          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ruth L. Kneebone,                        :
                    Appellant            :
                                         :
             v.                          :
                                         :
Zoning Hearing Board of the              :
Township of Plainfield and               :   No. 807 C.D. 2019
Patrick Lutz and Pamela Lutz             :   Submitted: May 12, 2020



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: July 9, 2020


             Ruth L. Kneebone (Appellant) appeals the June 7, 2019 order of the
Court of Common Pleas of Northampton County (Trial Court) that affirmed the
decision of the Plainfield Township Zoning Hearing Board (Board) granting the
request of Patrick and Pamela Lutz (Intervenors) for a dimensional variance from
the setback requirements applicable to their backyard for the purpose of constructing
a covered deck and stairway attached to their dwelling. Upon review, we reverse.
             Intervenors own a property located at 5735 Kesslersville Road in
Plainfield Township, Northampton County (Property). See Trial Court’s Opinion of
the Court dated June 7, 2019 (Trial Court Opinion) at 1. On June 22, 2018,
Intervenors filed a zoning permit application with Plainfield Township seeking to
construct a new deck on the Property. See Trial Court Opinion at 1-2; see also
Zoning/Building Permit Application dated June 22, 2018 (Zoning Permit
Application), Reproduced Record (R.R.) at 3a-9a. Plainfield Township’s Zoning
Officer denied the application because the proposed new deck did not comply with
Section 27-305.7 of the Plainfield Township Zoning Ordinance, which requires a
50-foot setback from a rear property line for single-family detached dwellings
located within Plainfield Township’s Farm and Forest Zoning District, in which the
Property is situated.    See Trial Court Opinion at 2; see also Zoning Permit
Application, R.R. at 8a; Letter from Plainfield Township Zoning Officer to
Intervenors dated July 17, 2018 (Zoning Denial Letter), R.R. at 24a. In denying the
Zoning Permit Application, Plainfield Township’s Zoning Officer advised
Intervenors that their proposed deck project would require a dimensional variance.
See Trial Court Opinion at 2; see also Zoning Permit Application, R.R. at 8a; Zoning
Denial Letter, R.R. at 24a.
             Following the denial, Intervenors filed with the Board a request for a
dimensional variance from the rear-yard setback to allow for the construction of the
proposed deck. See Application for Hearing and Request for Variance dated July 8,
2018 (Variance Application), R.R. at 26a-31a. The Board held hearings on the
Variance Application on September 11, 2018 and October 4, 2018. See Notes of
Testimony dated September 11, 2018 (N.T. 9/11/2018); Notes of Testimony dated
October 4, 2018 (N.T. 10/4/2018). On November 15, 2018, the Board granted the
Variance Application.     See Board Opinion dated November 15, 2018 (Board
Opinion). In its written opinion, the Board concluded that the dimensions of
Intervenors’ lot created a hardship relative to the Property that justifies relief, the
proposed 18.3-foot intrusion into the rear-yard setback presents no detrimental effect
to the surrounding properties and will not have a detrimental effect on the


                                          2
neighborhood, and the grant of the requested dimensional variance will be the
minimum variance to afford relief. See Board Opinion at 9.
                Appellant appealed to the Trial Court, arguing that the Board
committed an error of law and an abuse of discretion in granting the Variance
Application. See Notice of Appeal, R.R. at 114a-15a.1 Without taking additional

      1
          The Notice of Appeal stated six separate contentions of Board error as follows:

                        The grant of the variance by the Zoning Hearing Board of
                the Township of Plainfield was arbitrary, capricious, an abuse of
                discretion, and contrary to the law in that:

                       A. There was an absence of legally sufficient
                       testimony concerning the existence of a hardship.

                       B. There was an absence of any testimony that the
                       property could not be developed in strict conformity
                       to the ordinance without the grant of a variance.

                       C. There was an absence of any testimony a variance
                       was necessary to enable the reasonable use of the
                       property when in fact a reasonable use of the
                       property was already being made by the applicants.

                       D. The Board failed to conclude that the alleged
                       hardship was in fact created by the [Intervenors] in
                       that they chose to build such a large addition to their
                       home causing there to be insufficient space to tack
                       on the additional structures such as a roofed deck,
                       patio and the steps without the need for a variance.

                       E. The Board failed to conclude that the proposed
                       size of this home together with the roofed deck was
                       out of character with the immediate homes in the
                       neighborhood.

