             IN THE COMMONWEALTH COURT OF PENNSYLVANIA



In Re: Application of Sunflower                 :
Farm, LLC                                       : No. 815 C.D. 2016
                                                : Argued: December 15, 2016
Appeal of: Sunflower Farm, LLC                  :



BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED



MEMORANDUM OPINION
BY JUDGE WOJCIK                                               FILED: March 28, 2017


                Sunflower Farm, LLC (Applicant)1 appeals the order of the Bucks
County Court of Common Pleas (trial court) which affirmed the decision of the
Lower Makefield Township (Township) Zoning Hearing Board (Board) denying
its application for use and dimensional variances under the Township’s Zoning
Ordinance2 necessary to use the property as an equine hospital. We affirm.

       1
           Applicant is a Pennsylvania limited liability corporation with two members:
veterinarians Dr. Amy Bentz and Dr. Brad Holmsten. Bentz treats large animals such as horses
and is the corporation’s principal.

       2
           Section 200-97 of the Township’s Zoning Ordinance states:

                A. The Board shall hear requests for variances where it is alleged
                that the provisions of this chapter inflict unnecessary hardship on
(Footnote continued on next page…)
              Applicant is the equitable owner of the approximately 5-acre property
located on Mirror Lake Road in the Township’s R-1 Residential-Low Density
zoning district. The configuration of the property resembles a “fat T,” as it is
approximately 200 feet wide at the roadway frontage and opens to approximately


(continued…)

              the applicant. . . . The Board may grant a variance, provided that
              the following findings are made where relevant in a given case:

              (1) That there are unique physical circumstances or conditions,
              including irregularity . . . of lot size or shape . . . 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.

              (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 this chapter and the
              authorization of a variance is therefore necessary to enable the
              reasonable use of the property.

              (3) That such unnecessary hardship had 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 which will afford relief and the least modification
              possible of the regulation in issue.

See also Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,
1968, P.L. 805, added by Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2.


                                                2
400 feet in the rear, with a length of approximately 600 feet. The property was
acquired by the Township and housed the Satterthwaite Farmstead which consisted
of 6 structures including a 2-1/2 story single family house, several barns, and other
accessory buildings.     The Township subdivided the farm into its present
configuration. The property is adjacent to the Patterson Farm from which it was
subdivided, with primarily single-family homes in the surrounding properties.
             In 2003, the Township retained an architect who found that the
residence is in significant disrepair and that the Township would need to spend
$400,000.00 for exterior repairs with up to an additional $500,000.00 for structural
repairs to the house and other accessory structures. Based on the report, the
Township subdivided the property and listed it for sale in 2011, but no bids were
submitted. In 2012, the Township again listed the property for sale and Applicant
was the only bidder.     Applicant entered into an agreement of sale with the
Township to purchase the property on the condition that it restores the existing
residential structure and restores the other structures subject to a façade easement
approved by the Township.
             Applicant seeks to acquire the property to construct an equine
specialty care and hospital facility and submitted the application for use and
dimensional variances. Applicant proposes to convert the existing residence into
administrative and office space with a possible 550-foot addition and keep the
existing “bank” barn, but remove the other structures and replace them with four
barns and a new house at the rear of the property for Bentz and her family. The
bank barn will be used for storage. Bentz testified that the configuration of the
existing house is not conducive to current living standards because the rooms are
small and that its conversion to professional offices will be significantly less


                                         3
expensive than renovation for the residential use. Fifteen off-street parking spaces
will be in the rear of the building with an additional eight if necessary. The
Ordinance requires 123 off-street spaces for the proposed equine hospital,
professional offices, and house and Applicant needs a variance from this
requirement.3
               To the left of the existing driveway, Applicant will construct a
“mascot” barn of 900 square feet with 3 stalls that will house horses for
educational purposes and will be used to provide blood transfusions to critical care
horses. Applicant will construct a “colic” or “critical care” barn of approximately
4,320 square feet with 7 stalls, which will be used to treat severely ill horses
requiring constant care and supervision, and an “elective care” barn of 2,600
square feet and 18 stalls for the treatment of minor ailments and diagnostic
services. Applicant anticipates no more than 5 to 8 horses will be on the property
at any time, which requires a variance from the limit of 2 per five acres.4 As
proposed, the colic barn will have a side yard setback of 35 feet and the elective
barn will have a side yard of 25 feet. As a result, Applicant needs a dimensional
variance from the 50-foot setback requirement.5



       3
          Section 200-79.A.(16) states that minimum parking for a general business use is “one
off-street parking space for every 250 square feet of gross floor area,” and 200-79.A.(42) states
that minimum parking for a veterinary hospital use is “one off-street parking space for every 150
square feet of gross floor area.”

       4
         Section 200-69.A.(11)(b) states that “[n]o more than two livestock units shall be
permitted for every five acres of lot area.”

       5
          Section 200-69.A.(11)(c) states that “[a]ccessory structures for livestock housing or use
shall be located only in the side or rear yards and no closer than 50 feet to any property line.”


                                                4
                The new residence will be 1,800 square feet with an adjacent drive
through garage. The existing driveway will be expanded for access to the elective
care barn, the colic barn, and the residential garage. The existing and expanded
driveway will be constructed of traditional asphalt while the proposed parking lot
and residential driveway will consist of pervious materials.                   Due to the new
buildings and driveway, Applicant will increase the impervious surface coverage
of 28.74% which requires a variance from the Ordinance’s limit.6
                Applicant’s plans include the construction of 3 underground storm
water management facilities to address the retention of storm water on the property
due to the proposed structure and impervious coverage.                      The plans propose
discharge of any storm water into existing inlets along Mirror Lake Road.
                A landscape buffer of fencing and vegetation will be concentrated
along the southwest portion of the property to buffer vehicular lights to the
residences adjacent to the property. However a variance is required as it is less
than the buffer required by the Ordinance.7
                The facility will provide 24/7 care with 2 sets of staff working 12-
hour shifts, from 7:00 a.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m. The staff
will consist of Bentz, a veterinarian technician, 2 to 3 administrative staff and 8 to
14 barn staff.       The horses would be “hand walked,” based on their medical
condition and would remain in their stalls other than during the daily walks.

       6
           Section 200-19.A. limits impervious coverage on lots of more than 5 acres to 17%.

       7
         Section 200-73.C.(1) states that “[b]uffer shall be provided wherever a nonresidential
use abuts a residential use;” [t]he buffer shall be located on the nonresidential property and shall
be located along the side and/or rear property lines which abuts the residential use;” and shall
have a minimum width of 25 feet and the screened planted area shall be a minimum of 25 feet.



                                                 5
               The use of the property as a specialty equine medical facility is not a
permitted use in the R-1 zoning district.8 Applicant’s expert in land use planning,
Kenneth Amey, testified before the Board and confirmed that the proposed use
does not meet the specific definitions in the Ordinance. He testified that a general
veterinary hospital which focuses on small animals is permitted in commercial
zoning districts, but the equine medical care center use is not the same use and is


       8
          Section 200-15.A. states that the following uses are permitted in the Township’s R-1
zoning district:         (1) agriculture; (2) single-family detached dwelling; (3)
nursery/horticulture/greenhouse; (4) public recreational facility; and (5) uses and structures
accessory to permitted uses including livestock in residential areas and residential accessory
buildings and structures. Section 200-15.B. provides the following uses by special exception:
(1) cemetery; (2) golf course; (3) library or museum; (4) nursing home; (5) place of worship; (6)
public or private school; (7) utility; (8) riding stable; (9) bed-and-breakfast; (10) boarding; (11)
family day care home occupation; and (12) accessory office home occupation. Section 200-
15.C. provides the following conditional uses: (1) accessory farm business; (2) emergency
services; and (3) farmland preservation development.

                In turn, Section 200-68.A.(1) defines “agriculture” use as “[f]arming activities,
including tilling of the soil, raising of vegetable or food crops and raising of livestock, horses, or
poultry” and requires a minimum lot area of 5 acres; prohibits the storage of manure or other
dust-producing substances within 150 feet of any property line; requires that any building in
which farm animals are kept to be at least 150 feet from any adjoining lot line; and permits a
single-family detached dwelling provided that it meets the lot area and dimension requirements.

               Additionally, Section 200-68.A.(44) states:

               Veterinary hospital. A place where animals are given medical or
               surgical treatment. Boarding shall be prohibited except that
               animals or pets undergoing medical or surgical treatment if kept
               must be housed inside. Use of the facility for boarding is
               prohibited unless the use regulations for kennel are also met.

The veterinary hospital use is a permitted use in the C-1 Commercial-Neighborhood, C-2
Commercial-Highway Services, and C-3 General Business/Industrial zoning districts. The
veterinary hospital use is permitted by special exception in the O-R Office/Research zoning
district.


