          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey L. Grim and Carol A. Grim,   :
                   Appellants        :
                                     :
            v.                       : No. 2482 C.D. 2015
                                     : ARGUED: September 15, 2016
Zoning Hearing Board of Perry        :
Township and Township of Perry,      :
Berks County and Earl Christman,     :
James P. Adam, Jan M. Adam and       :
Dean A. Adam                         :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                        FILED: December 9, 2016

            Jeffrey and Carol Grim (Landowners) appeal from the order of the
Court of Common Pleas of Berks County, dated November 18, 2015, affirming a
decision by the Zoning Hearing Board (ZHB) of Perry Township, denying
Landowners’ requests for a variance by estoppel or a special use exception. We
affirm.


            Landowners own a 48.5 acre parcel in Perry Township (Township),
Berks County.    The property is zoned Rural Agricultural (R-A), where the
operation of a recreational club or facility is not permitted as of right.
Nevertheless, Landowners leased the property to the Fairview R/C Flyers Club
(Club) in 2007. The Club used the property to fly model aircraft daily from 9 a.m.
until dusk, weather permitting. After receiving complaints from neighbors about
Club activities, the Township issued a Notice of Violation (NOV) on August 22,
2014. The NOV stated that the Club’s activities were not permitted by right in the
R-A Zoning District and that the use was never authorized.


            Landowners filed an appeal with the ZHB on September 18, 2014,
arguing that they were entitled to a variance by estoppel, or in the alternative, a
special use exception. The ZHB held public hearings on November 17, 2014, and
December 15 and 29, 2014, where evidence of the following was presented.


            Model airplane clubs began flying remote control planes on the
property in the late 1960s. In 1997, the ZHB granted Landowners a special
exception to operate a nine-hole golf course on the property. Model airplane club
activity on the property ceased from 1998 until 2007, when the golf course closed.


            The Club commenced operation on the property in 2007 under an
annual lease with Landowners for $10,000 per year. In addition to daily flight
activity, the Club also hosted fundraising events on three or four weekends a year.
Many of the model planes in use had wingspans up to ten feet. Model jets weighed
up to 55 pounds and traveled at speeds in excess of 200 miles per hour. The
aircraft flew in an oval path that extended beyond the boundaries of Landowners’
property. The Club president testified that he was aware of approximately 12
crashes of model aircraft on adjacent properties over an eight year period. One
neighbor testified that approximately ten model aircraft had crashed on his land.


                                        2
Another neighbor stated that he had experienced approximately 12 crashes per year
on his property.


             In April 2014, Landowners obtained a building permit from the
Township for construction of a 2,400 square-foot pole building, which has been
used for storing model aircraft and other equipment (e.g., golf carts, lawn mowers).
The cost of the building exceeded $25,000. The application for the building permit
did not refer to model aircraft operation or storage.


             The ZHB issued a decision on April 13, 2015, denying Landowners’
requests. On April 23, 2015, Landowners filed an appeal with the Berks County
Court of Common Pleas, which relied on the record from the ZHB hearings and
did not take additional evidence. On November 17, 2015, the trial court affirmed
the decision of the ZHB. On December 4, 2015, Landowners filed a timely appeal
to this Court.


             Our standard of review is well-settled. Where the trial court does not
take additional evidence, the zoning board’s decision must be upheld unless the
board committed an error of law or “a manifest abuse of discretion.” Valley View
Civic Association v. Zoning Board 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.


             Landowners argue that they are entitled to a variance by estoppel that
would permit Club members to continue operating model aircraft from the


                                          3
property. A “variance by estoppel is an unusual remedy under the law and is
granted only in the most extraordinary of circumstances.” Skarvelis v. Zoning
Hearing Board of Dormont, 679 A.2d 278, 281 (Pa. Cmwlth. 1996) (citations
omitted). The remedy is limited to circumstances “when a property owner. . . has
maintained a use of property contrary to the zoning laws for a long period of time.”
Colelli v. Zoning Board of Adjustment of City of Pittsburgh, 571 A.2d 533, 534
(Pa. Cmwlth. 1990). An applicant for a variance by estoppel must establish:

             (1) the municipality’s failure to enforce the ordinance for
             a long period of time; (2) that the municipality knew, or
             should have known, of the illegal use and “actively
             acquiesced” in the illegal use; (3) reliance by the owner
             on the appearance of regularity that the municipality’s
             inaction has created; (4) hardship created by the cessation
             of the illegal use; and (5) that the variance will not be a
             threat to the health, safety or morals of the community.
Id. at 534-35. For Landowners to “prevail under a theory of variance by estoppel,
they must establish the essential factors by clear, precise and unequivocal
evidence.” Springfield Township v. Kim, 797 A.2d 717, 721 (Pa. Cmwlth. 2002)
(citation omitted).


             The ZHB and trial court both concluded that Landowners failed to
establish two of the essential factors by clear, precise and unequivocal evidence:
that cessation of the illegal use would create a hardship and that the variance would
not be a threat to the health, safety, or morals of the community. Focusing on just




                                         4
these two factors, we agree that the ZHB’s findings are supported by substantial
evidence and there has been no manifest abuse of discretion.1


              On the issue of hardship, Landowners contend that their $25,000
expenditure on the pole building and the loss of the $10,000 annual lease with the
Club would amount to a hardship and cite Vaughn v. Zoning Hearing Board of
Township of Shaler, 947 A.2d 218 (Pa. Cmwlth. 2008), as support for their
position. In Vaughn, this Court ruled that a property owner was entitled to a
variance by estoppel to preserve a non-conforming retaining wall on his property.
The property owner in Vaughn established that the denial of a variance would
result in hardship with evidence that enforcement of the relevant ordinance would
require an expenditure of $20,000 to demolish and remove the offending wall. Id.
at 224.