                       F. There was insufficient evidence before the Board
                       for it to conclude that the variance was the minimum
                       variance necessary to afford relief and represented
                       the least modification of the regulation in issue.



                                                 3
testimony or evidence, on June 7, 2019, the Trial Court entered its opinion and order
affirming the Board. See Trial Court Opinion at 11-12 & Order of Court. Appellant
timely appealed to this Court.
                On appeal to this Court,2 Appellant argues that the Trial Court erred in
affirming the Board because Appellant claims the Board committed an error of law
and abused its discretion in granting the Variance Application. See Appellant’s Brief
at 3 & 8-22. Specifically, Appellant claims the Board erred because: (1) the
Property was not unique; (2) a variance was not necessary to make a reasonable use
of the Property; (3) Intervenors created the alleged hardship; (4) the variance would
be out of character with the existing neighborhood and detrimental to adjacent
landowners; (5) the evidence was insufficient to prove that the requested variance
was the minimum relief necessary; and (6) the Board applied inappropriate standards
in making its determination on the Variance Application. Id.
                As this Court has explained, “[a] variance is an extraordinary exception
and should be granted sparingly[.]” Heisterkamp v. Zoning Hearing Bd. of City of
Lancaster, 383 A.2d 1311, 1314 (Pa. Cmwlth. 1978).                         The Pennsylvania
Municipalities Planning Code3 (MPC) provides that a zoning hearing board may



Notice of Appeal at 2, R.R. at 115a. In her brief to the Trial Court, Appellant distilled these
complaints to present the following single question: “Did the Zoning Hearing Board commit an
error of law and abuse its discretion in granting the rear setback variance?” Trial Court Opinion
at 5.
       2
         Where, as here, the trial court does not take additional evidence, our scope of review is
limited to determining whether the Board committed an error of law or “a manifest abuse of
discretion.” Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 639 (Pa. 1983).
A zoning board abuses its discretion “only if its findings are not supported by substantial
evidence.” Id. at 640.
       3
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101–11202.

                                                4
grant a requested variance where it finds that an applicant has established the
following conditions:

            (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 of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53
P.S. § 10910.2(a).




                                         5
             Where, as here, we are faced with a dimensional variance as opposed
to a use variance, our Supreme Court has articulated a more relaxed standard for
granting a variance requiring a lesser quantum of proof. Under this relaxed standard,
when addressing the element of unnecessary hardship, “[c]ourts 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 v. Zoning Board of Adjustment of City
of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998). However, “[a] variance, whether labeled
dimensional or use, is appropriate only where the property, not the person, is subject
to hardship.” Yeager v. Zoning Hearing Bd. of Allentown, 779 A.2d 595, 598 (Pa.
Cmwlth. 2001) (quoting Szmigiel v. Kranker, 298 A.2d 629, 631 (Pa. Cmwlth.
1972)) (emphasis in original). Further, a conflict between dimensional zoning
requirements and a landowner’s personal preference regarding property use alone
does not create a hardship meriting a variance. Yeager, 779 A.2d at 598 (denial of
dimensional variance affirmed where appellant proved “nothing more than that
adherence to the [applicable zoning] ordinance imposes a burden on his personal
desire to sell vehicles for [a specific automaker]”).
             Additionally, in zoning matters, “determinations as to the credibility of
witnesses and the weight to be given to evidence are matters left solely to the [Board]
in the performance of its factfinding role.” Pennsy Supply, Inc. v. Zoning Hearing
Bd. of Dorrance Twp., 987 A.2d 1243, 1248 (Pa. Cmwlth. 2009) (internal brackets
omitted). Further, “the Board has the power to reject even uncontradicted testimony
if it finds it lacking in credibility[.]” Lower Allen Citizens Action Grp., Inc. v. Lower
Allen Twp. Zoning Hearing Bd., 500 A.2d 1253, 1258 (Pa. Cmwlth. 1985).


