IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hasbrouck Sand and Gravel, Inc. and :

HLC Land Management, LLC, :

Appellants :

:

v. :

:

Oil Creek Township : No. 632 C.D. 2021

Zoning Hearing Board : Argued: February 7, 2022

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: April 11, 2022

Hasbrouck Sand and Gravel, Inc. and HLC Land Management, LLC

(jointly, Hasbroucks), two related family businesses, appeal from an order of the 

Court of Common Pleas of Crawford County (trial court) affirming the denial of a 

variance by the Oil Creek Township (Township) Zoning Hearing Board (Board). 

The Hasbroucks seek to expand their existing sand and gravel mining activities into 

a previously negotiated buffer zone that was determined through mediation, 

memorialized in a signed agreement, and reflected in a subsequent amendment to 

the Township’s zoning ordinance. Upon review, we affirm the trial court’s order

affirming the denial of the variance.
2

I. Background

Sometime in or around 2000, the Hasbroucks purchased a former 

country club and golf course property (Property) in the Township. Memorandum 

Op., May 14, 2021, Ex. C to Appellants’ Br. (Trial Ct. op.) at 1. At that time, the 

Property was zoned as part of the Township’s Suburban Residential Restricted 

District. Reproduced Record (R.R.) at 148a. The Hasbroucks sought a change in 

the zoning of the Property to allow mining of sand and gravel, which neighbors of 

the Property opposed. Id. at 148a. Pursuant to a then-recent amendment to the 

Pennsylvania Municipalities Planning Code (MPC),1 Sections 609(f) and 908.1, 53 

P.S. §§ 10609(f) & 10908.1,

2

the Township formed a nine-member mediation 

committee (Committee) to meet with a mediator and discuss a possible amicable 

resolution. R.R. at 148a. The Committee included a member of the Township’s 

Board of Supervisors, the Township’s Secretary and Zoning Officer, a member of 

the Township’s Planning Commission, two nearby residents, and two members of 

the Hasbrouck family, Herb and Bruce Hasbrouck, as well as attorneys for the 

residents and the Hasbroucks. Id.

After a number of meetings and discussions, the Committee members 

drafted, unanimously approved, and executed a Mediation Committee Report and 

Agreement (Mediation Agreement), which they submitted to the Township for 

approval. R.R. at 148a-57a. The Mediation Agreement proposed the formation of 

two new zoning districts, Rural Economic Development (RED) and Rural Industrial 

Office (RIO). Id. The Property would lie in both zoning districts, with a 200-foot1 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.

2 Section 908.1 was added by the Act of December 21, 1988, P.L. 1329.
3

wide strip of land fronting on the south side of State Route 8 (Route 8) zoned RIO 

and the remainder of the Property zoned RED. Id.

The parties to the Mediation Agreement consented to and proposed to 

the Township a number of permitted uses in the RED district but proposed only

conditionally permitted uses in the RIO district. R.R. at 156a-57a. Of primary 

significance here, the parties agreed and proposed that sand and gravel mining would 

be a conditionally permitted use in the RED district, but would not be permitted in 

the RIO district. Id. However, the Hasbroucks agreed not to engage in mining 

activities in a 400-foot-wide strip along Route 8 (200 feet of RIO district adjacent to 

Route 8 and 200 feet of buffer zone on the south side of the RIO district). Id. In 

addition, the parties agreed to a “20-year limit” line, located well south of the buffer 

zone and Route 8, and the Hasbroucks agreed not to mine any closer to Route 8 than 

that line for a period of 20 years. Id. at 150a, 153a-54a & 159a. The record does 

not reflect whether the Hasbroucks could have succeeded in obtaining either a 

zoning change or a variance to mine the Property in the absence of the Mediation 

Agreement.3

The Township approved the Mediation Agreement in concept and 

enacted an amendment to its zoning ordinance, Ordinance No. 1 of 2002 (Ordinance 

3 Neighbors of the Property opposed the proposal to change the Property’s use from a golf 

course to a sand and gravel mining business with its attendant noise, dust, and added truck traffic. 

