J.A. Ciferno and S.R. Ciferno, h/w v. The ZHB of the Twp. of Rostraver, J.A. Ciferno and S.R. Ciferno, h/w v. The ZHB of the Twp. of Rostraver

Background

John and Sharon Ciferno purchased a B-2 zoned property, regraded a slope (cut/fill) and removed trees; they installed a guard rail but did not follow Rostraver Township’s zoning/grading Ordinance.
The Ordinance limits cut/fill slope steepness to 3H:1V, requires benching, and mandates a soils report certifying stability by a registered professional engineer (or a certified retaining structure plus a four-foot chain‑link fence) for slopes >3H:1V and >6 feet high.
The Township issued a Notice of Violation; the Cifernos sought variances and were granted a continuance to obtain a soils report.
Pa. Soil & Rock prepared a geotechnical report and engineer Kevin Brissette testified the slope’s factor of safety was slightly above 1.3 (a commonly used end-of-construction standard) and thus stable; the written report characterized stability as “short term” and recommended long-term improvements (including benching or monitoring).
The Zoning Hearing Board (Board) found the slope’s grade between 2H:1V and 3H:1V, noted a visible tension crack and other risk factors (removed organics, lack of benching, fill near top), concluded the report’s “short term” certification was not an unequivocal long‑term stability certification required by the Ordinance, and denied variances (including a request to keep the guard rail instead of the chain‑link fence).
The Court of Common Pleas affirmed; the Commonwealth Court likewise affirmed, holding the Board’s interpretation and fact-findings were reasonable and supported by substantial evidence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board imposed an unreasonable slope‑stability standard not in the Ordinance	Ciferno: Ordinance requires only a soils report/certification; Board improperly demanded a particular long‑term safety factor beyond 1.3	Board: Ordinance allows the Board to assess whether the engineer’s certification is an unequivocal long‑term certification; Board reasonably weighed evidence	Held: Board’s interpretation was reasonable and entitled to deference; short‑term certification was insufficient under §195‑70(D) given safety concerns
Whether the Board capriciously disregarded Mr. Brissette’s uncontradicted testimony	Ciferno: Brissette’s testimony unequivocally certified stability; Board improperly rejected it without contrary evidence	Board: Report differed from Brissette’s testimony (noting only short‑term stability); Board weighed credibility and chose the report where it found it more complete	Held: No capricious disregard; Board resolved conflicting evidence and credited the report’s qualifications; substantial evidence supports findings
Whether the Board erred by denying a variance to allow the existing guard rail instead of the required chain‑link fence	Ciferno: Guard rail is adequate in rural context; requiring chain‑link fence is arbitrary and unreasonable	Board: Ordinance plainly requires a 4‑ft chain‑link fence for slopes >6 ft; Cifernos’ hardship is self‑inflicted by performing grading without complying; neighborhood has residential character	Held: Denial affirmed—hardship was self‑inflicted, Cifernos failed to meet variance elements, and Board applied the Ordinance’s plain language
Whether variances from benching and slope requirements should have been granted	Ciferno: Brissette’s testimony showed benching unnecessary and 3H:1V infeasible	Board: Hardship self‑inflicted, no proof of financial detriment, report recommended benching as minimum to comply	Held: To the extent challenged, variances were properly denied because requirements could be met by following report recommendations and hardship was self‑created

Key Cases Cited

Exton Quarries, Inc. v. Zoning Bd. of Adjustment, 228 A.2d 169 (Pa. 1967) (zoning regulations may be strictly construed and serve public safety).
Broussard v. Zoning Bd. of Adjustment of City of Pittsburgh, 907 A.2d 494 (Pa. 2006) (deference to a zoning board’s reasonable interpretation of its ordinance).
Taliaferro v. Darby Township Zoning Hearing Board, 873 A.2d 807 (Pa. Cmwlth. 2005) (zoning board is sole judge of credibility; appellate court should not substitute its judgment).
Zappala Group, Inc. v. Zoning Hearing Bd. of Town of McCandless, 810 A.2d 708 (Pa. Cmwlth. 2002) (slope/graded‑slope variances treated as dimensional variances).