Pequea Twp. v. ZHB of Pequea Twp. v. T.W. Schelling
180 A.3d 500
| Pa. Commw. Ct. | 2018Background
- Property owner Thomas Schelling built a second-floor addition over a detached garage in Pequea Township’s Agricultural District, raising the accessory-structure height from 20 to ~28 feet without a building permit.
- Township issued a Notice of Violation; Schelling thereafter applied for a variance (40% height deviation) and a building permit.
- At the Zoning Hearing Board hearing, Schelling testified he relied on the township zoning officer’s advice that no permit was needed, was already well into construction, and could not expand elsewhere due to a pool and setbacks; neighbors did not object.
- The Board granted the variance as de minimis and alternatively under the relaxed Hertzberg standard, finding Schelling incurred financial hardship by relying on the zoning officer’s advice.
- The trial court affirmed the Board. The Commonwealth Court vacated the de minimis affirmation and reversed the dimensional-variance ruling, remanding for additional Board findings and concluding the record lacked substantial evidence of hardship.
Issues
| Issue | Plaintiff's Argument (Pequea Twp.) | Defendant's Argument (Schelling/Board) | Held |
|---|---|---|---|
| Whether a 40% height deviation is de minimis | 40% is not a minor deviation; Board ignored requirement to show deviation is minor and that public interests are preserved | No fixed percentage defines de minimis; size is one factor and Board properly considered neighborhood character, run-off, and lack of objections | Remanded: Court found Board/trial court failed to make necessary findings about comparable structures and whether they were legal/pre-existing; cannot declare 40% de minimis as a rule; remand for specific findings |
| Whether Schelling proved unnecessary hardship for a dimensional variance | No—hardship must relate to physical property; mere desire for more living space and reliance on informal zoning advice do not establish hardship; no evidence of monetary cost to conform | Under Hertzberg’s relaxed standard, financial detriment from good-faith reliance on zoning officer’s advice and costs already incurred justify hardship | Reversed: Court held Board’s finding of hardship was not supported by substantial evidence; reliance on zoning officer advice and unquantified expenses do not satisfy MPC hardship elements; dimensional-variance affirmation reversed |
| Proper standard for hardship (traditional MPC vs. Hertzberg relaxed standard) | Board supplanted MPC requirements and applied its own standard | Hertzberg permits consideration of economic detriment and building-related burdens | Court: Hertzberg relaxes hardship inquiry but does not eliminate MPC requirements; Board failed to apply MPC element that variance must be necessary for reasonable use of the property |
| Whether reliance on zoning officer’s informal advice equates to vested rights or constitutes undue hardship | Township: Informal advice is not equivalent to official municipal action or a permit; cannot create hardship justifying a variance | Schelling/Board: Good-faith reliance produced financial detriment akin to vested-rights situations, supporting relief | Held: Informal advice does not, by itself, establish unnecessary hardship under MPC; vested-rights concept is distinct from variance hardship and was improperly substituted by the Board |
Key Cases Cited
- Swemley v. Zoning Hearing Board of Windsor Township, 698 A.2d 160 (Pa. Cmwlth. 1997) (describes narrow de minimis doctrine—two-part test)
- Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998) (relaxed standard for dimensional-variance hardship—may consider economic detriment)
- West Bradford Township v. Evans, 384 A.2d 1382 (Pa. Cmwlth. 1978) (upheld large variances in unique factual context)
- Leonard v. Zoning Hearing Board of City of Bethlehem, 583 A.2d 11 (Pa. Cmwlth. 1990) (cautions against expanding de minimis and insists burden remains on applicant)
- Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001) (variance not required simply to allow owner to use property exactly as desired)
- Larsen v. Zoning Board of Adjustment of City of Pittsburgh, 672 A.2d 286 (Pa. 1996) (desire for more space does not constitute unnecessary hardship)
- Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791 (Pa. Cmwlth. 1996) (hardship can relate to the building but typically applies where building is blighted or a legal nonconformity)
- Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014) (examples where conversion/rehabilitation imposed prohibitive expense relevant to hardship inquiry)
- Nettleton v. Zoning Board of Adjustment of City of Pittsburgh, 828 A.2d 1033 (Pa. 2003) (if de minimis doctrine applies, no other relief theory required)