IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard L. Martin and Twila J. :

Martin, Husband and Wife, and :

Marlin L. Martin and Marlene B. :

Martin, Husband and Wife :

:

v. : No. 1091 C.D. 2017

: ARGUED: April 12, 2018

Heidelberg Township Zoning Hearing :

Board :

:

v. :

:

Heidelberg Township, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE DAN PELLEGRINI, Senior Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE CEISLER FILED: May 17, 2018

Appellants Heidelberg Township and Heidelberg Township Zoning Hearing 

Board (Heidelberg Township and ZHB, individually, and Appellants, collectively)

appeal from the Court of Common Pleas of Lebanon County’s (Trial Court) July 10, 

2017 Opinion and Order, pertaining to a property (Property) owned by Appellees 

Richard L. Martin, Twila J. Martin, Marlene B. Martin, and Marlin L. Martin 

(collectively, Martins), located at 443 Sunnyside Road, Newmanstown, 

Pennsylvania. Therein, the Trial Court affirmed the ZHB’s decision to grant a special 

exception allowing the Property to be used as a recreational area, as well as a
2

variance from the applicable side yard setback constraints, and reversed the ZHB’s 

denial of a variance from the requirement that the recreational area be situated upon 

what is known as a “collector road.”1 We affirm in part and reverse in part.

On January 22, 2015, the Martins purchased the Property, which covers 101 

acres. ZHB’s Findings of Fact, Conclusions of Law, and Decision (Findings of Fact)

at 1. Pursuant to Heidelberg Township’s Zoning Ordinance (Zoning Ordinance), it 

is almost entirely zoned as “Agricultural,” though a small portion is zoned as 

“Agricultural Transition.” Id. When the Martins purchased the Property, it contained 

a six-bedroom, single-family home, as well as a number of other freestanding 

structures. After purchasing the property, the Martins quickly completed extensive

renovations, expanding the house to contain 11 bedrooms which could accommodate 

between 40 and 70 guests. Towards the end of July 2015, the Martins began renting 

the Property out as a recreational retreat and event venue. Id. The Martins did all 

of this without first consulting with or informing Heidelberg Township, or procuring 

any of the necessary permits and authorizations. Id. Heidelberg Township 

eventually learned of the Martins’ unauthorized venture and the Martins

consequently received three code violation notices for the following reasons: Failure 

 

1 As defined, in pertinent part, by Heidelberg Township’s Subdivision and Land 

Development Ordinance (SALDO), collector roads

function to collect traffic from local streets and distribute it into major streets, and, as such, 

they will normally contain a relatively large number of intersections with local streets and 

few with main streets . . . [They] shall be planned for continuity and to lead more or less 

directly to one or more focal points or centers of traffic generation, and may become bus 

routes.” 

SALDO § 510(A)(2). William Cromleigh, Vice Chairman of Heidelberg Township’s Board of 

Supervisors, testified before the ZHB on June 22, 2016 that “[t]ypically a collector street has a 

right-of-way width of 80 feet. I believe Sunnyside Road [which runs along the front of the 

Property] has a 33-foot right-of-way.” Notes of Testimony (N.T.), 6/22/16 at 49.
3

to secure a permit for an expanded sewage disposal system;

2

failure to obtain a

permit to operate a recreational retreat; and unauthorized use of a “recreational cabin 

. . . in violation of the Pennsylvania Uniform Construction Code[, 34 Pa. Code § 

403.21,]” which the inspecting code enforcement official deemed “unsafe,” and 

consequently ordered it be vacated immediately. Id. at 2-4.

The Martins initially appealed each of these citations, before withdrawing the 

appeal regarding the recreational retreat permit and instead opted to seek relief from 

the ZHB in the form of a special exception3 allowing them to use the Property as a 

recreation area/facility,

4 a variance allowing an existing 90-foot setback from the 

 

2

It is unclear from the record whether the Martins had installed a larger disposal system 

prior to being cited or just used the one which was authorized for the original, smaller, singlefamily home. See Findings of Fact at 3-4. Presumably, the “recreation cabin” was the Property’s

renovated house, though this is not explicitly spelled out in the Findings of Fact.

3 Special Exceptions . . . are deemed to be permitted uses in their 

respective districts, subject to the satisfaction of the requirements 

and standards set forth in [Article 19 of the Zoning Ordinance], in 

addition to all other requirements of this [Zoning Ordinance]. All 

such uses are hereby declared to possess characteristics of such 

unique and special forms that each specific use shall be considered 

as an individual case. The [ZHB] may grant approval of a Special 

Exception provided that the applicant complies with the standards 

for Special Exceptions set forth in [Article 19] and demonstrates that 

the proposed Special Exception shall not be detrimental to the 

health, safety, and welfare of the neighborhood . . . The burden of 

proof shall rest with the applicant. In granting a Special Exception 

. . . the [ZHB] or Board of Supervisors, as appropriate, may attach 

such reasonable conditions and safeguards in addition to those 

expressed in this [Zoning] Ordinance, as it may deem necessary to 

implement the purposes of this [Zoning] Ordinance.

Zoning Ordinance § 1901.

4 The Zoning Ordinance uses, but does not provide definitions for, the terms “recreation 

areas” and “recreation facilities.” See Zoning Ordinance §§ 201, 603(A), 1917(C), 1924. 
4

property line for a structure on the Property, as opposed to the mandated 100 feet, 

and a variance relieving them of the requirement that all recreational facilities 

located on properties larger than two acres frontally abut a collector road. Id. at 4-5; 

see Zoning Ordinance §§ 603.1(A),

5 1917(C),6 1924.7

 

Consequently, we may reference a dictionary in order to ascertain their “common and approved 

usage.” THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330, 336 (Pa. Cmwlth. 2014); 1 Pa. 

C.S. § 1903(a); see also Zoning Ordinance § 201 (“Words not herein defined shall have the 

meanings given in Webster’s Unabridged Dictionary (most recent edition) and shall be interpreted 

so as to give this [Zoning] Ordinance its most reasonable application.”). Consequently, in this 

matter, we take “area” to mean “a definitely bounded piece of ground set aside for a specific use 

or purpose” and facility to mean “something . . . that is built, constructed, installed, or established 

to perform some particular function or to serve or facilitate some particular end.” Area, WEBSTER’S 

THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2002); Facility, WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY, UNABRIDGED (2002). In addition, each of the parties refers to the 

Martins’ desire to operate the Property as a recreational “retreat,” which we deduce from this 

word’s contextual usage to subsume both “recreation areas” and “recreation facilities.” See

Findings of Fact at 2; Martins’ Brief at 5; Heidelberg Township’s Brief at 5; ZHB’s Joinder Brief 

at 3.

5

“The following uses are permitted, as Special Exceptions, upon issuance of a permit by 

the [ZHB] as provided in Article 19 of this [Zoning] Ordinance: A. Semi-public or private 

recreational areas, game and wildlife hunting and gunning clubs, camps, and structures, subject to 

the conditions listed in Sections 1917 and 1924 of this [Zoning] Ordinance.”

6

“Golf courses, country clubs and semi-public or private recreation areas and structures 

operated by membership clubs solely for the benefit of their members and not for gain shall be 

subject to the following conditions . . . C. No building, structure or part thereof or any parking or 

loading area shall be located within 100 feet of any road right-of-way line or lot line.”

7 Recreation facilities are subject to the following criteria: 

A. If the subject property contains more than two (2) acres, it shall 

front on a collector road as identified in the . . . [Heidelberg]

Township Comprehensive Plan, or a street in a proposed subdivision 

or land development plan which conforms to prevailing collector 

street design and improvement requirements. 

B. Those uses involving extensive outdoor activities shall provide 

sufficient screening and/or landscaping measures to mitigate any 

visual and/or audible impacts on adjoining properties. 
5

On June 22, 2016, the ZHB held a hearing regarding the Martins’ requests

and, on August 2, 2016, the ZHB issued a decision granting both the special 

exception which permitted the Property to be used as a recreational retreat, and a 

dimensional variance regarding the side yard setback standards. However, the ZHB

denied the Martins’ request for a variance from the collector road requirement and 

required the Martins to

pay for the cost to make Sunnyside Road a collector street, 

and . . . perform a traffic study to determine if Sunnyside 

 

C. Any structures exceeding the maximum permitted height may be 

permitted so long as they are set back from all property lines at least 

the horizontal distance equal to their height, plus an additional fifty 

(50) feet. Furthermore, such structure shall not be used for 

occupancy. 

D. The applicant shall present evidence that the proposed use will 

not be detrimental to the use of adjoining properties as a result of, 

but not limited to, hours of operation, noise, light, litter, dust, 

pollution and traffic congestion. 

E. Required off-street parking will be determined upon the types of 

activities proposed. In addition, the [ZHB] may require an 

unimproved grassed overflow parking area to be provided for peak 

use periods. Such overflow parking areas shall be accessible only 

from the interior driveways of the permanent parking lot. Overflow 

parking areas shall contain fencing to prevent vehicles from crossing 

adjoining properties or directly accessing adjoining roads. 

F. Any booths or other structures used for the collection of 

admission and/or parking fees shall be set back and arranged to 

prevent vehicle backups on adjoining roads during peak arrival 

periods. Any other collection of fees (roaming parking lot 

attendants) shall be conducted in a manner to prevent vehicle 

backups on adjoining roads. If, at any time after the opening of the 

recreation facility, the Zoning Officer determines that traffic 

backups are occurring on adjoining road, and such backups are 

directly related to the means of access to the subject property, the 

Zoning Officer can require the applicant to revise means of access 

to relieve the undue congestion.
6

Road and other connection [sic] [Heidelberg] Township 

roads can take the traffic from the vehicles and buses for 

the premises, and if not that . . . perform the work 

necessary [to ensure these roads can handle such traffic].

Findings of Fact at 12. Sunnyside Road, which abuts the front of the Property, is 3

miles in length and, with a width of 33 feet, currently has a right-of-way that is less 

than half of what is required for a collector road. See N.T. 6/22/16 at 49; N.T. 

4/20/17 at 29. The ZHB also imposed 19 conditions, several of which were 

relatively minor in nature. Findings of Fact at 12-13.

8

 

 

8 The minor conditions were:

1. That all limits on use be a condition of the permission granted;

and

2. That the uses be limited to those granted; and

3. That [the Martins] be required to meet the on-lot sewer

requirements of the SEO, or if appealed to the Court, they shall meet 

the on-lot sewer requirements as set by the Court; and

4. That they be required to meet all of the requirements of

Commonwealth Code for the premises; and

. . . .

6. That they comply with all applicable Ordinances of [Heidelberg]

Township for this use; and

7. That [Heidelberg] Township should be allowed to inspect the 

premises at reasonable times to assure compliance; and

8. That the owners shall designate to [Heidelberg] Township a 

person to be contacted in the event of compliance issues, and 

[Heidelberg] Township should be given a phone number to contact 

the person; and

9. That the Martins shall not use the subject property as approved by 

the [ZHB] until the Martins have met all of the required approvals 

by [Heidelberg] Township;

10. No buses;

11. No weddings;

12. Maximum occupancy of 40;

13. With respect to owners of other property, end of trail signs be 

posted in the size of 24 [inches] x 24 [inches] that the trail ends;

14. Buffered parking area or parking in an area not visible from the 

public road;
7

The Martins appealed the ZHB’s decision to the Trial Court on August 29, 

2016, asserting that the ZHB improperly denied their request for a variance from the 

collector road requirement, and wrongfully conditioned approval of the special 

exception upon completing the traffic study and upgrading the traffic-bearing 

capacity of Sunnyside Road. Martins’ Land Use Appeal Brief at 7-15. The Trial 

Court held oral argument on October 28, 2016, and subsequently issued an Opinion 

on December 19, 2016, stating therein that additional evidence was required to 

facilitate a proper review of the Martins’ appeal. Tr. Ct. Op., 12/19/16 at 8-11; see 

also Tr. Ct. Order, 1/24/17 at 1-2. Underpinning this decision was the Trial Court’s 

evident confusion as to whether the ZHB’s decision to grant the special exception

was reconcilable with the ZHB’s imposition of the condition that the collector road 

be built. See Tr. Ct. Op., 12/19/16 at 11-12.

9

 

15. Land line phone services must be available for emergency;

16. Quiet time would be from dusk to dawn;

17. Must comply with all state and federal regulations;

18. No operation of ATVs, motorcycles, dirt bikes, snowmobiles, or 

other similar vehicles on the premises;

19. Zoning Officer shall be contacted for on-site verification of 

compliance with these conditions.

Findings of Fact at 12-13.

9 Had [the ZHB] decided that a weekend retreat is not a use it wanted along 

Sunnyside Road, it could have denied [the Martins’] request for a special exception. 

On the other hand, if [the ZHB] believed that [the Martins’] requested use - with 

agreed upon conditions - was generally compatible with the area, then it could have 

granted the special exception without appending onerous and financially 

prohibitive conditions.

Given the record before us, we do not know whether it is possible to reconcile [the 

Martins’] proposed use [of the Property as a recreational retreat] with [the ZHB’s] 

collector road request. We simply do not have enough information to discern 

whether or not the granting of the special exception is logically consistent with the 

collector road requirement.

Tr. Ct. Op., 12/19/16 at 11-12.
8

The parties reconvened before the Trial Court on April 20, 2017 for a de novo 

evidentiary hearing. Heidelberg Township called Steve Dellinger, a municipal

planner and consultant, who testified about the creation of Heidelberg Township’s 

comprehensive development plan, the purpose of collector roads, and Sunnyside 

Road’s current state as a relatively minor route, one classified as a township road.

N.T. 4/20/17 at 8-15, 20-24. The Martins then produced Charles Haley, a civil 

engineer, who had conducted a traffic study of Sunnyside Road at the Martins’

request. Mr. Haley testified that the Martins’ recreational retreat would add a 

negligible number of vehicles to the already minimal amount of daily traffic on 

Sunnyside Road. Id. at 28-33. Mr. Haley further described the arduous process 

necessary to upgrade the entirety of Sunnyside Road’s 3-mile length to collector 

road specifications, including purchasing land from other private landowners and 

demolishing a number of buildings. Id. at 33-39. In response to a suggestion that 

the Martins merely widen Sunnyside Road along the Property itself and leave the 

rest of the thoroughfare in its current condition, Mr. Haley declared that this would 

render the road unsafe. Id. at 39-41. Mr. Haley stated that turning Sunnyside Road 

into a collector road could cost over $6 million and that the circumstances did not 

warrant transforming Sunnyside Road into a collector road. Id. at 41-45. The parties 

then submitted proposed findings of fact and conclusions of law in early May 2017, 

followed by reply briefs shortly thereafter.

On July 10, 2017, the Trial Court ruled in favor of the Martins, affirming the 

ZHB’s decision to grant the special exception and dimensional side yard variance, 

while reversing the ZHB’s denial of the “variance” request regarding the collector 

road. Tr. Ct. Order, 7/10/17 at 1-2. The Trial Court opined that the only plausible 

rationale for the ZHB’s refusal to grant the “variance,” which the Trial Court 
9

determined was dimensional in nature, was to ensure that the Martins could not use 

the Property as a recreational retreat. Tr. Ct. Op., 7/10/17 at 15-21. Due to the 

prohibitive costs of turning Sunnyside Road into a collector road, both financially 

and in terms of potential conflicts with nearby landowners, the Trial Court concluded 

that the Martins had established that denial of this variance would create unnecessary 

hardship, thus warranting relief. Id. at 21-23.

Appellants’ appeal to our court followed.10 They raise the following issues for 

our review, which we had condensed and revised for clarity: 

1. Did the Trial Court properly affirm the ZHB’s decision to grant the special 

exception?

2. Did the Trial Court err in determining that the collector road variance was 

dimensional in nature, rather than a use variance?

3. Did the Trial Court properly conclude that an unnecessary hardship existed, 

such that it justified granting a variance from the Zoning Ordinance’s collector road

requirement?

4. Did the Trial Court err by finding the special exception conditions imposed 

by the ZHB created an unnecessary hardship that warranted a variance?

 

10 The Local Agency Law, 2 Pa. C.S. § 751 et seq., states that “[i]n the event a full and 

complete record of the proceedings before the local agency was not made, the [trial] court may 

hear the appeal de novo, or may remand the proceedings to the agency for the purpose of making 

a full and complete record or for further disposition in accordance with the order of the court.” Id.

at § 754(a). Where the trial court has elected to consider additional evidence, beyond what was in 

the record created by the relevant administrative agency, and has addressed the matter before it in 

a de novo manner, we must discern whether the trial court, rather than the agency, committed an 

abuse of discretion or an error of law. Seltzer v. Zoning Bd. of Adjustment of City of Pittsburgh, 

395 A.2d 1041, 1042 (Pa. Cmwlth. 1979). An abuse of discretion exists where the trial court’s 

“findings of fact are not supported by substantial evidence.” E. Marlborough Twp. v. Jensen, 590 

A.2d 1321, 1323 (Pa. Cmwlth. 1991).
10

The key issue that needs to be addressed, and that ultimately determines the 

outcome of this appeal, is that the Trial Court erred in determining that the connector 

road proviso constituted a dimensional variance. This requirement is neither a 

dimensional or use variance, but rather it is a condition that is mandated pursuant to 

Section 1924 of the Zoning Code Ordinance. The terms “variance” and “special 

exception” cannot be used interchangeably. “[A] variance admits that the use of the 

land in question violates the ordinance, but acknowledges that some special unique 

hardship will be imposed on the subject property by strict application of the zoning 

restrictions.” Southdown, Inc. v. Jackson Twp. Zoning Hearing Bd., 809 A.2d 1059, 

1064 n.6 (Pa. Cmwlth. 2002). By contrast, 

[a] special exception is a conditionally permitted use, 

legislatively allowed where specific standards and 

conditions detailed in the ordinance are met. [It] is not an 

“exception” to the zoning ordinance; rather, it is a use 

permitted in accordance with the express standards and 

criteria in the zoning ordinance.

Agnew v. Bushkill Twp. Zoning Hearing Bd., 837 A.2d 634, 637 (Pa. Cmwlth. 2003)

(internal citations omitted). 

[O]ur cases have repeatedly made clear that the applicant 

has both the persuasion burden and the initial evidence 

presentation duty to show that the proposal complies with 

the “terms of the ordinance” which expressly govern such 

a grant. This rule means the applicant must bring the 

proposal within the specific requirements expressed in the 

ordinance for the use (or area, bulk, parking or other 

approval) sought as a special exception. 

Bray v. Zoning Bd. of Adjustment, 410 A.2d 909, 910-11 (Pa. Cmwlth. 1980)

(internal citations omitted). Nothing in this Commonwealth’s case or statutory law 

gives an applicant the ability to obtain relief, in the form of a variance, from the 

express requirements and conditions of a special exception ordinance. Moreover, 

our courts have made clear that a special exception request should not be granted 
11

unless the applicant can demonstrate that his “[development] plan, as submitted, 

addresses all of the ordinance’s prerequisites for the special exception sought, and 

reasonably shows that [he] is able to fulfill them in accordance with the procedures 

set forth by the [relevant] zoning code[.]” Broussard v. Zoning Bd. of Adjustment of 

City of Pittsburgh, 907 A.2d 494, 502 (Pa. 2006); accord Edgmont Twp. v. Springton 

Lake Montessori Sch., Inc., 622 A.2d 418, 419 (Pa. Cmwlth. 1993) (“To be entitled 

to receive a special exception it [is] incumbent on the [applicant] to come forward 

with evidence detailing how it [is] going to be in compliance with the requirements 

necessary to obtain [that] special exception.”); Appeal of Baird, 537 A.2d 976, 977 

(Pa. Cmwlth. 1988) (general promise to comply with all requirements contained in 

special exception ordinance, absent concrete and substantive plans showing how 

those requirements will be satisfied, is not sufficient to justify granting of special 

exception).

Here, Section 1924 of the Zoning Ordinance, which addresses special 

exceptions for “recreation facilities,” reads as follows:

Recreation facilities are subject to the following criteria: 

A. If the subject property contains more than two (2) 

acres, it shall front on a collector road as identified in 

the . . . [Heidelberg] Township Comprehensive Plan, or 

a street in a proposed subdivision or land development 

plan which conforms to prevailing collector street 

design and improvement requirements. 

B. Those uses involving extensive outdoor activities shall 

provide sufficient screening and/or landscaping measures 

to mitigate any visual and/or audible impacts on adjoining 

properties. 

C. Any structures exceeding the maximum permitted 

height may be permitted so long as they are set back from 

all property lines at least the horizontal distance equal to 

their height, plus an additional fifty (50) feet. Furthermore, 

such structure shall not be used for occupancy. 
12

D. The applicant shall present evidence that the proposed 

use will not be detrimental to the use of adjoining 

properties as a result of, but not limited to, hours of 

operation, noise, light, litter, dust, pollution and traffic 

congestion. 

E. Required off-street parking will be determined upon the 

types of activities proposed. In addition, the [ZHB] may 

require an unimproved grassed overflow parking area to 

be provided for peak use periods. Such overflow parking 

areas shall be accessible only from the interior driveways 

of the permanent parking lot. Overflow parking areas shall 

contain fencing to prevent vehicles from crossing 

adjoining properties or directly accessing adjoining roads. 

F. Any booths or other structures used for the collection of 

admission and/or parking fees shall be set back and 

arranged to prevent vehicle backups on adjoining roads 

during peak arrival periods. Any other collection of fees 

(roaming parking lot attendants) shall be conducted in a 

manner to prevent vehicle backups on adjoining roads. If, 

at any time after the opening of the recreation facility, the 

Zoning Officer determines that traffic backups are 

occurring on adjoining road, and such backups are directly 

related to the means of access to the subject property, the 

Zoning Officer can require the applicant to revise means 

of access to relieve the undue congestion. 

Zoning Ordinance § 1924 (emphasis added). 

Here, the Trial Court reasonably determined, particularly through crediting 

the testimony of Mr. Haley, the Martins’ civil engineering expert, that it would be 

both prohibitively costly and unnecessary for traffic-handling purposes for the 

Martins to transform Sunnyside Road into a collector road. However, we are

constrained by the law regarding ordinance interpretation and application, as well as 

the plain and unequivocal language of Section 1924, which states that if the subject 

property contains more than two acres, such as the Martins’ 101-acre Property, 

approval of a special exception for a proposed recreational facility is explicitly 

conditioned upon the applicant showing that the property frontally abuts a collector 
13

road. Consequently, we hold that the Trial Court committed an error of law by 

granting the Martins a “dimensional variance” from the collector road requirement, 

as it was improper for the Martins to seek such relief in the first place.

11

Assuming arguendo that the Martins could properly seek a variance under 

the circumstances, the record evidence established that they were not entitled to one. 

Given that the Martins sought to obtain a dimensional variance,

12 their burden of 

proof was “a heavy one,” as it is well-settled that “variance[s] should be granted 

sparingly and only under exceptional circumstances.” Rittenhouse Row v. Aspite, 

917 A.2d 880, 884-85 (Pa. Cmwlth. 2006). Pursuant to Section 910.2(a) of the 

Pennsylvania Municipalities Planning Code (MPC),

13 an applicant’s request for a 

variance should be granted only where the following conditions are satisfied:

(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 

 

11 It bears noting that this situation could have been avoided entirely if the ZHB had 

followed the law regarding special exceptions. However, Heidelberg Township waived its ability 

to raise the issue of whether the ZHB properly granted the special exception, due to its failure to 

cross-appeal the ZHB’s decision to the Trial Court. See Pa. R.A.P. 302(a) (“Issues not raised in 

the lower court are waived and cannot be raised for the first time on appeal.”); N.T. 4/20/17 at 14-

20 (testimony from Steve Dellinger, and discussion between the Trial Court and Heidelberg

Township’s counsel); Heidelberg Township’s Memorandum of Law in Support of Findings of Fact 

and Conclusions of Law at 5 (“The only remaining issue to be determined by [the Trial Court] is 

whether the [ZHB] erred or abused its discretion in denying the variance from Section 1924.A of 

the Zoning Ordinance requiring recreational facilities to be on a collector street.”).

12 “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 in a manner that is wholly outside zoning regulations.” Tri-Cty. Landfill, Inc. v. Pine Twp. 

Zoning Hearing Bd., 83 A.3d 488, 520 (Pa. Cmwlth. 2014).

13 Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 

21, 1988, P.L. 1329.
14

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.

53 P.S. § 10910.2(a).14

“To justify the grant of a dimensional variance, courts 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 [or 

property] into strict compliance with the zoning requirements and the characteristics 

of the surrounding neighborhood.” Hertzberg v. Zoning Bd. of Adjustment of City 

of Pittsburgh, 721 A.2d 43, 50 (Pa. 1998). “The quantum of proof required to 

establish unnecessary hardship is indeed lesser when a dimensional variance, as 

opposed to a use variance, is sought.” Id. at 48. However, this does not mean that 

“dimensional requirements . . . [are] ‘free-fire zones’ for which variances [can] be 

granted when the party seeking the variance merely articulate[s] a reason that it [will] 

 

14 The Zoning Ordinance also contains language governing the issuance of variances, 

which is virtually identical to that of the MPC. Compare Zoning Ordinance § 2106 with 53 P.S. § 

10910.2(a).
15

be financially ‘hurt’ if it [cannot] do what it want[s] to do with [a] property.” Soc’y 

Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of City of Phila., 771 

A.2d 874, 877 (Pa. Cmwlth. 2001). To that effect, our appellate courts have 

“consistently reject[ed] requests for dimensional variances where proof of hardship 

is lacking. 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 hardship criterion required to obtain a variance is not satisfied even 

under the relaxed standard set forth in Hertzberg.” Soc’y Hill Civic Ass’n v. 

Philadelphia Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012). 

Indeed, “[a] variance, whether labeled dimensional or use, is appropriate ‘only where 

the property, not the person, is subject to hardship,’” and, thus, the onus is on the 

applicant to firmly establish that “a substantial burden . . . attend[s] all dimensionally 

compliant uses of the property, not just the particular use [that the applicant has

chosen].” Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595, 598 

(Pa. Cmwlth. 2001) (emphasis added and emphasis in original) (quoting Szmigiel v. 

Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972)).

Here, the Martins purchased the Property and drastically transformed it into a 

recreational retreat, without notifying Heidelberg Township or obtaining the 

necessary permits and authorizations. See N.T. 6/22/16 at 13-27 (testimony of 

Richard L. Martin). They then failed to present any evidence regarding other 

dimensionally compliant uses of the Property, despite being given ample opportunity

to do so before both the ZHB and the Trial Court. Even so, they claim they were

essentially entitled to this dimensional variance as it related to the connector road,

because, in their view, it would have been illogical to deny such relief while granting 

the special exception. Martins’ Brief at 12-16. Though this argument clearly swayed 
16

the Trial Court, it is not an accurate distillation of the law in this Commonwealth, as 

the ZHB’s approval of the Martins’ special exception request neither released them 

from their evidentiary burden relating to the collector road variance, nor gave the 

Trial Court license to rescue the Martins from a hardship of their own making. 

Therefore, we hold that the Trial Court committed an error of law by granting 

the Martins’ request for a dimensional variance from the collector road requirement, 

and reverse the Trial Court as to that portion of its July 10, 2017 Opinion and Order.

While this Court recognizes that this ruling renders the special exception 

granted by the ZHB essentially useless, we cannot ignore the well-established and 

clear law pertinent to the issues in this appeal.

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard L. Martin and Twila J. :

Martin, Husband and Wife, and :

Marlin L. Martin and Marlene B. :

Martin, Husband and Wife :

:

v. : No. 1091 C.D. 2017

:

Heidelberg Township Zoning Hearing :

Board :

:

v. :

:

Heidelberg Township, :

Appellant :

O R D E R

AND NOW, this 17

th day of May, 2018, the Order of the Lebanon County 

Court of Common Pleas, dated July 10, 2017, is hereby AFFIRMED IN PART, to 

the extent it granted the special use exception and side yard dimensional variance, 

and REVERSED IN PART, to the extent it granted a dimensional variance 

pertaining to the collector road requirement.

__________________________________

ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard L. Martin and Twila J. :

Martin, Husband and Wife, and :

Marlin L. Martin and Marlene B. :

Martin, Husband and Wife :

:

v. : No. 1091 C.D. 2017

: Argued: April 12, 2018

Heidelberg Township Zoning Hearing:

Board :

:

v. :

:

Heidelberg Township, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

CONCURRING OPINION BY

SENIOR JUDGE PELLEGRINI FILED: May 17, 2018

I join with the majority in finding that the Court of Common Pleas of 

Lebanon County (trial court) erred in granting a dimensional variance from the 

requirement that the requested recreational use be on a collector road; however, I

write separately because I share with the trial court a belief that Heidelberg Township 

(Township) is attaching conditions to uses that appear to be permitted but have the 

effect of impermissibly excluding them.
DRP - 2

In this case, Richard L. Martin and Twila J. Martin, and Marlin L. 

Martin and Marlene B. Martin (collectively, the Martins) are owners of 101 acres 

located at 443 Sunnyside Road, Newmanstown, Pennsylvania (Property) in an 

agricultural zoning district. The Martins made extensive renovations to the interior of 

a structure on the Property, creating a recreational retreat venue that could 

accommodate up to 70 people. Such a use is permitted under the Township’s Zoning 

Ordinance as a special exception, but if the recreational use is more than two acres, 

the use must front on a collector road. Under the applicable zoning regulation, a 

collector road must have a width of 80 feet. Sunnyside Road is a “local road” and

only 33 feet wide.

While granting the special exception, the Township refused the Martins’

request for a variance from the condition that the use be located on a collector road. 

Making Sunnyside Road a connector road would require that the road be widened by

15 feet on both sides, at a cost of over $6 million dollars.

The trial court, after a de novo hearing and taking testimony from traffic 

planners, found that Sunnyside Road is not needed as a collector road. It went on to

find that the only reason the Heidelberg Township Zoning Hearing Board (Board) 

denied the variance was pre-textual, stating: “Other than as a rationale to deny 

MARTINS’ proposed use of the PROPERTY, there is absolutely no purpose for the 

transformation of Sunnyside Road into a collector roadway.” (Trial Court Opinion p.

6.) Because the net effect of the Township’s decision was to make a permitted use 

into one that is, in effect, not permitted, the trial court granted the Martins’ request for 
DRP - 3

a dimensional variance to remove the special condition requiring that Sunnyside 

Road be made into a collector road.

While I understand the trial court’s frustration with the Township being 

disingenuous by granting the special exception but attaching a condition that makes 

that permitted use impossible, I agree with the majority that what was before the trial 

court was not a dimensional variance but relief from the requirement that a 

recreational facility over two acres must be located on a collector road. The Martins 

also did not make out that they were entitled to a use variance because there was no 

suggestion that the Property could not be used for other uses permitted in an 

agricultural district.

To make out their challenge of a collector road requirement, the Martins 

are required to file a substantive or as-applied challenge to the Zoning Ordinance 

under Section 609.1(a) of the Municipalities Planning Code, added by Act of June 1, 

1972, P.L. 333, 53 P.S. § 10609.1(a), and Section 916.1(b), added by Act of 

December 21, 1988, P.L. 1329, § 10916.1(b), both of which allow a challenge to a 

zoning ordinance that improperly prohibits or restricts the use or development of 

land.

Because that issue is not before us, I join with the majority’s wellreasoned opinion.

________________________________

DAN PELLEGRINI, Senior Judge