Accord R.R. at 299a-300a (neighbor stating that an appraisal of her property showed a $70,000 

reduction in its value since mining activity began on the Property); id. at 21a, 303a & 343a

(neighbors describing the constant extreme noise and dust generated by the mining activity and 

stating that they have to keep their doors and windows closed and cannot use the portions of their 

properties facing the Property); id. at 329a (Bruce Hasbrouck acknowledging that dust and noise 

occur with sand and gravel mining). In addition to the buffer zone, pursuant to the 20-year limit 

line provided in the Mediation Agreement, neighbors also obtained a 20-year hiatus before any 

mining would occur on the northern portion of the Property nearest to Route 8, which amounted 

to more than half of the Property. See id. at 150a, 153a-54a & 159a.
4

No. 1), which largely tracked the terms of the Mediation Agreement. R.R. at 33a39a. As enacted, however, Ordinance No. 1 provided for only conditionally 

permitted uses in both the RED and RIO districts,

4

rather than authorizing the 

proposed permitted uses in the RED district. Id. Regarding the 200-foot-wide strip 

of land immediately south of the RIO district, Ordinance No. 1 provided that mining 

activities “shall not be . . . closer than 200 feet to the boundary of any zoning district 

where such operations are not permitted . . . ,” e.g., the RIO district. Id. at 38a. 

Thus, although structured differently, in part, from the proposal in the Mediation 

Agreement, Ordinance No. 1 still allowed the mining activities desired by the 

Hasbroucks and created the proposed 200-foot buffer zone between mining and 

commercial activities and a 400-foot total buffer zone between mining activities and

Route 8. The Hasbroucks do not point to any specific adverse effect on their use of 

the Property arising from the slight differences between the ordinance provisions 

proposed in the Mediation Agreement and those actually enacted by the Township.

By 2019, mining activities on the Property were approaching the buffer 

zone.5 R.R. at 291a. The Hasbroucks filed an application for a variance to allow 

mining activity in the 200-foot buffer zone between the rest of the RED district and 

the RIO district. Id. at 12a-15a. At a hearing before the Board, Bruce Hasbrouck, 

the Vice President of Hasbrouck Sand and Gravel, Inc. and the General Partner of 

HLC Land Management LLC, testified on behalf of the Hasbroucks. Id. at 288a. 

He acknowledged that he was a member of the Committee and that he agreed to and 

4 Neither party has questioned the legality of creating a zoning district with no permitted 

uses. Therefore, we do not consider it here.

5 The record does not indicate whether the Hasbroucks have yet begun mining north of the 

20-year limit line.
5

signed the Mediation Agreement on behalf of the Hasbroucks. Id. at 295a. He 

explained that mining the buffer zone would allow the Hasbroucks to enhance the 

return on their investment in the Property and that once mining activities take place 

along the edge of the buffer zone, there is no way to go back and mine the buffer 

zone later, because of the slope that will be created by mining that part of the 

Property. Id. at 291a & 293a. Bruce Hasbrouck testified that the land in the buffer 

zone is useless to the Hasbroucks if it cannot be mined. Id. at 328a.

Following the hearing, the Board issued a decision denying the 

requested variance (2019 Board Decision). R.R. at 16a-18a. The Board concluded 

the Hasbroucks failed to show any unique circumstances or conditions of the 

Property, and their desire for additional profit from mining the buffer zone did not 

constitute the unnecessary hardship required to justify a variance. Id. at 17a (citing 

Appeal of Eureka Stone Quarry, Inc., 539 A.2d 1375 (Pa. Cmwlth. 1988)). The 

Board stated that without a showing of unnecessary hardship, there was no need to 

reach the issue of whether the Hasbroucks created the hardship themselves. R.R. at 

17a. Nonetheless, the Board noted Bruce Hasbrouck’s participation in and execution 

of the Mediation Agreement, implying that any hardship was self-created. See id.

The Hasbroucks appealed to the trial court but subsequently requested 

a remand to the Board for a further hearing to submit additional evidence, which the 

trial court granted. R.R. at 19a. Following the second hearing, the Board again 

issued a decision denying the variance (2020 Board Decision). Id. at 20a-22a. The 

Board concluded the Hasbroucks failed to establish a unique character or condition 

of the Property creating an unnecessary hardship, and further, they did not show that 

they had not created the alleged unnecessary hardship. Id. at 22a. The Hasbroucks 
6

again appealed to the trial court, which affirmed the Board’s decision. See generally

Trial Ct. op. 