                                                  6
less intensive in noise and traffic and more outdoor-oriented. He stated that the
proposed use is more conducive to the property because of the prior general
agricultural and farming use. Applicant’s proposed use will focus more on the
surgical treatment and care of critically ill horses rather than a general veterinary
practice.
               Thomas Conoscenti and his wife Ellen, neighboring landowners
(Objectors), intervened before the Board.                 Mr. Conoscenti testified that the
property does not have unique physical characteristics warranting the proposed use
variance and that there is no proof that it could not be financially rehabilitated for
residential use. He described the general residential nature of the surrounding area
and noted the possible environmental, noise, and traffic impact on the property and
surrounding area if the proposed use is approved. He stated that the proposed use
is akin to a commercial business, which is not permitted in the R-1 district, and
presented evidence that all other large animal care facilities in Pennsylvania and
New Jersey are in isolated areas and not in close proximity to general residential
neighborhoods.9
               In disposing of the application, the Board noted that while Applicant
sought approval of several dimensional variances, the most significant request was
the use variance under Section 200-15 to use the property as an equine medical

       9
          The Board also noted that a number of other residents testified in opposition to the
application citing: (1) concerns of the adverse impact of the commercial use on the residential
character of the property and the surrounding properties; (2) concerns of increased impervious
surface coverage and any adverse impact on storm water drainage onto neighboring properties;
(3) concerns of vehicular traffic along existing streets and roads and vehicular access to and from
the property based on the location of the driveway; (4) lack of significant research into the
viability of rehabilitating the existing residential building and other structures for residential use;
and (5), in general, lack of evidence to support the grant of the variances. The Board also noted
that several residents testified in support of the application, but that they were in the minority.


                                                  7
care facility in a residential zoning district. Applicant relied on the irregular “T”
shape to establish the required unnecessary hardship.         However, the Board
explained that this shape was created by the Township by subdividing the parcel
from the surrounding farm property, which is all owned by the Township. As a
result, the purported hardship was self-inflicted by the current owner.
             The Board explained that “while the Applicant intends to use the
property in a manner that would be less intrusive and more comparable to the
current agricultural use, the proposed use of an equine medical center is
substantially similar to a general veterinary practice that is permitted in other
zoning districts.” Board 10/24/12 Decision at 18. The Board found that “[t]he
only distinction between a general veterinary practice and the Applicant’s
proposed equine medical center is the treatment of horses by the Applicant versus
the general medical care of small animals.” Id.
             The Board also explained that “[w]hile the costs to renovate and
repair the existing residential building may be high, the evidence presented by
Applicant . . . does not substantiate the granting of the requested variance.” Board
10/24/12 Decision at 18. The Board concluded that “[t]he property can be used in
accordance with the current zoning regulations,” and it “was not persuaded that the
property could not be renovated and subsequently used again as a residential
home.” Id.
             The Board expressed its “concerns that the proposed use with the
various medical barn structures was being ‘squeezed’ into a small parcel,
consisting of five acres.” Board 10/24/12 Decision at 19. The Board was also “not
persuaded that the proposed use is more akin to agricultural use than a general
business enterprise.” Id. As a result, the Board denied Applicant’s use variance


                                          8
request and denied the various dimensional variance requests as moot. Objectors
intervened in Landowner’s appeal in which the trial court affirmed the Board’s
decision.
               In the instant appeal of the trial court’s order,10 Landowner claims that
the Board erred in denying a use variance under Section 200-15 of the Township’s
Zoning Ordinance, and in denying an interpretation of or variances from the
additional relevant requirements of Sections 200-19, 200-69, 200-73, and 200-79
of the Zoning Ordinance. We disagree.
               Our review of the record and the relevant law leads us to conclude
that the Board did not err in determining that the proposed use is more like the
veterinary hospital use than the agriculture use provided in the Zoning Ordinance.
We defer to the Board’s interpretation of the Ordinance.

               [A] zoning hearing board is the entity charged with the
               interpretation and application of the zoning ordinance. It
               is well settled that a zoning hearing board’s interpretation
               of its own zoning ordinance is entitled to great weight
               and deference from a reviewing court. This principle is
               also codified in Section 1921(c)(8) of the Statutory
               Construction Act of 1972, 1 Pa. C.S. §1921(c)(8). The
       10
           In a land use appeal where the trial court does not take additional evidence, our review
is limited to determining whether the Board abused its discretion or committed an error of law.
Tidd v. Lower Saucon Township Zoning Hearing Board, 118 A.3d 1, 7 n.4 (Pa. Cmwlth. 2015).
Our review of the Board’s factual determinations is limited to determining whether the Board’s
findings are supported by substantial, record evidence. Nettleton v. Zoning Hearing Board of
Pittsburgh, 828 A.2d 1033, 1041 n.10 (Pa. 2003); Haas v. Zoning Board of Adjustment of
Philadelphia, 169 A.2d 287, 288 (Pa. 1961). The Board as factfinder is the sole judge of
credibility and evidentiary weight and has the power to reject even uncontradicted testimony.
Valley View Civic Association v. Zoning Board of Adjustment, 462 A.2d 637, 642 (Pa. 1983);
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807, 808-09 (Pa. Cmwlth.
2005). It is the function of the Board to weigh the evidence before it, and a reviewing court may
not substitute its interpretation of the evidence for that of a zoning hearing board. Id. Appellate
review of the Board’s findings of fact is limited to a substantial evidence analysis. Haas.


                                                9
               basis for the judicial deference is the knowledge and
               expertise that a zoning hearing board possesses to
               interpret the ordinance that it is charged with
               administering.
Tri-County Landfill v. Pine Township Zoning Hearing Board, 83 A.3d 488, 510
(Pa. Cmwlth. 2014) (citations omitted). As a result, we concur with the Board’s
determination that the proposed equine hospital use is not a permitted
“agricultural” use in the R-1 district but, rather, a veterinary hospital use, so a use
variance was necessary.11
               Additionally, Applicant did not persuade the Board that the residential
use of the property is so prohibitively expensive as to warrant the grant of a use
variance. As this Court has explained:

                      To demonstrate the requisite unnecessary hardship,
               an applicant must prove either: (1) the physical
               characteristics of the property are such that it could not in
               any case be used for any permitted purpose, or that it
               could only be used for such purpose at prohibitive
               expense; or (2) the characteristics of the property are
               such that the lot has either no value or only distress value
               for any purpose permitted by the ordinance. Thus, the
               hardship exception justifying the grant of a variance is
               only triggered when it is shown that compliance with the

       11
           We disagree with Applicant’s assertion that the Board acted arbitrarily or capriciously
in this regard. As noted above, the Board had the power to reject even uncontradicted testimony.
Valley View Civic Association, 462 A.2d at 642; Taliaferro, 873 A.2d at 808-09. Moreover, “[a]
capricious disregard occurs only when the fact-finder deliberately ignores relevant, competent
evidence. Capricious disregard of evidence is a deliberate and baseless disregard of apparently
reliable evidence. Taliaferro, 873 A.2d at 814 (citations omitted). See also Wintermyer Inc. v.
Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487-88 (Pa. 2002) (“Even in
such context, however, this limited aspect of the review serves only as one particular check to
assure that the agency adjudication has been conducted within lawful boundaries--it is not to be
applied in such a manner as would intrude upon the agency's fact-finding role and discretionary
decision-making authority.”). We discern no error in the Board’s credibility determinations in
this matter.


                                               10
             zoning ordinance could render the property practically
             useless.

                   In addition, the reasons for granting a variance
             must be substantial, serious, and compelling. The burden
             of an applicant seeking a zoning variance is heavy, and
             variances should be granted sparingly and only under
             exceptional circumstances. A variance will not be
             granted simply because a zoning ordinance deprives the
             owner of the most lucrative or profitable uses of the
             property. Economic hardship short of rendering the
             property valueless does not justify the grant of a
             variance.
Oxford Corporation v. Zoning Hearing Board of the Borough of Oxford, 34 A.3d
286, 295-96 (Pa. Cmwlth. 2011) (citations and footnote omitted). The Board chose
not to accept Applicant’s assertion that the renovation of the farmhouse was cost
prohibitive and that it could only be rehabilitated for an office use, and this
determination will not be disturbed by this Court in this appeal.
             Moreover, even under the more relaxed standard for establishing
unnecessary hardship for the requested dimensional variances, some unnecessary
hardship must be shown. Hertzberg v. Zoning Board of Adjustment of the City of
Pittsburgh, 721 A.2d 43, 50 (Pa. 1998); Tidd v. Lower Saucon Township Zoning
Hearing Board, 118 A.3d 1, 8 (Pa. Cmwlth. 2015). However, because the Board
did not grant the use variance, it did not need to address Applicant’s request for
variances from the other Zoning Ordinance requirements and we need not address
Applicant’s claims in this regard in this appeal. See, e.g., In re Avanzato, 403
A.2d 198, 200 n.3 (Pa. Cmwlth. 1979) (“[S]ince the owners are not entitled to a
use variance, we need not consider the application for dimensional variances
regarding which the owners introduced no evidence.”).




                                         11
Accordingly, the trial court’s order is affirmed.




                          MICHAEL H. WOJCIK, Judge




                            12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Application of Sunflower      :
Farm, LLC                            : No. 815 C.D. 2016
                                     :
Appeal of: Sunflower Farm, LLC       :


                                  ORDER


            AND NOW, this 28th day of March, 2017, the order of the Bucks
County Court of Common Pleas, dated April 19, 2016, at No. 2013-09041, is
AFFIRMED.




                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
