Goldstein v. Zoning Hearing Board of the Township of Lower Merion
2011 Pa. Commw. LEXIS 187
Pa. Commw. Ct.2011Background
- Landowners own 232 Tower Lane in the R-2 district, including a pool house built in 1982 with a 12.5-foot eastern side setback and a main dwelling set back 19.99 feet from the western property line.
- Under Ordinance §155-24D(1), side setback is 12 feet and aggregate side setback is 35 feet, so the pool house violated the 35-foot aggregate by 2.51 feet when built.
- In 2006 Landowners added to the west side of the dwelling, reducing the western setback to 12 feet and the aggregate setback to 24.5 feet, creating an 11.5-foot aggregate shortfall.
- A permit for the addition conditioned removal or Board approval of the pool house; Landowners applied to the Board for a dimensional variance on Oct. 2, 2006 to allow the pool house to remain.
- At the hearing, evidence showed moving the pool house would cost $55,000 and demolishing/rebuilding would cost $95,000; neighbors supported the variance.
- The Board denied the variance on Nov. 9, 2006, finding Landowners failed to prove unnecessary hardship and that any hardship was self-created; Landowners appealed to the trial court, which affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Landowners proved unnecessary hardship under MPC 910.2(a). | Goldsteins argue unique physical conditions exist causing hardship met by Crawford/Hertzberg standards. | Board and Township contend hardship is not unique and is self-created by construction choices. | No unnecessary hardship; hardship self-created; variance denied. |
| Whether the Board applied the proper standard for unnecessary hardship. | Landowners claim Hertzberg/Crawford standards permit variance where reconstruction is extensive. | Board followed MPC § 910.2(a) factors and did not require Crawford-level hardship. | Board properly applied the MPC standard; Crawford/Hertzberg considerations did not compel reversal. |
| Whether the hardship was self-created and thus bars relief. | Denial of variance would require costly relocation or reconstruction, amounting to justified hardship. | Hardship costs are self-created since Landowners knew of the violations when adding the dwelling. | Hardship is self-created; relief denied. |
| Whether the Board erred by not considering potential benefits to neighboring properties. | Variance could be beneficial aesthetically and for privacy; should be weighed against public interest. | Beneficial effects do not override the required showing of unnecessary hardship and public-interest compliance. | No abuse; lack of hardship defeats variance irrespective of possible neighbor benefits. |
Key Cases Cited
- Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983) (unnecessary hardship and public-interest considerations guiding variance decisions)
- Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998) (lesser quantum of hardship proof for dimensional variances; multiple factors may be considered)
- Crawford, 358 Pa. 636, 57 A.2d 862 (1948) (deliberate zoning violations do not excuse relief; extensive reconstruction may establish hardship)
- Davis v. Zoning Board of Adjustment, 78 Pa.Cmwlth. 645, 468 A.2d 1183 (1983) (unnecessary hardship exists when conformance requires extensive demolition/reconstruction)
- Logan Square Neighborhood Association v. Zoning Board of Adjustment of City of Philadelphia, 32 Pa.Cmwlth. 277, 379 A.2d 632 (1977) (more than economic hardship when conformity requires demolition and extensive reconstruction)
- Doris Terry Revocable Living Trust v. Zoning Board of Adjustment of the City of Pittsburgh, 873 A.2d 57 (Pa.Cmwlth.2005) (self-created hardship defeats entitlement to a dimensional variance)
- Appletree Land Development v. Zoning Hearing Board of York Township, 834 A.2d 1214 (Pa.Cmwlth.2003) (self-created, even if slight, defeats entitlement to a variance)