This appeal followed.

II. Issues

On appeal,6the Hasbroucks raise several issues, which we reorganize 

and paraphrase as follows. First, regarding the alleged unnecessary hardship they 

will incur without a variance, the Hasbroucks assert that the Board erroneously 

required them to prove it was impossible to develop the buffer zone within the RED 

district in conformity with the Township’s zoning ordinance. They argue that they 

proved the ordinance inflicted an unnecessary hardship because of the rezoning and 

their inability to mine in the buffer zone, and because the development anticipated 

in creating the RIO district has not occurred. Further, they insist their participation 

in mediation and execution of the Mediation Agreement does not mean the hardship 

was self-created. We address each issue in turn.7

6 Where the trial court has taken no additional evidence, this Court’s review is limited to 

determining whether a zoning board’s findings are supported by substantial evidence or whether 

the zoning board made an error of law in rendering its decision. Twp. of Exeter v. Zoning Hearing 

Bd., 962 A.2d 653, 659 (Pa. 2009). Further, a zoning board’s findings are owed deference, 

especially as to whether a variance applicant satisfied the unnecessary hardship criterion, in light 

of the zoning board’s expertise and knowledge regarding local conditions. Marshall v. City of 

Philadelphia, 97 A.3d 323, 333 (Pa. 2014); Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 

A.3d 1, 9 (Pa. Cmwlth. 2015).

7 The Hasbroucks also assert that the trial court erroneously based its affirmance on issues 

not included in the 2020 Board Decision, including conclusions in the 2019 Board Decision that 

were not repeated in the 2020 Board Decision. Appellants’ Br. at 48. However, because the trial 

court took no additional evidence, this Court’s review relates solely to the sufficiency of the 

Board’s decision. See supra note 6. For this reason, and because we conclude that the Board’s 

findings and conclusions in the 2020 Board Decision are sufficient to support the Board’s denial 

of the variance, we need not resolve the question of whether the trial court properly considered the 

conclusions in the 2019 Board Decision as well as those in the 2020 Board Decision.
7

III. Discussion

A. Applicable Burden of Proof

“An application for a variance seeks permission to do something which 

is prohibited by the zoning ordinance. In essence, a variance constitutes an 

exception, or an overriding of legislative judgment concerning the will of the citizens 

of the community regarding land use.” Metal Green Inc. v. City of Phila., 266 A.3d 

495, 506 (Pa. 2021). An applicant for a variance must establish all of the following 

criteria:

(1) an unnecessary hardship will result if the variance is 

denied, due to the unique physical circumstances or 

conditions of the property; (2) because of such physical 

circumstances or conditions the property cannot be 

developed in strict conformity with the provisions of the 

zoning ordinance and a variance is necessary to enable the 

reasonable use of the property; (3) the hardship is not selfinflicted; (4) granting the variance will not alter the 

essential character of the neighborhood nor be detrimental 

to the public welfare; and (5) the variance sought is the 

minimum variance that will afford relief.

Tidd v. Lower Saucon Twp. Zoning Hearing Bd., 118 A.3d 1, 8 (Pa. Cmwlth. 2015)

(quoting Tri-Cnty. Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 520 

(Pa. Cmwlth. 2014) (citation omitted) (additional quotation marks omitted)); see 

also Section 910.2(a)(1-5) of the MPC,8 53 P.S. § 10910.2(a)(1)-(5); Larsen v. 

Zoning Bd. of Adjustment, 654 A.2d 256, 261 (Pa. Cmwlth. 1995) (“Variances are 

generally granted only under exceptional circumstances and an applicant must 

satisfy all criteria necessary for the grant of a variance.”) (additional citation 

omitted).

8 Added by the Act of Dec. 21, 1988, P.L. 1329.
8

As a threshold matter, the parties dispute the nature of the variance at 

issue. The Board asserts that Ordinance No. 1 expressly precludes mining activities 

as a use in the buffer zone, and therefore, the Hasbroucks are necessarily seeking a 

use variance in order to conduct mining in the buffer zone. Appellee’s Br. at 7. The 

Hasbroucks counter that the buffer zone adjacent to the RIO district is simply a 

setback and that, accordingly, they are seeking a dimensional variance9to allow them 

to expand their conditionally permitted mining activities into the setback area.10 

Appellants’ Reply Br. at 3-6.

In support of their position, the Hasbroucks rely on Hertzberg v. Zoning 

Board of Adjustment, 721 A.2d 43, 47 (Pa. 1997) (explaining that “the grant of a 

dimensional variance is of lesser moment than the grant of a use variance, since the 

latter involves a proposal to use the property in a manner that is wholly outside the 

zoning regulation”), and Tidd, 118 A.3d at 8 (stating that “[a] dimensional variance 

involves a request to adjust zoning regulations to use the property in a manner 

consistent with regulations, whereas a use variance involves a request to use property 

9 We reject the Board’s argument that the Hasbroucks did not contend they were seeking a 

dimensional variance until they filed their brief in the trial court. Although the Hasbroucks’ 

variance application did not expressly state which type of variance they were seeking, their 

description of the variance indicated they were seeking to expand their existing use of the Property 

into the buffer zone. R.R. at 14a-15a. Moreover, at the Board hearing on remand, the Hasbroucks’ 

counsel expressly stated to the Board that they were requesting a dimensional variance. See

Appellants’ Reply Br. at 1-2 (quoting remand hearing transcript, R.R. at 322a). We conclude the 

Board was sufficiently on notice of the type of variance the Hasbroucks were seeking.

10 The Hasbroucks observe that a dimensional variance seeks only “a reasonable 

adjustment of the zoning regulations in order to utilize the property in a manner consistent with 

the applicable regulations.” Appellants’ Reply Br. at 3 (first quoting Hertzberg v. Zoning Bd. of 

Adjustment, 721 A.2d 43, 35 (Pa. 1997) (additional quotation marks omitted); and then citing Tidd, 

118 A.3d at 8). To the extent that the Hasbroucks imply that eliminating the entire buffer zone 

adjacent to the RIO zone is “a reasonable adjustment,” we find no support for such a position in 

either the record or the parties’ briefs.
9

in a manner that is wholly outside zoning regulations”). Appellants’ Reply Br. at 3-

6. Tidd involved a zoning ordinance provision requiring buildings used to shelter 

horses and areas used to corral or pasture horses to be 100 feet back from lot lines. 

Id. at 3. The property owner sought a dimensional variance in order to encroach into 

the setback area with pasture, which was a permitted use. Id. Here, we agree with 

the Hasbroucks that, by analogy, their proposed expansion of their conditionally 

permitted mining operations into the buffer zone, which is essentially a setback, 

likewise constitutes a request for a dimensional variance, not a use variance.

In Hertzberg, our Supreme Court established a more relaxed standard 

for demonstrating unnecessary hardship for a dimensional variance; in determining 

whether there is unnecessary hardship sufficient to support a dimensional variance, 

relevant factors include economic detriment to the applicant from a denial of the 

variance, the financial hardship that would arise from any work needed to bring the 

property into compliance with zoning requirements, and the characteristics of the 

surrounding neighborhood. Tidd, 118 A.3d at 8 (citing Hertzberg, 721 A.2d at 50). 

Thus, in seeking a dimensional variance, unreasonable economic hardship to the 

applicant may be considered, and the applicant is not required to prove the property 

is valueless or unusable for any purpose without the variance. Tidd, 118 A.3d at 8.

Nonetheless, the same criteria set forth above for granting a variance 

still apply to both use and dimensional variances. Tidd, 118 A.3d at 8. Although 

Hertzberg eased the requirements for showing unnecessary hardship to support a 

dimensional variance, it did not remove them. Id. An applicant must still meet each 

of the criteria for a variance, including unnecessary hardship. Id. “Where no 

hardship is shown, or where the asserted hardship amounts to a landowner’s desire 

to increase profitability or maximize development potential, the unnecessary 
10

hardship criterion required to obtain a variance is not satisfied even under the relaxed 

standard set forth in Hertzberg.” Id. With this legal framework in mind, we examine 

the Hasbroucks’ legal arguments in light of the burden of proof applicable to an 

application for a dimensional variance.

B. Unnecessary Hardship

The Hasbroucks first assert that the Board erroneously required them 

to prove the Property had unique physical characteristics that would make 

development in conformity with the zoning ordinance impossible. Appellants’ Br. 

at 32. According to the Hasbroucks, the Board then erred further by concluding the 

Hasbroucks had failed to meet that burden of proof; they insist they met their burden.

Id. We discern no merit in this argument.

In its decision following the hearing on remand, the Board correctly 

stated that 

the [Hasbroucks] must demonstrate that the [P]roperty has 

unique physical characteristics or conditions peculiar to 

the [P]roperty that cause an unnecessary hardship, that 

there is no possibility the [P]roperty can be developed in 

strict conformity with the ordinance due to such unique 

circumstances or conditions and that a variance is 

necessary to enable reasonable use of the [P]roperty . . . . 

R.R. at 22a (emphasis added). This language closely tracked the first two criteria 

for a variance as set forth in Tidd, and we find no error of law in the Board’s 

statement of these two criteria. See Tidd, 118 A.3d at 8 (stating that a variance 

applicant must establish that “an unnecessary hardship will result if the variance is 

denied, due to the unique physical circumstances or conditions of the property . . .

and a variance is necessary to enable the reasonable use of the property”).
11

Even under the somewhat relaxed standards for demonstrating 

unnecessary hardship in seeking a dimensional variance, the Hasbroucks still had to 

show that any such hardship arose from unique physical characteristics or conditions

of the Property. See Soc’y Created to Reduce Urban Blight v. Zoning Bd. of 

Adjustment, 787 A.2d 1123, 1127 (Pa. Cmwlth. 2001) (observing that “even under 

the more relaxed Hertzberg standards, which allow courts to consider multiple 

factors in determining if a dimensional variance is justified, the zoning board 

nonetheless must find some unnecessary hardship arising from the unique physical 

circumstances or conditions of the lot before the zoning board may grant a variance”)

(emphasis added) (internal citation omitted). In their principal brief, the Hasbroucks 

do not assert that the Property has unique physical characteristics as such. See 

generally Appellants’ Br. Rather, they argue that the ordinance is unique, thereby 

giving rise to a condition of the Property causing an unnecessary hardship in the 

absence of a variance. Id. at 13 (referring to “unnecessary hardship arising from the 

unique dual zoning”), 34 (asserting that “the [Board] committed an error of law by 

requiring [the] Hasbrouck[s] to prove that there were such physical conditions of the 

[P]roperty that it was impossible to develop the setback” in compliance with the 

ordinance), & 37 (contending that “the [Board] erred by improperly requiring [the] 

Hasbrouck[s] to prove that the [P]roperty had characteristics which made it 

impossible to use the [P]roperty in compliance with the ordinance”).

However, the Board concluded that the Hasbroucks “did not establish 

that there are unique physical characteristics or conditions of the [P]roperty that 

would prevent any possibility that the [P]roperty can be developed in conformity 

with the ordinance or that a variance is necessary to enable the reasonable use of 

the [P]roperty.” R.R. at 22a (emphasis added). Thus, the Board’s decision facially 
12

applied the variance criteria as set forth in Tidd, 118 A.3d at 8. The Board concluded 

the Hasbroucks failed to sustain both their burden to demonstrate a unique physical 

characteristic imposing unnecessary hardship and their burden to prove that a 

variance was necessary for the reasonable use of the Property. See R.R. at 22a. 

Assuming, arguendo, that the Board erroneously required the 

Hasbroucks to prove a unique physical condition of the Property that made its use in 

conformity with the ordinance impossible, any such purported error still would not 

require reversal, because the Board was within its discretion in finding the evidence 

inadequate to demonstrate that a variance would be required for reasonable use of 

the Property. The Board, as factfinder, was the sole judge of the credibility and 

weight of the evidence. “[A] zoning board determines the credibility of witnesses 

and weighs their testimony, resolves conflicts in testimony, and, in doing so, may 

accept or reject the testimony of any witness in part or in toto. In making these 

determinations, a zoning board is free to reject even uncontradicted testimony . . . .” 

Metal Green, 266 A.3d at 506-07. At the second Board hearing on remand, the 

Hasbroucks offered some conclusory testimony concerning the unique character of 

the ordinance creating a unique condition of the Property. See R.R. at 323a (the 

Property is the only land in the Township that lies in either the RED or RIO district). 

