         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Doris Glaberson and                     :
Arnold Glaberson,                       :
                  Appellants            :
                                        :
            v.                          :
                                        :
Abington Township Zoning                :   No. 332 C.D. 2018
Hearing Board                           :   Argued: December 13, 2018



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: January 14, 2019



            Doris and Arnold Glaberson (together, Landowners) appeal from the
February 9, 2018 order of the Court of Common Pleas of Montgomery County (trial
court) which affirmed the decision of the Abington Township Zoning Hearing Board
(Board) denying Landowners a dimensional variance. We affirm.
            Landowners own and reside at property located at 1777 Melmar Road,
Huntingdon Valley (Property), which is located in the R-1 Residential District in
Ward No. 2 of the Township of Abington (Township). Board Opinion at 1, Board’s
Findings of Fact (F.F.) 1-2. Landowners filed an application with the Board
requesting a dimensional variance from Section 301.3 of the Township zoning
ordinance in order to construct a carport that would encroach 15 feet into the side
yard of the Property. Section 301.3 requires a 20-foot side yard. F.F. 7. Thus,
Landowners propose to use three-quarters of the required side yard setback to
construct the carport, and only a five-foot side yard setback would remain.1 The
Board held a hearing on Landowners’ variance request. Board Opinion at 1.
               At the hearing, Mr. Glaberson testified that he has a disability that
sometimes makes it difficult for him to maintain his balance and to climb steps. F.F.
8. He stated he would like to construct the carport to allow easier access to his
vehicle in inclement weather. Id. The carport would allow Mr. Glaberson to enter
his Property at grade level. Reproduced Record (R.R.) at 76a. Mr. Glaberson
explained that the existing attached two-car garage presently only accommodates
one car because he previously constructed a room in a portion of the garage when
Landowners’ five children were living at home. R.R. at 91a & 95a; see F.F. 10. Mr.
Glaberson stated that the children no longer live there, but he has not removed the
room and restored the garage to its original purpose. F.F. 11. Mr. Glaberson offered
into evidence medical reports from his treating physicians to document his medical
condition and stated that the carport would make it easier for him to move around.
R.R. at 83a-84a.
               Landowners also offered the testimony of their architect. The architect
testified that the carport would be designed for one car. R.R. at 103a. He stated that
the carport would go out 15 feet from the existing improvement on the property and
that it would be 14 feet on the inside, with 9 feet designated for the parking space
and 5 feet for the aisle. R.R. at 102a-03a. The architect opined that the carport
would eliminate a lot of the weather issues that bother Mr. Glaberson when he gets
into his car. R.R. at 118a. The architect testified that building a ramp within the

       1
         The Board points out that even in the highest density residential zoning district, the R-4,
the required setback is 10 feet. Board’s Brief at 4 (citing Township Zoning Ordinance § 304.3).
                                                 2
home’s existing garage was not a feasible alternative to the carport. R.R. at 105a-
06a.
             Landowners’ immediate neighbor testified in support of the variance.
See R.R. at 129a-30a. However, several other neighbors testified in opposition to
the variance. One of the neighbors testified that Landowners’ house was built with
a two-car garage and that one of the reasons that the two-car garage cannot be used
by Mr. Glaberson is because over half of it was made into a sitting/entertainment
room. F.F. 18; R.R. at 123a. A neighbor directly across the street from Landowners
testified that he opposed the variance required because it is out of character with the
neighborhood. F.F. 20; see R.R. at 131a-32a. He stated that he was opposed to
compromising the setback because this neighborhood contains the more prestigious
and nicely developed lands in the Township. F.F. 21; R.R. at 132a. He also stated
that Landowners would not need the variance if they removed the room in the
existing two-car garage that Landowners constructed by choice to get away from
their children. F.F. 22; R.R. at 132a-33a. Another neighbor across the street testified
that she was opposed to the variance because it would affect the neighborhood’s
sense of wide open space and compromise property values, in addition to being
generally out of character with the neighborhood. F.F. 23; R.R. at 134a-35a.
             On August 18, 2016, the Board issued a decision denying Landowners’
variance request. In its opinion, the Board found that Landowners failed to establish
a hardship. Board’s Conclusions of Law (C.L.) 3 & 5. The Board also concluded
that Landowners presently have reasonable use of the property, that the requested
relief is not the minimum relief required and that granting the variance application
would adversely affect the health, safety and welfare of the neighborhood. C.L. 1-2
& 4.


                                          3
               Landowners filed a timely appeal with the trial court. See R.R. at 2a &
5a-7a. Without taking any additional evidence, the trial court affirmed the Board’s
order.
               Landowners then timely appealed to this Court, raising three issues for
our consideration.2 First, Landowners argue that they are entitled to a dimensional
variance under the standard set forth in Hertzberg v. Zoning Board of Adjustment of
Pittsburgh, 721 A.2d 43 (Pa. 1998). Landowners contend that the variance would
allow them to construct a carport which would allow Mr. Glaberson to enter and
leave his home at grade level to accommodate his physical disability. Landowners
contend that they presented uncontradicted testimony that this is the only location
for the carport. They also contend that the variance is necessary because their lot is
nonconforming as to frontage and size; the lot is undersized, being one-half acre
compared to most of the lots in the area which are one acre. Landowners contend
that the implication of the Board’s decision and neighbors’ testimony is that they
must redesign their house and rip out the room they installed in the garage some 30
years ago. Landowners also challenge the neighbors’ testimony concerning the
character of the neighborhood and property values and argue there is no evidence to
support the Board’s finding that the proposed carport would adversely affect the
public health, safety and welfare.             Landowners also challenge the Board’s
conclusion that the requested variance is not the minimum that will afford relief,
arguing that the Board tried to redesign the proposal by suggesting a lift or ramp and
improperly found that the proposed carport was not a one-car carport.

         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.
                                                4
                Second, Landowners argue that the Board’s decision constitutes an
error of law and an abuse of discretion because its findings of fact and conclusions
of law are not supported by the evidence. Finally, Landowners also argue that the
Americans with Disabilities Act3 (ADA) and the Fair Housing Amendments Act of
1988 (FHA)4 require that the Board grant the dimensional variance.
                Addressing Landowners’ ADA and FHA argument first, we conclude
that Landowners did not raise this argument before the Board or the trial court. See
Board Hearing Transcript, R.R. at 72a-138a; Notice of Land Use Appeal, R.R. at 5a-
7a; Amended Notice of Land Use Appeal, R.R. at 17a-20a. Although Landowners’
architect testified before the Board concerning whether the dimensions of the
parking space would be ADA compliant and whether an ADA-compliant ramp could
be constructed, Landowners never argued that the ADA requires granting the
dimensional variance. See R.R. at 118a-19a. Consequently, Landowners have
waived this argument, and we will not address it.5 See Teazers, Inc. v. Zoning Bd.
of Adjustment of City of Phila., 682 A.2d 856, 859 (Pa. Cmwlth. 1996) (ruling that
where applicant never raised argument before zoning board and attempted to raise
issue for first time on appeal to the trial court, issue was waived); Dehus v.
Unemployment Comp. Bd. of Review, 545 A.2d 434, 436 (Pa. Cmwlth. 1988) (stating



       3
           42 U.S.C. §§ 12131–12165.
       4
           42 U.S.C. §§ 3601–3631.
       5
          Although Landowners’ trial court brief argued this issue, see Landowners’ trial court brief
at 9-10, there is nothing to indicate that Landowners sought permission from the trial court to raise
this argument for the first time on appeal. See Segal v. Zoning Hearing Bd. of Buckingham Twp.,
771 A.2d 90, 94 (Pa. Cmwlth. 2001) (stating, “[i]n zoning cases, a new and different theory may
not be advanced for the first time on appeal without the permission of the common pleas court”).

                                                 5
a party waives review of an issue by failing to raise it at the earliest possible
opportunity).
               Turning to Landowners’ argument regarding their entitlement to a
dimensional variance, the Pennsylvania Municipalities Planning Code (MPC)6
provides that a zoning board may grant a variance where it finds the applicant has
established all of 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.

      6
          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101–11202.



                                               6
Section 910.2 of the MPC, added by the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. §
10910.2(a).7
               Where, as here, we are faced with a dimensional variance, our Supreme
Court has articulated a more relaxed standard for granting a variance. 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, 721 A.2d at 50.
Although Hertzberg eased the requirements for a variance, it did not remove them.
Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa. Cmwlth. 2015).
Despite the more relaxed standard set forth in Hertzberg, it is still the case that “[t]he
burden on an applicant seeking a variance is a heavy one, and the reasons for
granting the variance must be substantial, serious and compelling.” Singer v. Phila.
Zoning Bd. of Adjustment, 29 A.3d 144, 149 (Pa. Cmwlth. 2011). Further, although
Hertzberg sets forth a more relaxed standard for a dimensional variance, it does not
stand for the proposition that “a variance must be granted from a dimensional
requirement that prevents or financially burdens a property owner’s ability to
employ his property exactly as he wishes, so long as the use itself is permitted.”