                                           6
Moreover, the determination of whether an applicant adduces evidence sufficient to
allow a zoning hearing board to grant a dimensional variance is the function of the
zoning hearing board and will not be overturned on appeal unless it is not supported
by substantial evidence. In re Towamencin Twp., 42 A.3d 366, 370 (Pa. Cmwlth.
2012).
             At the September 11, 2018 hearing in this matter, Intervenors’ attorney
explained to the Board that the dimensional variance sought by Intervenors for the
construction of the proposed deck and stairway amounted to an 18-foot intrusion
into a 50-foot rear-yard setback, leaving 32 feet of setback to the rear lot line. N.T.
9/11/2018 at 14, 17. Additionally, Adam Pooler, the general contractor hired by
Intervenors to construct an addition to their home as well as the proposed new deck,
testified at the hearing. Pooler testified that the Property’s lot is a preexisting half-
acre lot that would not have been allowed under current zoning regulations. N.T.
9/11/2018 at 5-6 & 10. He acknowledged the Property’s rear yard 50-foot setback
per the zoning requirements. Id. at 7. Pooler explained that the house addition would
not encroach at all into the rear-yard setback, but confirmed an 18-foot setback
encroachment that would result from construction of the proposed deck. Id. at 7-8.
Pooler testified that the rear yard of the Property abuts a 130-acre farm. Id. at 7.
Pooler further explained that a previous deck and an above-ground pool had been
removed to make way for the proposed new deck, and that the previous deck and
pool had encroached into the rear-yard setback. Id. at 9-10.
             Pooler also testified that, given the physical constraints and the size of
the Property’s lot, Intervenors cannot comply with the rear-yard setback and still
construct the current deck design, which Pooler felt represents the minimum design
size possible for the deck to be functional. N.T. 9/11/2018 at 10-11. Regarding


                                           7
whether the requested variance would alter the essential character of the
neighborhood, Pooler explained:

              Only for the better, in my opinion, updating the house. It’s
              definitely going to be a lot more curb appeal and we’re
              going out to the back where really the only neighboring
              property would be to the right and to the left. I don’t see
              how that could negatively impact them.

N.T. 9/11/2018 at 10.
              Appellant’s son, Jeffrey Kneebone, also gave testimony before the
Board on September 11, 2018. Jeffrey Kneebone read into the record a statement
from his mother, Appellant, who owns the home/property adjacent to the Property.
See N.T. at 26-28.        In her statement, Appellant explained that she felt that
Intervenors’ proposed addition and deck beyond the 50-foot setback would be too
large and intrusive to her property, and that the addition and deck would change the
nature of her home, her backyard, and the backyards of other current residents. Id.
at 27-28.
              When the hearing resumed on October 4, 2018,4 Intervenors’ attorney
explained that a completed survey of the Property had revealed that Intervenors’
proposed deck and stairs were to be located 31.7 feet from the rear-yard setback.
N.T. 10/4/2018 at 4. Counsel reminded the Board that the primary addition of the
house is located within a building envelope that does not encroach on the 50-foot
setback, that only the proposed deck will encroach on the setback, and that the land
situated behind the Property is a large farm. Id. at 5-6.

       4
         On September 11, 2018, the Board continued the hearing until October 4, 2018 to allow
Intervenors to have a survey of the Property done to address certain of Jeffrey Kneebone’s
concerns regarding the accuracy of the contractor’s design drawings. N.T. 9/11/2018 at 33.

                                              8
            Pooler also testified on October 4, 2018, and again explained that the
proposed new deck is to be constructed on the location where a deck and an above-
ground pool were previously situated. N.T. 10/4/2018 at 7 & 15-16.
            Jeffrey Kneebone appeared again on October 4, 2018 on behalf of his
mother and explained once more that his mother’s objection was that Intervenors’
house would be too large with the addition and the deck. N.T. 10/4/2018 at 12-15.
            In addition to the testimony, the Board also accepted into evidence a
deed to the Property, multiple photographs depicting the Property and the extent of
the proposed addition and new deck, and a topographical survey of the Property
prepared by Intervenors’ contractor. See Hearing Exhibits A-1 through A-7, R.R. at
94a-102a.
            Based on this evidence, the Board made the following pertinent factual
findings and conclusions of law:

            55. The Board finds after review of the matter, that due to
            the undersized dimensions of the lot, compliance with the
            dimensional requirements for setbacks create a hardship,
            relative to this property.

            56. The Board further finds that an 18.3’ intrusion into the
            rear[-]yard setback, when the property immediately
            behind the subject property is a 130-acre farm, presents no
            detrimental effect to the surrounding properties.

            57. It is noted that the immediate neighbor to the subject
            property testified against the proposed additions to the
            subject dwelling; however most of the improvements
            objected to are within the allowed building envelope; and
            it is only the rear deck and rear patio that is the subject of
            tonight’s application.

            58. The Board finds that the allowance of the rear deck and
            patio will not have a detrimental effect on the
                                          9
            neighborhood by the intrusion into the rear[-]yard setback
            by 18.3’.

            59. The Board finds that the unique physical
            characteristics of having open farmland directly behind the
            property, coupled with the fact that the lot in question is a
            small lot of record in the Farm and Forrest District, are
            sufficient[,] unique characteristics to justify relief.

            60. Lastly, the Board finds that the variance, if authorized,
            will not be detrimental to the neighborhood, and will be
            the minimum variance to afford relief.

Board Opinion at 9.
            On appeal, the Trial Court reviewed the record and the determined that
the Board did not abuse its discretion and that the Board’s conclusions were
supported by substantial evidence. See Trial Court Opinion at 11. The Trial Court
found:

                   The Board concluded that Intervenors have
            established that unique physical circumstances or
            conditions exist with respect to the Property. Specifically,
            the exhibits and testimony revealed that open farmland
            exists directly behind the Property, and also that the
            Property’s lot is undersized which creates a hardship. The
            Board heard testimony that this hardship is due to the pre-
            existing dimensions of the Property. The Board made a
            specific finding that the proposed encroaching structure
            will be located in the center of the Property and that it
            meets the side[-]yard setbacks of the Ordinance. Also, the
            Board specifically found that there are no adjacent
            buildings or dwellings located in the immediate area
            behind Intervenors’ property. The only improvements that
            would create any intrusion into the rear[-]yard setback are
            the rear deck and rear patio, and the Board concluded that
            this 18.3’ intrusion presents no detrimental effect to the
            surrounding properties.

                                         10
                    The testimony presented to the Board, which
             supports these conclusions, includes testimony from Mr.
             Pooler that the setback requirements could not be met
             because of the existing location of the house on the lot and
             because there is limited available space to the rear of the
             lot. Also, Mr. Pooler opined in his testimony that because
             the land behind the Property is all open farmland, the
             intrusion into the rear[-]yard setback by approximately
             eighteen feet (18’) would not be detrimental to the
             neighborhood, nor adversely affect any surrounding
             properties. In addition, Mr. Pooler stated that the variance,
             if granted, would be the minimum variance to afford relief.

Trial Court Opinion at 10-11 (internal citations omitted). Ultimately, the Trial Court
determined that “the Board’s decision to grant a dimensional variance to the
Intervenors was soundly based upon substantial evidence which supports the
conclusions of the Board.” Id. at 11.
             After our own review of the record and the evidence presented, we do
not agree with the Trial Court’s assessment that substantial evidence supports the
Board’s conclusions. Specifically, we do not agree that Pooler’s testimony – the
only evidence of hardship put forth by Intervenors – established that the size and
configuration of the Property created a hardship requiring the granting of a
dimensional variance to allow Intervenors to enjoy reasonable use of the Property.
At best, Pooler’s testimony established that Intervenors’ lot was small compared to
other lots in the area or lots that would be allowed under current zoning provisions.
While Pooler’s testimony evidences Intervenors’ preference to build a deck of a
certain size, it does not represent substantial evidence of a hardship requiring a
variance to build to Intervenors’ preferences. Some lots are smaller than others.
Owning the smallest lot in a development does not, in itself, create a hardship


                                          11
triggering an automatic right of a landowner to a variance to encroach upon setbacks
established by local zoning. Coupling a small lot with an owner’s preference for a
deck larger than what local zoning permits does not transform a small lot into one
burdened by a hardship. Likewise, Pooler’s testimony that the new deck design
represented the minimum design size possible for the deck to be functional, or that
the requested variance represented the minimum variance to afford Intervenors relief
with the least possible modification of the existing setback requirement, does not
convert Intervenors’ preference into a hardship or substantial evidence thereof. See
Section 910.2 of the MPC, 53 P.S. § 10910.2(a); Hertzberg; Yeager. Accordingly,
we find the Board erred in granting the Variance Application, and the Trial Court in
turn erred in affirming the Board.
             For these reasons, we reverse the Trial Court’s order.




                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ruth L. Kneebone,                     :
                    Appellant         :
                                      :
            v.                        :
                                      :
Zoning Hearing Board of the           :
Township of Plainfield and            :   No. 807 C.D. 2019
Patrick Lutz and Pamela Lutz          :


                                 ORDER


            AND NOW, this 9th day of July, 2020, the June 7, 2019 order of the
Court of Common Pleas of Northampton County is REVERSED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