However, the Board concluded the Hasbroucks’ evidence failed to meet their burden 

of proof on the need for a variance to enable the reasonable use of the Property. See

R.R. at 22a. This Court will not reweigh the evidence.11 See Broussard v. Zoning 

11 In Metal Green Inc. v. City of Phila., 266 A.3d 495 (Pa. 2021), our Supreme Court 

concluded that a zoning hearing board’s decision was inadequate where, inter alia, the board, 

although stating the applicant did not establish the criteria for a variance, failed to explain whether 

the variance applicant’s evidence was insufficient to meet its burden of production or its burden 

of persuasion. Id. at 502. Here, the Hasbroucks have not raised this issue. However, we note that 

their hearing testimony consisted solely of Bruce Hasbrouck’s brief self-serving testimony and the 
13

Bd. of Adjustment, 831 A.2d 764, 772 (Pa. Cmwlth. 2003), aff’d, 907 A.2d 494 (Pa. 

2006). 

In any event, as explained in the next section, the Hasbroucks also 

failed to demonstrate that they did not cause their own hardship. Therefore, even 

assuming the Board erred in concluding that the Hasbroucks failed to demonstrate 

an unnecessary hardship, any such error was harmless.

C. Self-Created Hardship

As set forth above, in order to support a variance, the applicant must 

also establish that any hardship requiring a variance was not self-created. Tidd, 118 

A.3d at 8. Here, the Board concluded that the Hasbroucks failed to meet that 

criterion for a variance because they participated in the Committee’s mediation and 

approved and signed the Mediation Agreement on which the Township based 

Ordinance No. 1. R.R. at 22a. The Hasbroucks insist the hardship purportedly 

arising from their inability to mine in the buffer zone was not self-created because 

the Township, not the Mediation Agreement, enacted Ordinance No. 1, and because 

the hardship resulted from the rezoning and the subsequent absence of the hoped-for 

development of the RIO district. These arguments lack merit.

Regarding the Mediation Agreement, the Hasbroucks observe that 

where one purchases property knowing that its zoning precludes the purchaser’s 

intended use, and then seeks a variance from the zoning to allow that use, that 

circumstance does not constitute self-created harm. Appellants’ Br. at 44-46 (citing 

Township Zoning Officer’s verification that the RED and RIO districts do not apply anywhere in 

the Township except to the Property. See R.R. at 288a-95a & 323a-36a. The Board was within 

its discretion in determining that the Hasbroucks’ evidence was insufficient to demonstrate that a 

variance was necessary for the reasonable use of the Property.
14

Wilson v. Plumstead Twp. Zoning Hearing Bd., 936 A.2d 1061, 1070 (Pa. 2007))

(additional citations omitted). The Hasbroucks suggest the circumstances of this 

case are the same as those where a buyer purchases property with knowledge of its 

zoning and then seeks a variance. We disagree.

Contrary to the Hasbroucks’ contention, the critical difference here is 

the Mediation Agreement. The Hasbroucks bought the Property with knowledge 

that its zoning did not permit their desired mining activity, and then they sought a 

variance, but importantly, their conduct did not stop there. They agreed to mediate 

the issue of a zoning change as members of the Committee, and by negotiating and 

executing the Mediation Agreement, they avoided the risk of an unsuccessful request 

for a zoning change that could have impacted their investment in the Property. 

Through the Mediation Agreement, the Hasbroucks gained the ability to mine the 

vast majority of the Property. See R.R. at 291a (stating that the area the Hasbroucks 

are already mining is “much wider than 200 feet”). In return, they agreed to a 400

foot wide buffer zone along Route 8, and even as to that buffer zone, they gained the 

ability to conduct non-mining activities, including commercial development of the 

RIO district.

The Hasbroucks implicitly recognize the contractual nature of the 

Mediation Agreement, but they contend that to the extent it constitutes a contract, it 

is unenforceable for lack of consideration. Appellants’ Br. at 46. We disagree. 

Notwithstanding the necessity for approval by the Township, the Mediation 

Agreement is in the nature of a settlement agreement relating to a conflict among the 

Hasbroucks, the Township, and neighboring property owners. See R.R. at 148a 

(reciting that the Township “decided to organize a mediation team in order to work 

towards the resolution of a land use conflict” pursuant to Section 908.1 of the 
15

MPC, 53 P.S. § 10908.1, which authorizes mediation for resolution of such 

conflicts). The compromise of a disputed claim constitutes sufficient consideration 

to make a settlement agreement enforceable. See SKF USA, Inc. v. Workers’ Comp. 