              This case is distinct from Vaughn in that the denial of a variance will
not require Landowners to pay to demolish the pole building or any other structure.
Although Landowners argue that the sole purpose of the pole building is to store
model aircraft, the record shows that Landowners also store golf carts, lawn
mowers and other equipment therein.             (R.R. 108-09a, Notes of Testimony,
11/17/2014, at 89-90).      Landowners’ prior investment in the pole building, a
structure demonstrably adaptable to other uses in the absence of a variance, does
not support a finding of hardship. Nor does the loss of income from the lease to
the Club.



      1
         Having found Landowners failed to establish these two factors, this Court need not
analyze the additional factors addressed by the ZHB and trial court.


                                            5
              A mere showing of some economic loss is insufficient to demonstrate
unnecessary hardship in the context of a variance by estoppel. 679 A.2d at 283-84.
“[U]nnecessary hardship is a condition which renders a property almost valueless
without the grant of a variance.” Schaefer v. Zoning Board of Adjustment of the
City of Pittsburgh, 435 A.2d 289, 292 (Pa. Cmwlth. 1981). The record shows that
Landowners previously operated a golf course on the property and the record is
void of any other evidence that shows the property is not susceptible to a valuable
permitted use in the absence of a variance. Consequently, Landowners have failed
to demonstrate sufficient hardship to support the grant of a variance by estoppel.



              To qualify for a variance by estoppel, Landowners also must establish
that the variance would not pose a threat to the health and safety of the
community.2 571 A.2d at 535. Both the ZHB and the trial court concluded that
Landowners also failed to meet that burden, however. The ZHB found that the
Club’s activities would “be detrimental to the public health, safety and general
welfare” of neighboring properties. Decision of the ZHB, April 13, 2015. (R.R. at
506a.) The trial court stated:

              The record clearly demonstrates that the speed, size and
              weight of the model airplanes and jets have increased
              over the past five decades to characteristics where safety
              needs to be the primary concern. When the Club
              restarted its recreational activities in 2007, the scope of
              its use rapidly grew to include larger, heavier and louder
              model planes and jets.

       2
           Likewise, if Landowners are to prevail in their alternative argument that they are
entitled to a special use exception that would permit Club activities to continue, they must show
that the proposed use would not adversely affect the health and safety of residents or workers on
adjacent properties. Township of Perry Zoning Ordinance 502.3(e). (R.R. at 557a.)


                                               6
             The record is replete with testimony. . . evidencing the
             Club’s inability to ensure the safety of [Landowners’]
             neighbors and the public at large. There have been
             numerous complaints, crashes, and trespasses by Club
             members retrieving fallen parts from neighboring land.
             The Club’s actions are increasingly putting residents,
             workers, livestock, buildings, equipment, and crops in
             threatening situations.
Trial Court Opinion, January 22, 2016, at 12-13. (Landowners’ Br., Appendix B.)


             Landowners characterize the evidence of danger to health and safety
in this case as merely speculative. They argue that this case is controlled by JoJo
Oil Company v. Dingman Township Zoning Hearing Board, 77 A.3d 679 (Pa.
Cmwlth. 2013). In JoJo, a home heating oil company sought a special use
exception to operate a bulk fuel transfer station. Neighbors objected, testifying
about their proximity to the proposed fuel station and fears of an explosion. Id. at
684. The local zoning hearing board denied the request for a special use exception
in part because of the potential risk of explosion posed to adjoining properties. Id.
at 685. The oil company appealed that decision to the trial court, which reversed
the local zoning hearing board. “[T]he trial court found that there was a lack of
testimony as to the level of risk of an explosion,” and reasoned that the objecting
neighbors “merely speculated as to the risk of explosion.” Id. On appeal, this
Court affirmed the trial court. We ruled that “[a] proposed use’s detrimental effect
on public safety must be established by evidence,” and that “[m]ere speculation as
to a possible harm is insufficient.”    Id. at 688-89 (emphasis added) (citation
omitted).




                                         7
               However, unlike the evidence in JoJo, the evidence before the ZHB in
this case included concrete accounts of model aircraft repeatedly crashing on
adjacent property. There is substantial evidence to support the finding that the
operation of these model planes poses a serious threat to persons on adjoining land.
Therefore, Landowners have failed to establish that they are entitled to a variance
by estoppel.


               Similarly, because the record supports the conclusion that the Club’s
activities would have an adverse effect on the health and safety of residents and
workers on adjacent properties, the ZHB and trial court properly concluded that
Landowners do not qualify for a special use exception.


               Accordingly, we affirm the decision of the trial court.




                                         __________________________________
                                         JULIA K. HEARTHWAY, Judge




                                            8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey L. Grim and Carol A. Grim,    :
                   Appellants         :
                                      :
            v.                        : No. 2482 C.D. 2015
                                      :
Zoning Hearing Board of Perry         :
Township and Township of Perry,       :
Berks County and Earl Christman,      :
James P. Adam, Jan M. Adam and        :
Dean A. Adam                          :


                                     ORDER


            AND NOW, this 9th day of December, 2016, the order of the Berks
County Court of Common Pleas is affirmed.




                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge
