IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine M. Coyle, : Appellant :

:

v. :

: City of Lebanon Zoning Hearing : No. 776 C.D. 2015 Board : Argued : March 7, 2016

BEFORE: HONORABLE PATRICIA A. McCULLOUGH , Judge

HONORABLE A NNE E. COVEY , Judge HONORABL E DAN PELLEGRINI , Senior Judge

OPINION BY JUDGE COVEY FILED: March 23, 2016

Catherine M. Coyle (Coyle) appeals from the Lebanon County Common Pleas Court’s (trial court) April 21, 2015 order affirming the City of Leban on (City) Zoning Hearing Board’s (Board) decision granting Pier N. Hess (Hess) a temporary

use variance to operate a professional business office in a Residential Medium
Density (RMD) zoning district . There are three issues for this Court’s review: (1)

wh ether the Board erred by granting Hess a temporary use variance without proof by
substantial evidence that conditions unique to the Property will cause unnecessary
hardship in the absence of the variance ; (2) whether the burden of proving entitlement

to a temporary use variance differs from that necessary to obtain a permanent

variance ; and, (3) whether the trial court erred by declaring the variance de minim i s

. After review, we reverse

.

In May 2014, Hess purchased and remodeled a single

- family home

locat ed at 8 East Chestnut Street (Property), in the City’s RMD zoning district . She2

reside s at the Property and operate s her law practice therefrom. 1 Professional and
business offices are not permitted uses in the RMD zoning district u nder Section
1321.07(c) (16) of the City’s Zoning Code (Zoning Code). O n July 29, 2014, Hess
applied for a variance under Section 1321.07(c) of the Zoning Code to lease two of the Property’s unused bedrooms to two other attorneys for use two days per week

between 8:00 a.m. and 5 :00 p.m. (Application)

. See Reproduced Record (R.R.) at 3a

7a. On the Supplemental Information

– Variance Worksheet/Project

Narrative portion of the A pplication , Hess specified that the unique physical
circumstances and unnecessary hardship requirement s for a variance under the
Pennsylvania Municipalities Planning Code (MPC) 2 “d[id] not apply.” R.R. at 6a.

Hess also claimed in the Application that since the two other attorneys would use the
Property only two days per w ee k, granting the variance would not alter the neighborhood’s essential character , and the requested variance was the minimum

necessary to afford relief

. See R.R. at 6a

- 7a.

A Board hearing was held on August 20, 2014

. Coyle, who is the owner
and occupant of 15 East Chestnut Street, loc ated across the street from and slightly

east of the Property, appeared through her counsel and object ed to the Application.
At the conclusion of the hearing, the Board unanimously granted Hess a variance, subject to conditions memorialized in the Board’s September 15, 2014 decision as follows: “1. Limited to two part

- time attorneys each renting one room; 2. Each

1 Hess is a Lebanon County Senior Deputy District Attorney (DA) . Because her DA duties are part

- time, she has two days per week to operate a private law practice . She has designated a second

- floor bedroom at the Property for use as her office , and use s the first

- floor dining room as a conference room as necessary

. See Reproduced Record (R. R.) at 14a

- 16a

. Under Section 1321.07(a)(14) of the City’s Zoning Code (Zoning Code), h ome occupations are conditional uses permitted in the City’s RMD zoning district. Coyle does not challenge the Property’s use as a home occupation and, thus, that is n ot at issue in this appeal. See R.R. at 17a.

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

– 11202.3

attorney is limited to two days of practice a week; 3. The conditional variance would
be reviewed by the [] Board every four years [] to determin e continuance of the

variance.” Board Dec

. at 8; see R.R. at 41a.

Coyle filed an appeal from the Board’s decision to the trial court. After reviewing the Board’s record and the parties’ briefs and hearing argument, on April
21, 2015, the trial court d enied Coyle’s appeal and upheld the Board’s decision
granting Hess a temporary variance

. Coyle appealed to this Court. 3

Initially, Section 910.2 of the MPC states:

(a) The [B] oard shall hear requests for variances where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The [B] oard may by rule prescribe the form of application and may require preliminary application to the zoning officer. The [B] oard may grant a variance, provided that all of the f ollowing findings are made where relevant in a given case :
(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 pe culiar 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

3 Where the trial court takes no additional evidence, this Court ’ s

‘ review is limited to determining whether the Board committed an abuse of discretion or an error of law. ’ Taliaferro v. Darby T [ wp. ] Zoning Hearing B [ d

. ] , 873 A.2d 807, 811 n.1 (Pa. Cmwlth. 2005). A zoning hearing board abuses its discretion when its factual findings are not supported by substantial evidence. JoJo Oil Co. v. Dingman T [ wp. ] Zoning Hearing B [ d

. ] , 77 A.3d 679, 685 n.6 (Pa. Cmwlth. 2013). ‘ Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. ’ Id. Tinicum Twp. v. Nowicki , 99 A.3d 586, 589 n.6 (P a. Cmwlth. 2014). By September 9, 2015 order, this Court precluded Hess from filing briefs and/or participating in oral argument.4 neighborhood or district in which the property is locat ed.
(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 t o enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant

. (4) That the variance , if authorized, will not alter the essential character of the neighborhood or district in which the property is loc ated , 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 repr esent the least modification possible of the regulation in issue.
(b) In granting any variance, the [B] oard may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this [MPC] and the zoning ordinance.

53 P .S. § 10910.2 (emphasis added)

. 4 Section 1307.08(a) of t he City’s Zoning Code
incorporates identical requirements. See R.R. at 66a

- 67a.

[T] he reasons for granting a variance must be substantial, serious, and compelling. The burden of an applicant seek ing a zoning variance is heavy, and variances should be granted sparingly and only under exceptional circumstances. A variance will not be granted simply because a zoning ordinance deprives the owner of the most lucrative or profitable uses of the propert y. Economic hardship short of rendering the property valueless does not justify the grant of a variance

.

4 Added by Section 89 of the Act of December 21, 1988, P.L. 1329.5

Oxford Corp. v. Zoning Hearing Bd. of Borough of Oxford , 34 A.3d 286, 296 (Pa.
Cmwlth. 2011) (citations omitted).

Coyle first argues that the Board erred by granting Hess a temporary

variance without proof by substantial evidence that

, inter alia

, certain conditions
unique to the Property will cause unnecessary hardship in the absence of the variance.

We agree

. Hess declared in her Application that she was not required to prove unique
physical circumstances or unnecessary hardship in support of her variance request.

See R.R. at 6a. She did not provide testimony at the Board hearing regarding either
requirement. And, as the trial court acknowledged , the Board “did not even attempt
to address and discuss issues such as hardship and the ability of [Hess] to otherwise

use the structure absent a variance.” 5 Trial Court Op. at 7. Therefore, it is undisputed
that the Board granted Hess a variance withou t any finding supported by substantial

evidence of each of the variance criteria set forth in Section 910.2 (a) of the MPC and Section 1307.08(a) of the City’s Zoning Code.

Coyle next avers that the burden of proving entitlement to a temporary

use varian ce does not differ from that necessary to obtain a permanent variance. We

agree. Here, t he Board took the position that the temporary variance it granted was consistent with Section 910.2(a)(5) of the MPC’s requirement that a variance

“ represent the mini mum variance that will afford relief [.]” 53 P.S. § 10910.2 (a)(5). While that may be true, the Board failed to address the remaining four variance
requirements. In fact, t he Board implied in its decision that temporary variances are
not subject to the re maining variance criteria set forth in Section 910.2(a) of the MPC and Section 1307.08(a) of the City’s Zoning Code

.

B ased upon the authority the Board cited in support of its decision , there
is no question that time

- limited variances are viable remedie s that have been

5 During oral argument before this Court , the Board’s couns el admitted that the Board failed to address all of the necessary variance criteria.6

repeatedly granted and upheld

. See 8131 Roosevelt Corp. t/a “Pinups” v. Zoning Bd.
of Adjustment of the City of Phila. , 794 A.2d 963 (Pa. Cmwlth. 2002) ; 1916
Delaware Tavern v. Zoning B oard of Adjustment , 657 A.2d 63 (Pa. Cmwlth. 1995);

G ish v. Exley , 34 A.2d 925 (Pa. Super. 1923)

. However, the Board’s cited cases do

not excuse the Board from in suring that temporary variances m eet the MPC’s and the Zoning Code’s tradit ional variance criteria.

Specifically, in 1916 Delaware Tavern , th e trial court rescinded a
temporary variance issue d to 1916 Delaware Tavern on the basis that the Liquor

Code’s 6 comprehensive regulation precluded Philadelphia from issuing it. Having

declared on appeal that the subject zoning code did not interfere with matters regulated by the Liquor Code, this Court reversed the trial court’s order and

remanded the matter for the zoning board of adjustment to consider whether 1916

Delaware Tavern ’s temporary variance satisfied Section 14

- 1802(1) of the
Philadelphia Zon ing Code ( which specifies the variance criteria to be considered

when evaluating traditional variance requests )

.

Moreover, in 8131 Roosevelt Corp oration , the City of Philadelphia’s
(Philadelphia) department of licenses and inspections d e nied 8131 Roosev elt Corporation’s application to use its property as a gentlemen’s club because it was

located within 500 feet of residences and because previously

- issued two

- year
temporary variance s had expired. On appeal, the zoning board of adjustment denied

a varianc e, stating that the proposed use could only be permitted if the criteria for
granting a variance was met and, since the unnecessary hardship criteria was not met, a gentlemen’s club would be an illegal use. The trial court upheld the denial and this

Court affirmed

. 8131 Roosevelt Corporation argued that collateral estoppel and re s judicata precluded denial in light of the temporary variance. This Court determined

6 Act of April 12, 1951, P.L. 90, as amended , 47 P.S. §§ 1

- 101

– 10

- 1001.7

that since “ the two

- year temporary variances . . . did not purport to establish a

permanent determination of unnecessary hardship or of lack of adverse impact on the
neighborhood

, ” and they were specific to a limited period, in seeking a new variance,
8131 Roosevelt Corporation had to again meet the variance standards

. Id. at

969.

In Ameriko hl Mining, Inc. v. Township of Elizabeth Zoning Hearing

Board (Pa. Cmwlth. No. 2461 C.D. 2010, filed December 9, 2011), 7 the zoning
hearing board denied Amerikohl Mining ’s request for a temporary variance to strip
mine and restore a parcel of land located in a residential district where strip mining
was not a permitted use, and the property could otherwise be used in accordance with
the zoning ordinance. Amerikohl Mining relied upon 8131 Roosevelt Corporation in
support of its claim that “ a temporary use v ariance should be granted under a more
relaxed hardship standard because a temporary variance is less harmful to the overall zoning scheme than a permanent variance.” Amerikohl Mining , s lip o p. at 2. On
appeal, t his Court in uph olding the zoning hearing board’s denial, stat ed :

Rather than standing for the proposition that there is a relaxed standard for a temporary variance, 8131 Roosevelt Corporation stands for the proposition that each application for a variance for the property stands on its own and mu st meet the normal variance standards. Because there is nothing in the record to establish that the property cannot be used as zoned, the [b] oard properly denied the requested variance from the temporary use provision.

Id. ( emphasis added; footnote omitte d).

7 T his Court’s unreported memorandum opinions may not be cited as binding precedent; however, the y may be cited “for [their] persuasive value [.]” Section 414 of the Commonwealth Court’s Internal Operating Procedures.8 In addition to the Board’s cited cases, in Thompson v. Philadelphia
Zoning Board of Adjustment (Pa. Cmwlth. No. 1696 C.D. 2007, filed July 8, 2008), 8
this Court reversed the zoning board of adjustment’s grant of a temporary variance to

operate a comme rcial business in a residential district because the property owner failed to prove at least one of the variance criteria

, i.e.
, that the property could not
be developed for residential use . Also, in Pienkowski v. Zoning Board of Adjustment
(Pa. Cmwlth. N o. 2095 C.D. 2008, filed December 24, 2009), 9 this Court vacated the trial court’s order upholding the zoning board of adjustment’s grant of a temporary
variance for the applicant to store construction equipment and operate an accessory

office in a buildin g located in a residential zoning district, and remanded the matter to
the trial court for further proceedings because the zoning board of adjustment
failed to make specific findings of fact and conclusions of law regarding each of
the key variance require ments

.

Finally, r ather than eliminate the unnecessary hardship requirement for a

variance

, the treatises cited by the Board state that where the re is a hardship and it is

temporary, a temporary variance is preferable to a permanent one. In particular,

Ro bert S. Ryan, Pennsylvania Zoning Law & Practice , § 6 .2.1 5 (1997), provides that “temporary variances can be a suitable remedy if used to reduce hardships [ 10 ] of a temporary nature, or as an aid in transitional situations.” Id. Further, in 83

Am

. J u r.2d Zo ning & Planning ( 2013 ) , cited by the Board, the Practice Tip clearly

states: “ An applicant for a temporary variance is required to meet the same
standards of proof as are required for a permanent variance .” Id. at § 798

8 Thompson is being cited for its persuasive value in accordance with Section 414 of the Commonwealth Court’s Internal Operating Proced ures.

9 Pienkowski is being cited for its persuasive value in accordance with Section 414 of the Commonwealth Court’s Internal Operating Procedures.

10 Temporary variances are, therefore, useful to reduce hardships, but do not eliminate the requirement to d emonstrate unnecessary hardships.9

(emphasis added)

. 11 Neither the Boa rd n or the trial court cite to any contrary authority.
Based upon the foregoing, we hold that regardless of whether a party is
seeking a temporary or permanent variance, all of the criteria set forth in Section
910.2(a) of the MPC and Section 1307.08(a ) of the City’s Zoning Code must be met.
Thus, in the instant case

, since the Board failed to make findings based upon
substantial evidence supporting all of the applicable criteria, it abused its discretion
by granting Hess a temporary use variance.

Coyl e also contends that the trial court erred by declaring the variance de

minim i s . We agree. We acknowledge that the de minimis zoning doctrine authorizes a variance “where the deviation is relatively minor and strict compliance is not

necessary to protect the public interest.” Nettleton v. Zoning Bd. of Adjustment of
City of Pittsburgh , 828 A.2d 1033, 1038 n.6 ( Pa. 2003). Thus, “[t]he de minimis
doctrine is a narrow exception to the heavy burden of proof generally placed on a
party seeking a variance . . . .” Leonard v. Zoning Hearing Bd. of City of Bethlehem

, 583 A.2d 11, 12 (Pa. Cmwlth. 1990).

Notwithstanding, this Cou r t has held:

The doctrine has exclusively been applied in cases where only minor deviations from dimensional zoning ordinances have been the basis for the variances sought. . .

.

‘ There is no precedent, however, for approving a use variance based on the ‘ [ de minimis ] ’ approach

. ’ Kensington S [

. ] v. Zoning B [ d. ] of Adjustment of Phila [

. ]

, . .

. 471 A.2d 1317, 1319 ( [Pa. Cmwlth.] 1984), citing Application of Burroughs Corp.,

. . . 422 A.2d 1183 ( [Pa. Cmwlth.] 1980). Further, [the applicant] has not presented an argument to convince us that the [ de minimis ] doctrine is properly applied in use variance cases. In Cook v. Zoning Hearing Boar

d of Ridley Township,

. . . 408 A.2d 1157,

11 Citing Light Co. v. Houghton , 226 N.E.2d 341 ( Ind. App. 1967).10 1159 ( [Pa. Cmwlth.] 1979), we stated that, ‘ we agree with a notable authority in the field that ‘

. . . it is difficult to conceive of a use variance which would be truly ‘ [ de minimis ] ’ .’ ’ [ C ] iting Ryan, Pennsylvan ia Zoning Law and Practice, Section 6.3.1 (Supp.1979).

Rollins Outdoor Adver., Inc. v. Zoning Bd. of Adjustment , 529 A.2d 99, 102

- 03 (Pa.
Cmwlth. 1987) ( bold emphasis added; footnotes omitted).

More recently, in Landis v. Bedminster T o w nship Zoning Hearing B oar d
(Pa. Cmwlth. No. 1429 C.D. 2012, filed May 31, 2013), 12 this Court observed:

As to the de minimis doctrine [the applicant] seeks to have this Court apply, this doctrine has repeatedly been rejected in a use variance case. See Rollins Outdoor Adver [

. ]

. . . (quoting Cook v. Zoning Hearing B [ d. ] of Ridley T [ wp. ]

, . . . 408 A.2d 1157, 1159 (Pa. Cmwlth. 1979)) ( ‘ [I]t is difficult to conceive of a use variance which would be truly ‘ [ de minimis ] .’ ’ ). This is because ‘ the effect on the public interest of a use variance usually is greater than the effect of a variance necessitated by only a minor deviation from a dimensional requirement. ’ Evans v. Zoning Hearing B [ d. ]

, 732 A.2d 686, 691 n.4 (Pa. Cmwlth. 1999) (citing Pyzdrowski v. Pittsburgh B [ d. ] of Adjust ment,

. . . 263 A.2d 426, 431 ( [Pa.] 1970)).

. . .

. . . [T] he de minimis doctrine has never been applied in the case of a use variance, and established law blatantly rejects its application in these instances

.
S lip op. at 3

- 4 (bold emphasis added)

. Ba sed on well

- established law that the de

minimis doctrine does not apply in use variance cases, the trial court erred by
declaring that the Board could grant the variance on a de minim i s basis

.

For the foregoing reasons, the trial court’s order is reversed

.

___________________________ ANNE E. COVEY, Judge

12 Landis is being cited for its persuasive value in accordance with Section 414 of the Commonwealth Court’s Internal Operating Procedures.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine M. Coyle, : Appellant :

:

v. :

: City of Lebanon Zoning Hearing : No. 776 C.D. 2015 Board :

O R D E R

AND NOW, this 23 rd day of March , 201 6
, the Lebanon County Common Pleas Court’s April 21, 2015 order is reversed

.

___________________________ ANNE E. COVEY, Judge