Appeal Bd. (Smalls), 714 A.2d 496, 500 (Pa. Cmwlth. 1998) (first citing Cohen v. 

Sabin, 307 A.2d 845 (Pa. 1973); and then Lombardo v. Gasparini Excavating Co., 

123 A.2d 663 (Pa. 1956)); see also Rivers v. Del. Valley Mut. Cas. Co., 175 A.2d 

87, 89 (Pa. Super. 1961) (explaining that “[t]he compromise of disputed claims, 

whether in fact valid or not, furnishes sufficient consideration for an agreement of 

compromise . . . , the very object of a compromise being to avoid the trouble and 

risk of that question”) (internal citations omitted).

In short, the Hasbroucks entered into a valid and enforceable written 

agreement in which they promised not to mine in the buffer zone, in return for the 

ability to mine in the rest of the RED district and engage in commercial development 

of the RIO district. Although the effectiveness of the Mediation Agreement 

depended on the Township’s approval of that agreement and enactment of the 

implementing ordinance, the Township did approve the Mediation Agreement and

did enact the implementing ordinance in reliance on the Mediation Agreement’s 

terms. See R.R. at 148a. Now, after reaping the benefit of their bargain for nearly 

two decades, the Hasbroucks are approaching the buffer zone in the course of their 

mining activities and, tantalized by its potential for added profitability, they are no 

longer satisfied with the bargain they made. Like the trial court, we can envision no 

clearer example of a self-created hardship. See Trial Ct. op. at 8.

The Hasbroucks also argue that their purported hardship is not selfcreated because although they signed the Mediation Agreement, they did not agree 

therein that they would never seek a variance. Appellants’ Br. at 47-48. The 
16

Hasbroucks expressly agreed they would not mine in the buffer zone. Seeking a 

variance to do just that is a flagrant attempt to contravene the Mediation Agreement. 

Their contrary argument essentially amounts to an assertion that although they made 

an agreement, they did not agree never to try to evade their obligations under that 

agreement. That argument is specious at best.

In a related argument, the Hasbroucks assert that although they 

consented to and signed the Mediation Agreement, that agreement was not binding

on them because the Township altered some of the proposed ordinance language 

suggested in the Mediation Agreement when the Township enacted Ordinance No. 

1 with only conditionally permitted uses in the RED district rather than permitted 

uses as proposed in the Mediation Agreement. Appellants’ Br. at 47. However, the 

Hasbroucks’ overriding goal in entering the Mediation Agreement was gaining 

conditional approval to mine in the RED district. Notably, mining in the RED 

district was a conditionally permitted use, both as recommended in the Mediation 

Agreement and as enacted in Ordinance No. 1, and the Hasbroucks achieved their 

goal when the Township approved that use under the conditions proposed and 

consented to by the parties, including the Hasbroucks, in the Mediation Agreement. 

Therefore, we conclude the distinction between the proposed ordinance provisions 

in the Mediation Agreement and the provisions of Ordinance No. 1 is one without a 

difference for purposes of the enforceability of the Mediation Agreement.

12

 The 

12 Where an alleged failure of performance is immaterial and an agreement has been 

substantially performed, it provisions remain in effect. Cimina v. Bronich, 537 A.2d 1355, 1358 

(Pa. 1988) (quoting Sgarlat v. Griffith, 36 A.2d 330, 332 (Pa. 1944) (“only material failure of 

performance by one party discharges the other party . . . an immaterial failure does not operate as 

such a discharge”)) (internal quotation marks and additional citations omitted). Our Supreme 

Court long ago observed, in describing a de minimis breach, that it “would not put on spectacles, 

to look at breaches in matters unsubstantial and of no great amount one way or the other.” 
17

Township formed the Committee expressly for the purpose of mediating an 

agreement on which the Township could rely in resolving the Hasbroucks’ request 

for a zoning change to allow mining on the Property. See R.R. at 148a. The

Mediation Agreement recommended a resolution, including the creation of the RED 

district, the RIO district, and the buffer zone, which the Township implemented with 

only minor changes that were inconsequential to the Hasbroucks’ mining activities 

on the Property. Id. at 33a-39a & 148a-57a. The Hasbroucks will not now be heard 

to disclaim any role in formulating the provisions of Ordinance No. 1.

