB may grant a variance if it finds that all of the following conditions exist, where
relevant:
                A.   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 this chapter in the neighborhood
                     or district in which the property is located[;]
                B.   Because of such physical circumstances or
                     conditions, there is no possibility that the property
                     can be developed in strict conformity with the
                     provisions of this chapter and that the authorization
                     of a variance is therefore necessary to enable the
                     reasonable use of the property[;]
                C.   Such unnecessary hardship has not been created by
                     the applicant[;]
                D.   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[;] and
                E.   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. In granting any variance, the
                     [ZHB] may attach such reasonable conditions and


                                           8
                  safeguards as it may deem necessary to implement
                  the purpose of this chapter.
            With regard to the first requirement for a variance—i.e., unique
physical circumstances and conditions of the property constituting an unnecessary
hardship—our Supreme Court has adopted a more relaxed standard with respect to
dimensional variances. See Hertzberg, 721 A.2d at 47-48. This Court has offered
the following explanation of the Supreme Court’s decision in Hertzberg:
                    A dimensional variance involves a request to adjust
            zoning regulations to use the property in a manner
            consistent with regulations, whereas a use variance
            involves a request to use property in a manner that is
            wholly outside zoning regulations. Hertzberg[, 721 A.2d
            at 47]. The same criteria apply to use and dimensional
            variances. Id. However, in Hertzberg, our Supreme Court
            set forth a more relaxed standard for establishing
            unnecessary hardship for a dimensional variance, as
            opposed to a use variance.
                    Under Hertzberg, courts may consider multiple
            factors in determining whether an applicant established
            unnecessary hardship for a dimensional variance. These
            factors include: “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.”
            [Id. at 50.]
                    Although Hertzberg eased the requirements, it did
            not remove them. Tri-County [Landfill, Inc. v. Pine Twp.
            Zoning Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth.),
            appeal denied, 101 A.3d 788 (Pa. 2014)]. An applicant
            must still present evidence as to each of the conditions
            listed in the zoning ordinance, including unnecessary
            hardship. Id. 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. Id.

                                        9
Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa. Cmwlth. 2015).
             Here, the trial court concluded that Huston was entitled to a
dimensional variance because he established, inter alia: (1) unnecessary hardship—
i.e., “the fact that [Huston’s house] is a [nonconforming] use presents a necessary
[sic] hardship for [Huston] in constructing his covered porch or any other structure
on [the P]roperty[,]”; and (2) that the Property cannot be developed in strict
conformity with the Ordinance and, therefore, a variance is necessary to enable the
reasonable use of the Property—i.e., steps and a landing are necessary to access the
front of the house safely and any replacement structure that is built would violate the
setback requirements of the Ordinance. (Trial Ct. Decision at 8-10.) In making
these conclusions, however, the trial court appears to have disregarded
Section 27-401 of the Ordinance, which provides that “[a]ny nonconforming use
may be continued, or may be changed to a use of the same or a more restrictive
classification.” Stated more simply, Section 27-401 of the Ordinance permitted
Huston to replace the existing stoop, a nonconforming structure, which had
deteriorated and fallen into disrepair, with a stoop of the same or smaller size,
without violating the Ordinance. A new stoop of the same or smaller size would
enable Huston to access the front of the house in a safe manner and to continue to
use the Property in the same manner that he has since he purchased the Property.
Thus, even if we apply the more relaxed standard for establishing unnecessary
hardship in the context of a dimensional variance developed in Hertzberg, Huston
has not demonstrated that he suffered any unnecessary hardship or that he cannot
develop the Property in strict conformity with the Ordinance, such that a variance is
needed to enable a reasonable use of the Property. For these reasons, we conclude




                                          10
that the trial court erred by concluding that Huston was entitled to a dimensional
variance under the Ordinance.
     B. Whether the Trial Court Erred By Concluding That Huston Was
     Entitled To a Dimensional Variance Under the De Minimis Doctrine
             The Borough argues that the trial court erred by concluding that Huston
was entitled to a dimensional variance under the de minimis doctrine.          More
specifically, the Borough argues that there is no general right to a de minimis
variance and the decision to grant such a variance is solely within the discretion of
the ZHB. The Borough argues further that the requested deviations from the 30-foot
front yard setback requirement and the 6-foot side yard setback are not minor. The
Borough also argues that, regardless of whether the deviations are minor, rigid
compliance with the Ordinance is necessary to protect the public policy concerns of
the Ordinance given the fact that Huston violated the Ordinance by constructing the
covered front porch without first obtaining a zoning permit/variance. In response,
Huston argues that, after relocating steps to the side of the covered porch, “the
current setback encroachment of the newly[-]constructed [covered] porch is nearly
identical to the setback encroachment that existed with the pre-existing,
non-conforming stoop.” (Huston’s Br. at 21.) Huston argues further that rigid
compliance with the Ordinance is not necessary to protect the public policy concerns
of the Ordinance because there is no public safety or welfare concern associated with
the covered porch, and the covered porch does not change the character or
appearance of the surrounding neighborhood, but rather, “is more in conformity with
the residences located within the [R-3 District].” (Huston’s Br. at 21.)
             The de minimis doctrine establishes “a narrow exception to the heavy
burden of proof involved in seeking a variance.” Dunn v. Middletown Twp. Zoning
Hearing Bd., 143 A.3d 494, 506 (Pa. Cmwlth.), appeal denied, 162 A.3d 1113

                                         11
(Pa. 2016). “A de minimis variance may be granted where the variation requested is
minor and rigid compliance with the zoning ordinance is not necessary to protect
public policy concerns.” Hawk v. City of Pittsburgh Zoning Bd. of Adjustment,
38 A.3d 1061, 1066 (Pa. Cmwlth. 2012). “There are no set criteria for determining
what will be considered de minimis. Instead, the grant of a de minimis variance
depends upon the circumstances of each case.” Id. (footnote omitted). In addition,
“there is no general right to a de minimis variance in this Commonwealth, and the
decision of whether to grant a de minimis variance is left to the discretion of the [fact
finder].” Alpine, Inc. v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186, 191
(Pa. Cmwlth. 1995) (internal citation omitted).
             Here, the trial court concluded that Huston’s request for a variance from
the front yard setback requirement was de minimis. In so doing, the trial court
reasoned:
                    Pursuant to the [Ordinance], the [front yard] setback
             in the [R-3 District], where [Huston’s] residence is
             located, is [30 feet]. [Huston’s] residence, built in the
             1950’s [sic], is currently [15 feet 2 inches] from Walnut
             Street (50.6% of the setback requirement), without
             considering the stoop or covered porch. [Huston’s] stoop
             had measured [4 feet 10 inches]; therefore, [Huston’s]
             residence with the stoop, which was constructed prior to
             the enactment of the [Ordinance] and was an approved
             [nonconforming] use, was [10 feet 4 inches] from Walnut
             Street (34.4% of the setback requirement). [Huston’s]
             covered porch measures [6 feet] and extends
             [1 foot 2 inches] further than [Huston’s] original stoop;
             therefore, [Huston’s] residence with the covered porch, for
             which a variance is requested, is [9 feet 2 inches] from
             Walnut Street (30.6% of the setback requirement).
             Therefore, [Huston’s] covered porch would decrease the
             [front yard] setback by only 3.8% and is de minimis.
                    Furthermore, rigid compliance with the [Ordinance]
             setback requirements is not necessary to protect the public

                                           12
             policy concerns of [the O]rdinance. As stated above,
             [Huston’s] residence with the stoop is a [nonconforming]
             use as it is well outside the setback requirements set forth
             by the [Borough]. [Huston’s] requested variance in order
             to keep his covered porch is [14 inches], which is a minor
             deviation of the setback requirements.             Multiple
             residences in the [Borough’s] Lakeside area are also
             outside the setback requirements.
(Trial Ct. Decision at 16 (internal citations omitted).) Based on our review of the
trial court’s decision, we find no abuse of discretion with the trial court’s conclusion
that Huston was entitled to a dimensional variance from the front yard setback
requirement under the de minimis doctrine.
                               C. Side Yard Setback
             In reaching its decision, the trial court observed that the side yard
setback was not at issue in this case. Based upon the record before the Court and the
briefs filed by the parties, it is unclear to the Court whether the trial court should
have considered the ZHB’s denial of Huston’s request for a dimensional variance
from the side yard setback requirement on appeal. When questioned at argument,
the parties appeared to be in disagreement as to whether there remained a need for
the trial court to consider the requested variance for the side yard setback. We,
therefore, remand the matter to the trial court for clarification and, if necessary, to
consider whether the ZHB committed an error of law by denying Huston’s request
for a dimensional variance from the side yard setback under the de minimis doctrine.
In so doing, we remind the trial court that, given that it conducted a site visit and
took additional evidence, it should review this matter de novo.




                                          13
                                III. CONCLUSION
             Accordingly, we affirm the trial court’s order in part and remand the
matter to the trial court for further consideration consistent with this opinion.




                                           P. KEVIN BROBSON, Judge




                                          14
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Damon Huston                                 :
                                             :
                v.                           :   No. 1813 C.D. 2017
                                             :
Borough of Edinboro,                         :
Zoning Hearing Board                         :
and Borough of Edinboro                      :
                                             :
Appeal of: Borough of Edinboro               :



                                       ORDER


                AND NOW, this 20th day of November, 2018, the order of the Court of
Common Pleas of Erie County (trial court) is hereby AFFIRMED in part, and the
matter is REMANDED to the trial court for further consideration consistent with
this opinion.
                Jurisdiction relinquished.




                                             P. KEVIN BROBSON, Judge
