           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mariano Tancredi,                             :
                            Appellant         :
                                              :
                     v.                       :    No. 1599 C.D. 2014
                                              :    Argued: October 6, 2015
The Zoning Hearing Board of                   :
Lower Milford Township                        :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY SENIOR
JUDGE LEADBETTER                                                 FILED: September 8, 2016


              Appellant Mariano Tancredi (Appellant or Property Owner) appeals
from an order of the Court of Common Pleas of Lehigh County (common pleas)
that affirmed an order of the Lower Milford Township Zoning Hearing Board
(ZHB) denying his application for variances from certain requirements of the
Lower Milford Township Zoning Ordinance of 2009 (Ordinance).                      Appellant
sought the variances in order to build an access driveway along an easement
leading to his property. We reverse.2

    1
      This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
    2
      Although the case was argued before a panel of this Court on October 6, 2015, by order
dated October 13, 2015, the matter was held in abeyance pending mediation. Because the parties
(Footnote continued on next page…)
               The facts of this matter are relatively straightforward. Appellant is the
owner since 2003 of a 12.93-acre property located in the Resource Conservation
Zoning District of Lower Milford Township, Lehigh County. The property is
wooded and undeveloped and is without access to a public road except by way of
an easement over the property of Appellant’s neighbor.3                     The easement is
approximately 400-feet long and fifteen-feet wide and was conferred by
Appellant’s neighbor’s predecessor-in-title. The easement is bounded on one side
by the property line between the owner of the easement and an adjoining property
owner. In other words, the easement runs parallel to the property line of the lot on
which the easement is located and extends from the public road to the back end of
the Property.
               The Property Owner submitted an application for a driveway permit to
the Township. In response, the Township’s Building Code Official sent a letter to
the Property Owner, rejecting the application and noting that before the Property
Owner resubmitted the application he would have to obtain zoning relief relating to
(1) set-backs required by Section 1301F.2 of the Township’s Zoning Ordinance

_____________________________
(continued…)
were unable to reach a timely resolution of the matter in mediation, we vacated our October 13,
2015, order and, on February 9, 2016, directed the Chief Clerk to assign this matter for
disposition. We note that, prior to argument, this Court directed the parties to be prepared to
address a question that they failed to brief, viz., whether the lower court’s order should be
affirmed based on the fact that, under the relevant zoning ordinance, an access driveway is solely
for access to either a dwelling unit, commercial unit or industrial unit, none of which are
involved herein. Nevertheless, after further review, we are satisfied that this case may be
decided on the ground of Appellant’s entitlement to a validity variance, an issue he both raised
and preserved below.
     3
       This neighbor is Mary Ann Wilson, who acknowledged that she bought the property in
1996 with the easement in place. Notes of Testimony (N.T.), Testimony of Mary Ann Wilson,
ZHB Hearing dated December 4, 2013, at 31.



                                                2
(Ordinance) and (2) woodland disturbances under Section 1004 of the Ordinance.
The Property Owner, in apparent belief that the Building Official correctly
concluded that he was required to obtain variance relief from both of these
provisions, submitted to the ZHB variance requests, seeking relief from these two
Ordinance provisions. The Property Owner indicated that the reason he wanted to
construct the driveway was so he could build a single-family home, but he did not
submit any plans or proposals for the construction of a dwelling.
             The ZHB conducted a hearing on the variance requests and issued a
decision denying the Property Owner’s requests. The ZHB addressed only the
Property Owner’s request for a variance from the set-back requirements of Section
1301.F.2 of the Ordinance, which relates to “Off-Street Parking in Required
Yards” and provides:
             The following standards shall apply except where
             modified subject to conditional use approval by the
             Board of Supervisors:
             2. . . . . [A]ll parking areas and access drives . . . shall be
             set back at least five (5) feet from any lot lines.

Section 1301.F.2 of the Ordinance. The Ordinance defines a “lot line” to mean
“[a]ny property boundary or a lot line dividing one lot from another.” Section 201
of the Ordinance. The ZHB concluded that “[s]ince there are two separate adjacent
properties (including the easement) Section 1301.F.2 requires that the access drive
have a 5 foot set back from each property line.” (Emphasis added.) In other
words, in interpreting the Ordinance, the ZHB reasoned, without explanation, that
the easement created a separate lot line in addition to the lot line that separates the
two adjoining properties, and that, therefore, the Ordinance required set-backs
from either edge of the easement. The Property Owner apparently never disputed
this rationale. The ZHB noted the criteria for the grant of a variance and expressed


                                           3
specific concern with the fact that the Property Owner did not submit plans to
construct a dwelling on the Property. The ZHB concluded that the Property Owner
failed to satisfy his burden to show a hardship and that the requested variance was
the minimum variance that would afford relief.
               The Property Owner appealed the ZHB’s decision to the trial court,
which affirmed the ZHB’s decision without taking additional evidence, confirming
the ZHB’s reasoning and reliance upon the fact that the Property Owner did not
submit a proposal for the development of the Property for a dwelling.
Additionally, the trial court rejected the Property Owner’s claim that the ZHB
erred by failing to address his request for a variance for the removal of trees from
the easement.4 The trial court opined that because the Property Owner failed to
demonstrate a right to an access driveway, the trial court did not need to address
the tree-removal variance. The trial court also concluded that even if it was
required to resolve that issue, the Property Owner failed to satisfy his burden to
prove that an unnecessary hardship would result from the denial of the variance.
               The Property Owner appealed to this Court,5 raising the following
claims and/or issues: (1) the Ordinance does not require the Property Owner to
obtain a variance from Section 1004 of the Ordinance; and (2) the trial court erred
in concluding that the ZHB properly denied the variance application.



    4
       The terms of the easement provide the Property Owner with the right of ingress and egress
to the Property (Reproduced Record at 28a).
     5
       Where a trial court takes no additional evidence in an appeal from a zoning hearing board’s
denial of a variance, our review is limited to considering whether the zoning hearing board erred
as a matter of law and whether substantial evidence supports all of the zoning hearing board’s
necessary factual findings. McGonigle v. Lower Heidelberg Twp. Zoning Hearing Bd., 858 A.2d
663, 668 n.4 (Pa. Cmwlth. 2004).



                                                4
               On appeal to this Court, Appellant first argues that the trial court erred
in concluding that, in order to build the sought-after access driveway, he was
required to obtain a variance from Article X, Section 1004 of the Ordinance
limiting woodland disturbance and requiring replacement of vegetation. In this
regard, Appellant contends that, given the size of the easement, the area from
which the trees are to be removed does not constitute “woodland(s)” as defined in
the Ordinance and, similarly, removal of the trees does not constitute “clear-
cutting” as also defined in the Ordinance.6 Appellant also asserts that, given the
size of the proposed driveway, including the setback requirements, there is no
remaining space for replacement of vegetation. Because, however, Appellant did
not raise before the ZHB the issue of whether Article X, Section 1004 applies
herein, he may not raise it under the circumstances now presented. See Myers v.
State College Zoning Hearing Bd., 530 A.2d 526, 527-28 (Pa. Cmwlth. 1987)
(providing that, unless permitted by the court on due cause shown, an appellant
may not on appeal raise any issue not previously raised before the ZHB).7
               Thus, the sole issue we must address is whether the trial court erred in
concluding that the ZHB’s denial of Appellant’s variance requests was not contrary
to law.




    6
       Specifically, Appellant asserts that “woodland(s)” must encompass one-quarter acre or
more pursuant to Article II, Section 201 of the Ordinance, and the easement containing the trees
at issue is not quite that big. Ordinance sec. 201 at II-34. Moreover, because “clear-cutting”
involves one half of an acre, and the easement is not that large, Appellant further argues that the
proposed removal of all of the trees in the easement is not clear-cutting and therefore also not
subject to the requirements of Article X, Section 1004. Id. at II-6.
     7
       Appellant raised the issue in his appeal to the trial court, but common pleas did not address
it.



                                                 5
                Although not artfully set forth, by arguing that the ZHB decision
denying his variance requests amounts to an unjust taking of his property,
Appellant essentially argues that he is entitled to a validity variance. “A validity
variance ‘is based on the theory that an otherwise valid ordinance is confiscatory
when applied to a particular tract of land, in that it deprives the owner of any
reasonable use of his property.’”           Laurel Point Assocs. v. Susquehanna Twp.
Zoning Hearing Bd., 887 A.2d 796, 800 (Pa. Cmwlth. 2005). (quotation omitted).
Furthermore, the issuance of a validity variance is required to allow a reasonable
use of the applicant’s land, thus preventing an unconstitutional taking of his
property.       Id.   “In other words, a validity variance request is asserted in
circumstances that essentially merit a zoning amendment.”                   Hunt v. Zoning
Hearing Bd. of Conewago Twp., 61 A.3d 380, 384 (Pa. Cmwlth. 2013).
                As further noted in Hunt and Laurel Point, one who applies for a
validity variance is required to prove that the regulation is confiscatory because it
precludes the owner from using his property. Hunt, 61 A.3d at 384; Laurel Point,
887 A.2d at 801. Generally, one who applies for a validity variance must further
comply with the variance requirements found in Section 910.2(a) of the
Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by
section 89 of the Act of December 21, 1988, P.L. 1329, as amended, 53 P.S. §
10910.2(a).8 Nonetheless, an applicant for a validity variance is not required to