       7
          It appears the trial court believed that the Board found that Landowners established the
unique physical condition needed for a variance. See Trial Court Opinion at 4 (stating that the
Board acknowledged that Landowners “have an undersized lot” but that the Board determined that
they “did not establish any of the remaining four elements”). This is incorrect because the Board
found that there was no hardship and the Property was not unique. See F.F. 27-28, C.L. 3. In any
event, here, we are reviewing whether the Board committed an error of law or “a manifest abuse
of discretion. See Valley View, 462 A.2d at 693. Further, this court may affirm the decision of the
trial court on any grounds. Slusser v. Black Creek Twp. Zoning Hearing Bd., 124 A.3d 771, 772
n.1 (Pa. Cmwlth. 2015).
                                                7
Yeager v. Zoning Hearing Bd. of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001)
(emphasis in original); see also Singer, 29 A.3d at 150 (stating that to establish
unnecessary hardship for a dimensional variance, an applicant must demonstrate
something more than a mere desire to develop a property as he or she wishes).
               Here, the Board concluded that Landowners failed to establish a
hardship. F.F. 28; C.L. 3. Despite the Property’s half-acre size, the Board found
that the situation is not unique to Landowners’ Property and that other neighboring
properties have similar situations.8          This finding is supported by substantial
evidence. In fact, Landowners’ architect admitted that there are other undersized
lots in the development. R.R. at 122a. He clarified that he “didn’t say it was the
only one” and that he “said it is one of the smaller lots in the development.” Id.
Further, the situation is not unique to the Property. Rather, to the extent there is
uniqueness, it is a result of Mr. Glaberson’s personal situation. While we are not
unsympathetic to his situation, where the claimed hardship is personal to the
applicant and does not arise from the physical conditions of the property, there is no
hardship. See McEwen v. Zoning Hearing Bd. of Sadsbury Twp. (Pa. Cmwlth., No.
941 C.D. 2015, filed Jan. 5, 2016), slip op. at 17 (ruling that applicant was not
entitled to dimensional variance to construct attached garage on his nonconforming
residential lot, in part, because owner’s wife’s disability was not a hardship peculiar




       8
          While Landowners contend that their lot is nonconforming as to size and width with
respect to frontage setback, Landowners’ Brief at 8 & 11, at argument, the Board clarified that
Landowners’ Property is located in the cluster development overlay, so, in actuality, the one-half
acre is not a nonconformity. Our result would not differ, however, based on whether it is
nonconforming because of other factors that will be discussed.



                                                8
to the property).9 A variance “is appropriate only where the property, not the person,
is subject to hardship.” Yeager, 779 A.2d at 598 (emphasis in original) (internal
quotation marks and citation omitted). Consequently, we must conclude that the
Board did not err when it determined that Landowners did not establish a hardship
entitling them to a variance.
             Additionally, Landowners do not need the variance to construct the
carport in order to make reasonable use of the Property, as they are already doing so.
Landowners’ Property is improved with their residence, which includes a two-story
addition, along with what originally was a two-car attached garage, which presently
accommodates one and the remainder of which has been converted to living space.
See F.F. 10; R.R. at 91a, 95a, 99a & 102a. Further, Landowners’ architect testified
that the improvements, which he described as a two-story residence with an
attachment in the rear and a gazebo, are all located within the setback. R.R. at 99a.
Consequently, the Board did not err or abuse its discretion in concluding that the
variance is not necessary to enable Landowners to have the reasonable use of the
Property. See Yeager, 779 A.2d at 598 (noting the property was well-suited to the
purpose for which it was zoned and actually used).           For this reason as well,
Landowners have not met their burden to establish that they are entitled to a variance.
             An applicant must establish all elements necessary for a variance. See
53 P.S. § 10910.2(a). Because Landowners failed to establish the necessary hardship
and because they presently have reasonable use of the Property, they have failed to


      9
         While this Court's unreported memorandum opinions may not be cited as binding
precedent, they may be cited for persuasive value. Commonwealth Court Internal Operating
Procedure § 414(a), 210 Pa. Code § 69.414(a).




                                           9
sustain their burden to establish that they are entitled to a variance. Therefore, we
need not address any of their arguments as they relate to the remaining elements for
a variance.10
                Accordingly, for the foregoing reasons, we affirm.




                                               __________________________________
                                               CHRISTINE FIZZANO CANNON, Judge




       10
           Landowners also argue that the hardship is not self-inflicted. Additionally, Landowners
challenge the findings concerning whether the variance would adversely affect the health, safety
and welfare of the community and whether the variance is the minimum necessary to afford relief.
Landowners argue that the Board impliedly required them to deconstruct their extra room in the
garage, which they are not legally required to do, and that the alternatives suggested by the Board
and the neighbors (i.e., installing a ramp, chair lift or stair glide in the garage) are not feasible.
They also challenge the Board’s finding that Mr. Glaberson testified that he does not want to
remove the room in the garage. They also allege error because the Board found that the carport
was for 1½ to 2 cars rather than a one-car carport. The Board never made an express finding, nor
did it conclude, that the alleged “hardship” was self-created. Additionally, even assuming, without
deciding, that the challenged findings were in error, our result would be the same. None of these
arguments affect the conclusions that any “hardship” is personal to the applicant and that
Landowners presently have reasonable use of the Property.
                                                 10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Doris Glaberson and                  :
Arnold Glaberson,                    :
                  Appellants         :
                                     :
           v.                        :
                                     :
Abington Township Zoning             :   No. 332 C.D. 2018
Hearing Board                        :



                                 ORDER


           AND NOW, this 14th day of January, 2019, the February 9, 2018 order
of the Court of Common Pleas of Montgomery County is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