The Hasbroucks further contend that the Mediation Agreement was 

premised on the anticipated development of the RIO district and that the passage of 

time since 2002, with no such development, has removed the reason for the buffer 

zone and made both the RIO district and the portion of the buffer zone in the RED 

district useless. See Appellants’ Br. at 23-24 & 39-41. The Hasbroucks similarly

assert that because of the absence of development of the RIO zoned portion of the 

Property, the buffer zone is no longer needed. Id. at 39-41. However, there was no 

evidence concerning any expected timetable in which the hoped-for development 

would occur and, thus, no evidence that the intervening years since 2002 constituted

a sufficient time to gauge whether the area will ever be commercially developed. 

The Hasbroucks simply aver, without evidentiary support, that as no development 

occurred during the years between the creation of the RIO district in 2002 and their 

Obermyer v. Nichols, 6 Binn. 159, 173 (Pa. 1813). We note that the Hasbroucks acquiesced in any 

inconsistency between the Mediation Agreement’s recommendation and the actual language of 

Ordinance No. 1 by proceeding with their mining activities in the RED district for nearly 20 years

without asserting that the ordinance language did not match their expectation in entering into the 

Mediation Agreement. That acquiescence further illustrates the de minimis nature of the difference 

between the Mediation Agreement’s recommended zoning ordinance amendment and the 

Township’s amended ordinance as enacted.
18

variance application in 2019, development is not going to occur, because the 

“community [is] getting smaller, not larger.” R.R. at 290a. In light of the paucity 

of record evidence on this issue, we cannot conclude that the Board erred by failing 

to credit the Hasbroucks’ assertions.

In addition, the record indicates that the portions of the Property 

constituting the RIO district and the rest of the buffer zone have been and are

presently used by the Hasbroucks to grow corn. R.R. at 338a. Although there was 

some testimony that the commercial availability of the RIO district was known to 

some local residents and was “at one time” known to a few realtors, id. at 296a & 

298a, there was no evidence that it was obvious or was known to anyone else, 

including any potential developers or commercial business owners.13 

For all the reasons discussed above, we conclude that the Board did not 

err in determining that the Hasbroucks failed to meet their burdens of demonstrating 

that they are subject to an unnecessary hardship and that they themselves did not 

13 In that regard, it is noteworthy that the Hasbroucks continue to own all of the Property, 

including the portion located in the RIO district. R.R. at 293a-94a, 323a & 327a. In support of 

the Hasbroucks’ contention that commercial development of the RIO district is not feasible, Bruce 

Hasbrouck testified that no one has approached him about purchasing land in the RIO district for 

development, and that the community is getting smaller. Id. at 290a. On the other hand, there was

no evidence of any marketing efforts or other attempts to encourage such development. See id. at 

295a-96a (stating that the Hasbroucks did not do any advertising of the RIO district). We agree 

with the Hasbroucks’ observation that a property owner is not required to place his property on the 

market for sale in order to demonstrate that it is not marketable as zoned. See Appellants’ Br. at 

33-34 (quoting Valley View Civic Ass’n v. Zoning Bd. of Adjustment, 462 A.2d 637, 642 (Pa. 

1983)). Nonetheless, the inability to sell a property is probative of its marketability. Valley View, 

462 A.2d at 642. Further, we are skeptical that passively retaining ownership of a commercial 

property and using it as a cornfield, R.R. at 338a, without more, automatically entitles the owner

to conclude that commercial development is hopeless because the business world did not, 

unsolicited, beat a path to his door. However, in light of our disposition of the appeal on other 

grounds, we do not find it necessary to reach this issue.
19

create that alleged hardship. Accordingly, the Board did not err in denying the 

requested variance.

IV. Conclusion

Based on the foregoing analysis, the decision of the Board is affirmed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hasbrouck Sand and Gravel, Inc. and :

HLC Land Management, LLC, :

Appellants :

:

v. :

:

Oil Creek Township : No. 632 C.D. 2021

Zoning Hearing Board :

O R D E R

AND NOW, this 11th day of April, 2022, the order of the Court of 

Common Pleas of Crawford County is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge