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 ANNE E. COVEY, Judge

HONORABLE 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 Lebanon (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) 

whether 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 minimis. 

After review, we reverse.

In May 2014, Hess purchased and remodeled a single-family home

located at 8 East Chestnut Street (Property), in the City’s RMD zoning district. She 
2

resides at the Property and operates her law practice therefrom.1 Professional and 

business offices are not permitted uses in the RMD zoning district under Section 

1321.07(c)(16) of the City’s Zoning Code (Zoning Code). On 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 3a7a. 

On the Supplemental Information – Variance Worksheet/Project 

Narrative portion of the Application, Hess specified that the unique physical 

circumstances and unnecessary hardship requirements 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 week, 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, located across the street from and slightly 

east of the Property, appeared through her counsel and objected 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 uses 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), home 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 not 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 determine 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 denied 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 following 

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 peculiar 

to the particular property and that the unnecessary 

hardship is due to such conditions and not the 

circumstances or conditions generally created by the 

provisions of the zoning ordinance in the 

 

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 (Pa. 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 

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 appellant.

(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.

(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 the 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 

seeking 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 property. 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 without 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 variance does not differ from that necessary to obtain a permanent variance. We 

agree. Here, the 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 minimum 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, the Board implied in its decision that temporary variances are 

not subject to the remaining variance criteria set forth in Section 910.2(a) of the MPC 

and Section 1307.08(a) of the City’s Zoning Code. 

Based upon the authority the Board cited in support of its decision, there 

is no question that time-limited variances are viable remedies that have been 

 

5 During oral argument before this Court, the Board’s counsel 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 Board of Adjustment, 657 A.2d 63 (Pa. Cmwlth. 1995); 

Gish v. Exley, 34 A.2d 925 (Pa. Super. 1923). However, the Board’s cited cases do 

not excuse the Board from insuring that temporary variances meet the MPC’s and the 

Zoning Code’s traditional variance criteria. 

Specifically, in 1916 Delaware Tavern, the trial court rescinded a 

temporary variance issued to 1916 Delaware Tavern on the basis that the Liquor 

Code’s6comprehensive 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 Zoning Code (which specifies the variance criteria to be considered 

when evaluating traditional variance requests). 

Moreover, in 8131 Roosevelt Corporation, the City of Philadelphia’s 

(Philadelphia) department of licenses and inspections denied 8131 Roosevelt 

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 variances had expired. On appeal, the zoning board of adjustment denied 

a variance, 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 res

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 Amerikohl Mining, Inc. v. Township of Elizabeth Zoning Hearing 

Board (Pa. Cmwlth. No. 2461 C.D. 2010, filed December 9, 2011),7the 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 variance 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, slip op. at 2. On 

appeal, this Court in upholding the zoning hearing board’s denial, stated:

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 must 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 omitted).

 

7

This Court’s unreported memorandum opinions may not be cited as binding precedent; 

however, they 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 commercial 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. No. 2095 C.D. 2008, filed December 24, 2009),9this 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 building 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 requirements.

Finally, rather than eliminate the unnecessary hardship requirement for a 

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

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

Robert S. Ryan, Pennsylvania Zoning Law & Practice, § 6.2.15 (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.Jur.2d Zoning & 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 Procedures.

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 demonstrate unnecessary hardships.
9

(emphasis added).

11

 Neither the Board nor 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.

Coyle also contends that the trial court erred by declaring the variance de 

minimis. 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 Court 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 Board 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, Pennsylvania 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 Township Zoning Hearing Board

(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 Adjustment, . . . 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. 

Slip op. at 3-4 (bold emphasis added). Based 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 minimis 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 23rd day of March, 2016, the Lebanon County Common 

Pleas Court’s April 21, 2015 order is reversed.

___________________________

ANNE E. COVEY, Judge