    8
        Section 910.2 of the MPC, 53 P.S. § 10910.2, provides:
             (a) The board shall hear requests for variances where it is alleged
             that the provisions of the zoning ordinance inflict unnecessary
             hardship upon the applicant. The board may by rule prescribe the
             form of application and may require preliminary application to the
             zoning officer. The board may grant a variance, provided that all of
             the following findings are made where relevant in a given case:
(Footnote continued on next page…)


                                                6
   satisfy every element in every case. Hunt, 61 A.3d at 384; Laurel Point, 887 A.2d
   at 801. Instead, the ZHB must render findings on the variance criteria where those
   findings are “relevant.” Hunt, id.; Laurel Point, id.; see also 53 P.S. § 10910.2(a).
   In this regard, we have explained that, with respect to validity variances, actuality
   of the confiscation is key, and the confiscation is the unnecessary hardship. Hunt,
   id.; Laurel Point; id.9

   _____________________________
   (continued…)
                        (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
                condition, 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 appellant.
                        (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.
See also Article XIV, Section 1404 of the Ordinance relating to variances.
        9
           We note that even with respect to garden variety variances, our Supreme Court has
   clarified that, in establishing a hardship, the applicant “is not required to show that the property
   at issue is valueless without the variance or that the property cannot be used for any permitted
   purpose.” Marshall v. City of Phila. and Zoning Bd. of Adjustment, 97 A.3d 323, 330 (Pa. 2014)
   (emphasis in original).



                                                    7
            Here, it is clear that in order to make any use of his property the
Property Owner must have meaningful access and that he does not. He testified:
            Well, the previous owner was using it for hunting. I
            thought I was going to get into hunting, but never did.
            Every time he had to go to his property, he had to ask
            permission to Mrs. Wilson because it’s impossible to just
            walk through those trees. So the only access, if Mrs.
            Wilson lets you walk on her property to get back there
            because there is no access and that was an issue. [sic]
            The very few times I went there, I just wouldn’t go
            because, you know, if I went there and she’s not home, it
            would be a trip wasted…. Right now I have no access at
            all. There is no way for me to get in there, other than a
            helicopter and a parachute.
Notes of Testimony (N.T.), ZHB Hearing dated December 4, 2013, at 39, 40. This
testimony was not contradicted. Indeed, Ms. Wilson testified that Tancredi had
accessed his property by “walk[ing] up against my paddock line, so you have never
been kept out.” Id. at 40-41. Even if the easement was to allow some access on
foot, which evidently is not feasible, such access would hardly be meaningful if
one cannot reach the property in any sort of motor vehicle.
            In spite of this, the ZHB did not grant Appellant’s variance
application because it essentially determined that Appellant had created his own
hardship. In this regard, the ZHB reasoned that “Applicant purchased the property
without access to a public road and acknowledged at [the] hearing that he has used
the landlocked property for hunting and recreation only.” ZHB op. at 4. Aside
from the fact that Appellant did not acknowledge (and the record does not support)
any such hunting and recreation use, it is undisputed that the property was
burdened by a lack of genuine ability to be accessed and, therefore used, long




                                         8
before it was purchased by Appellant.10 Accordingly, he did nothing to create the
hardship. See Solebury Twp. v. Solebury Twp. Zoning Hearing Bd., 914 A.2d 972,
977 (Pa. Cmwlth. 2007) (holding that purchase of property did not create a self-
inflicted hardship forcing owners to seek variances where owners sought them to
overcome hardships present from the property’s topography and location near a
historic district).
              In addition, the testimony reflects that clearing the easement to build a
driveway is the minimum variance needed to allow use of the property. Zoning
Officer Richard Kinsey testified that he “[doesn’t] see a way to put in a 10-foot
wide driveway without disturbing almost every tree there.” N.T., ZHB Hearing
dated December 4, 2013, at 14. He further stated that “there is no way you could
comply with our Zoning Ordinance the way it is written when it comes to these
woodlands” and that, with respect to the variance requests, the Township has no
position in the matter. Id. at 39. The ZHB found that Appellant’s property is
“undeveloped and wooded,” ZHB op. at 1, Finding of Fact No. 4, and that, “to
install a driveway, applicant must clear all of the woodlands in the easement area
requiring a variance from Article X, Section 1004, limiting woodland disturbance
and [requiring] vegetative replacement.” Id. at 2, Finding of Fact No. 10.
              Here, the ZHB’s conclusion that Appellant failed to meet his burden is
contrary to law where the record inexorably establishes that: (1) Appellant’s
property was landlocked but for the easement he obviously had the right to use; (2)
Appellant could not reasonably use his property without the requested variances;


