In the recent Pennsylvania decision in Gallagher, Jr. v. ZHB
Haverford Township (No. 1788 C.D. 2012, Commonwealth Court of
Pennsylvania, May 21, 2013), the Commonwealth Court affirmed the
Zoning Hearing Board of Haverford Township's (ZHB) grant of a
use variance and a dimensional variance allowing a
zoned-residential property to be used as a day care center. By way
of factual background, the applicants were lessees of property
located at 104 East Township Line Road in Havertown, Pennsylvania
(Property). The Property is zoned in the R-4 low-to medium-density
Residential District under the Zoning Ordinance of the Township of
Haverford (Ordinance). Significantly, while the Property was
initially constructed as a residential home, it was renovated for
commercial use over the years and was even issued a variance in
1975 for use as a group home.
Section 182-206.B(1) sets forth the permitted uses in the R-4
residential district, which include, in relevant part, a day care
for no more than two children not related by blood or marriage to
the residents of the dwelling. See § 182-206.B(1)(d).
Additionally, the Ordinance permitted the placement of signs on
property in the R-4 district, so long as the sign did not exceed
108 square inches. Applicants sought a use variance to open a day
care for up to 36 children on the Property, and a dimensional
variance for their proposed three by five-foot sign. Objectors
appealed stating that the ZHB erred because Applicants failed to
show unnecessary hardship, and the ZHB's determinations were
not supported by substantial evidence.
The Use Variance
The court considers the following factors in determining whether to grant a use variance:
(a) 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 this chapter in
the neighborhood or district in which the property is
located.
(b) 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 this chapter and that the
authorization of a variance is therefore necessary to enable the
reasonable use of the property.
(c) That such unnecessary hardship has not been created by the
appellant.
(d) 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.
(e) 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.
See Section 182-1004.A(1) of the Ordinance; Section 910.2(a) of the
Pennsylvania Municipalities Planning Code (MPC).
In affirming the ZHB's decision to grant the use variance
for Applicants' proposed day care, the court emphasized that
the Property's commercial features, which were added to the
residential structure, amounted to an existing hardship justifying
the variance. Primarily, the court noted that the Applicants had
presented evidence of the Property's fire-tower, three-story
fire escape, two emergency exits per floor, commercial doors with
panic bars and even a nine-car parking lot on the Property.
The court also emphasized the commercial nature of the surrounding
properties to conclude that the variance would not alter the
essential character of the neighborhood, nor impair the use or
development of the surrounding properties. In so doing, the court
took judicial notice of the surrounding commercial properties of a
different municipality, Upper Darby, and the properties in that
ordinance's C-1 Commercial District. Additionally, that there
were other day cares in the surrounding properties added to the
finding that the variance granted would be minimal. The court
therefore rejected the Objector's argument that the ZHB's
findings and conclusions were inadequate, and concluded due to the
Property's various commercial improvements, Applicants did
demonstrate a hardship.
The Dimensional Variance
A dimensional variance is a request to adjust the zoning requirements to use the property in a manner consistent with the existing regulations and involves the same criteria for a use variance. However, in Hertzberg v. Zoning Bd. Of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), the Pennsylvania Supreme Court "set forth a more relaxed standard for establishing unnecessary hardship for a dimensional variance," and allows courts to consider the economic hardship that will result from denial of a variance as well.
The court affirmed the ZHB's grant of the dimensional variance to allow a three-foot by five-foot sign, exceeding the 108 square-inch regulation in Section 182-701(C)(1)(a) of the Ordinance, because a larger sign was necessary to fit the name of the day care, as well as to allow drivers on Township Line Road to adequately identify the day care center. The ZHB heard evidence presented by Applicants that the sign would be large enough to identify the school, but would not be large enough to amount to a distraction. The court found this was particularly appropriate given the amount of similar signs in the surrounding commercial properties, including those located in the Borough of Upper Darby.
The Dissenting Opinion
The dissenting opinion by Senior Judge Collins is of note here because the judge took issue with the consideration of the zoning in a different municipality, citing precedent, Amerikohl Mining Inc., v. Zoning Hearing Bd. Of Wharton Tp., 597 A.2d 219 (Pa. Commw. Ct. 1991), which allowed consideration of adjacent properties located in a different zoning district, but not an adjoining municipality with a completely different zoning ordinance. The dissent emphasized that "[t]he fact that the Borough of Upper Darby has allowed far more commercial development on the other side of Township Line Road cannot be used to undermine the properly enacted zoning ordinance of Haverford Township." The dissent also noted that with respect to the signage, that Upper Darby permits large signs across the street also is irrelevant to allow a sign that is "twenty-times larger than that permitted in Haverford Township's R-4 District...."
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