    10
       The testimony reflected that the property became landlocked many years earlier when the
Northeast Extension of the Pennsylvania Turnpike was built, and at this time the easements were
created.



                                              9
(3) Appellant did not create the hardship in this case; (4) the variances Appellant
sought in order to build the access driveway are the minimum variances necessary
to afford relief.
              This Court long ago stated that
              the vital importance of a landowner’s property
              right in an easement of access for ingress and
              regress . . . where his land is otherwise landlocked,
              is too obvious for discussion. . . . [T]he denial of
              the right to use it can result in the deprivation of
              every property right and use that attaches to his
              real property ownership.
Taged, Inc. v. Zoning Bd. of Adjustment of Borough of Monroeville, 276 A.2d 845,
849 (Pa. Cmwlth. 1971).
              Because the key to proving entitlement to a validity variance is the
actuality of confiscation, and Appellant is deprived of the reasonable use of his
property absent the variances he seeks, the ZHB on this record clearly erred in
denying Appellant’s variance requests. Common pleas wrongly held otherwise
and, accordingly, we reverse.



                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge


Judge Cohn Jubelirer did not participate in this decision.




                                          10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mariano Tancredi,                       :
                         Appellant      :
                                        :
                    v.                  :   No. 1599 C.D. 2014
                                        :
The Zoning Hearing Board of             :
Lower Milford Township                  :


                                     ORDER


           AND NOW, this 8th day of September, 2016, the order of the Court of
Common Pleas of Lehigh County is hereby REVERSED.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mariano Tancredi,                       :
                         Appellant      :
                                        :
            v.                          :   No. 1599 C.D. 2014
                                        :   Argued: October 6, 2015
The Zoning Hearing Board of             :
Lower Milford Township                  :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE BROBSON                            FILED: September 8, 2016


            Appellant Mariano Tancredi (Property Owner) sought a dimensional
variance to clear-cut all trees within the existing ingress/egress easement for his
property in order to construct an access driveway through the easement for
vehicular access to his property. As reflected in the record, there has never been
such vehicular access to the property. This was the case at the time Property
Owner purchased the property in 2003, and it was the case at the time Property
Owner sought a driveway permit from Lower Milford Township, Lehigh County,
Pennsylvania (Township), in 2013.
            The Lower Milford Township Zoning Hearing Board (ZHB) denied
Property Owner’s variance request, concluding that Property Owner “did not
present enough information to the Board to meet his burden, not only to show
hardship, but that the variance, if granted, would represent the minimum variance
that would afford relief.” (ZHB Decision at 5, Reproduced Record (R.R.) 100a.)
Unlike the majority, I find no error with the ZHB’s conclusion or the Court of
Common Pleas of Lehigh County’s affirmance. I also respectfully disagree with
the majority’s conclusion that this denial deprived Petitioner of any reasonable use
of his property, such that a validity variance is warranted. There is no basis in fact
or law to conclude that, in order to have reasonable use of his property, Property
Owner must be allowed to clear-cut the entire easement area to construct an access
driveway for motor vehicles.
              An applicant for a variance must show, among other things, that the
requested variance “is necessary to enable the reasonable use of the property.”
Section 910.2(a) of the Municipalities Planning Code (MPC) (emphasis added).1
The property consists of 12.93 undeveloped and wooded acres within the
Township’s Resource Conservation Zoning District.2 It is as it was when Property
Owner purchased it. Ten years after purchasing the property, Property Owner
sought permission from the Township to build an access driveway through the
easement to the property so he could access the property by motor vehicle. He did
not propose to develop the property in any way. Due to the dimensions and
wooded nature of the easement area, however, Property Owner cannot construct an
access driveway in strict conformity with the Ordinance, particularly the woodland
disturbance restrictions set forth in Section 1004 of the Ordinance.


       1
         Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L 1329,
53 P.S. § 10910.2(a). See also Section 1404 of the Milford Township Zoning Ordinance
(Ordinance).
       2
         Permitted uses within the Resource Conservation Zoning District include such uses as
agriculture, woodlands conservation, forestry, commercial greenhouse, and single-family
detached dwelling. Section 401 of the Ordinance.



                                          PKB-2
            I agree with the majority that there appears to be enough evidence in
the record to support a finding that the easement area is so wooded and so
overgrown that Property Owner has virtually, if not actually, no access to the
property. The absence of any current access through the easement area, however,
does not compel the conclusion that the ZHB must, as a matter of law, grant a
variance to Property Owner to clear-cut the entire easement area to allow his
preferred form of access to the property—i.e., by motor vehicle. Baked into the
majority’s analysis is a presumption that every property owner must have access to
his property by motor vehicle regardless of the current use or condition of the
property and in the absence of any proposed alternative use. Under the majority’s
analysis, where the access driveway cannot be constructed in strict conformity with
the local zoning ordinance, the property owner need not show necessity for an
access driveway and a hardship to secure a variance. Respectfully, I cannot agree
with the majority’s view.
            Under prevailing law, to satisfy his burden of proof, Property Owner
had to establish that the access driveway is “necessary” to enable his “reasonable
use” of the property. There is simply a dearth of evidence in the record to show
that Property Owner must secure motor vehicle access to his property in order to
“use” the property in its current, undeveloped state.     In the absence of such
evidence, I cannot support the majority’s decision to set aside the woodland
disturbance restrictions of the Ordinance and authorize the clear-cutting of the
entire easement area for purposes of creating a driveway to access Property
Owner’s undeveloped parcel of land by motor vehicle. Cf. In re Private Road in
Speers Borough, II, Washington Cnty., 11 A.3d 902, 906 (Pa. 2011) (holding that




                                      PKB-3
under Private Road Act,3 board of view may consider other means of access,
including waterways, to property to determine necessity of requested private road).
               I agree with Property Owner that he is entitled to “use his property for
whatever use that is permitted by the current Zoning Ordinance.” (Pet’r Br. at 29.)
Even in its undeveloped state, Petitioner has a right of ingress to and egress from
the property through the easement. This case, however, is not about a right of
access, it is about Property Owner’s desired method of access. Property Owner’s
desire to construct an access driveway for motor vehicle access to the property is
plain. There is nothing in the record, however, to indicate that Property Owner
requires motor vehicle access. The majority, however, presumes this to be the
case. Moreover, there is nothing in the record to indicate that Property Owner is
unable to reduce/thin the trees and brush within the easement area in strict
conformity with the Ordinance (or with some form of variance less than a
clear-cutting of the entire easement area) so as to provide alternative, but
nonetheless reasonable, access to his undeveloped property. I, therefore, find no
error with the ZHB’s conclusion that Property Owner failed to meet his burden
and/or failed to seek the minimum variance that would afford relief.
               I note that the ZHB left open the possibility that Property Owner may
be entitled to the variance he seeks to construct an access driveway if he decides to
develop the parcel for a use authorized under the Ordinance: “Applicant did not
submit any plans for where he will place a proposed single family home and
whether those plans meet the requirements of the zoning ordinance, which would
make the need for a driveway more compelling.” (ZHB Decision at 4, R.R. 99a

      3
          Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §§ 1781-2891.



                                            PKB-4
(emphasis added).)    Section 201 of the Ordinance defines the term “access
driveway” to mean “[a] privately owned, constructed, and maintained vehicular
access from a street or access drive to one dwelling unit, commercial unit, or
industrial unit.” Section 201 of the Ordinance (Definitions) (emphasis added).
Clearly, at the time of application, the property did not have any improvements,
and, other than expressing a desire to construct a home on the property at some
indefinite time in the future, Property Owner had not proposed any improvements.
I agree with the ZHB’s assessment that if Property Owner seeks to alter the current
use of the Property (undeveloped woodlands) to another use permitted under the
Ordinance that necessitates access to the property by motor vehicle, he would have
a more compelling case for a dimensional variance.              Without such an
improvement, and in the absence of a showing that vehicular access is necessary
for the Property Owner to use and enjoy his property in its current undeveloped
state, the ZHB’s conclusion that the Property Owner did not demonstrate a
hardship or show necessity for an access driveway is reasonable.
            For these reasons, I would affirm the order of the Court of Common
Pleas of Lehigh County, which affirmed the ZHB’s decision denying Property
Owner’s request for variances.




                                 P. KEVIN BROBSON, Judge




                                      PKB-5
