Plumstead Twp Bd of Supervisors, et al. v. Plumstead Twp ZHB, et al. - 1254 & (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Plumstead Township Board of Supervisors and Thomas Hunter v. Plumstead Township Zoning Hearing Board Appeal of: Plumstead Township Board of Supervisors Plumstead Township Board of Supervisors and Thomas Hunter v. Plumstead Township Zoning Hearing Board Appeal of: Thomas Hunter BEFORE: : : : : : : : : : : : : : : : : : : : No. 1254 C.D. 2007 No. 1318 C.D. 2007 Argued: March 11, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: April 10, 2008 At issue is whether a variance from a forest preservation ordinance is more properly characterized as a dimensional variance or a use variance. The Plumstead Township Zoning Hearing Board (Board) and the Court of Common Pleas of Bucks County (trial court) characterized such a variance as a dimensional variance. A neighboring property owner, Thomas Hunter (Hunter), and the Plumstead Township Board of Supervisors (Township) disagree and contend, in this appeal, that such a variance should be characterized as a use variance. A secondary issue is whether the Board and trial court applied the appropriate standard in evaluating the variance request. The property at issue is a 1.40 gross acre (1.23 acres of base site area), triangular shaped, parcel (Property) that is located in Plumsteadville, Pennsylvania. The Property is 100 percent forested. A stream, designated as Waters of the United States, runs through the Property. Portions of the Property, totaling .42 acres, are classified as either a riparian buffer or a 100year floodplain. The owner of the Property, Pisani Builders Associates, Inc. (Pisani), is a home construction contractor. Pisani purchased the Property in 2003 with the intent of building an office for its contracting business on the Property. The Property is zoned light industrial (LI), and the Township of Plumstead Zoning Ordinance (Ordinance) allows contractor use in the LI district. The front of the Property is bordered by a roadway, Potters Lane. There are two other light industrial uses abutting Potters Lane in the vicinity of the Property. Hunter lives across Potters Lane from the Property. Section 27-2401 of the Ordinance (Section 27-2401) provides for Natural Resource Protection and contains several subsections directed 2 toward protecting various environmental resources. All parties to the present case agree that several of these subsections of Section 27-2401 preclude development in either a riparian buffer or floodplain. The parties also agree that the particular subsection at issue in this case, subsection (9) of Section 272401 requires 60 percent of forested land in an LI district to be preserved. In September 2005, Pisani filed an application with the Board (Application) requesting three variances: (1) a dimensional variance from the rear yard setback of 50 feet required by Section 27-1703 of the Ordinance; (2) a dimensional variance from a minimum lot requirement of 2 acres; and (3) a variance relating to natural resource requirements that required 60 percent of forested area to be preserved. The variances were requested to enable Pisani to construct a one story (60 ft. by 70 ft.) building that would contain a small office, woodworking machinery, an equipment storage area for machinery (large dump truck and excavation equipment), and building materials. Christopher Pisani, Pisani s President, and James Ceglia, Pisani s Civil Engineer, testified on behalf of the variance requests. Hunter appeared before the Board and challenged the Application.1 1 Several other neighbors, who are not part of the present appeal, also objected, raising concerns related to the building size, the truck traffic the use would cause, and the storage of dangerous materials on site. One objection, particularly applicable given the issue before the Court, raised a concern for the impact that the proposed deforestation would have on wildlife living on the Property. 3 The Board granted each of the requested variances. In granting the requested variances, the Board concluded that a variance from the forest preservation requirement Section 27-2401(9) was dimensional in nature because it required a modification of a set number (i.e., at least 60 percent of the Property must remain forested), as opposed to a modification of an outright prohibition of deforestation. The dimensional variance the Board issued allowed for less than 60 percent of the Property to remain forested.2 Hunter appealed to the trial court, which affirmed the Board. Hunter and the Township each filed with this Court3 an appeal of the variance relating to the forest preservation requirement.4 The Board filed notice that it would not be participating in either appeal. Before this Court are two issues: (1) whether a variance from the forest preservation requirement should be considered a use variance or a dimensional variance; and (2) whether the requirements for the appropriate type of variance have been satisfied. As to the first issue, Pisani argues that the adjustment he is seeking falls 2 Although it is clear that the deforestation is in excess of the limitation, there is some ambiguity as to how much of the forest remains. It appears that the variance allows for 61 percent of the Property to be deforested. All parties agree that the Ordinance prohibits development in the riparian buffer and floodplain levels and that, in calculating the deforestation ratio, these areas within the riparian buffers and floodplains are not included. It appears that the Board s variance allows for 91 percent of the trees outside of these buffers to be removed. 3 The Township filed an appeal at docket number 1254 C.D. 2007. Hunter filed an appeal at docket number 1318 C.D. 2007. These cases were consolidated, sua sponte, by Order dated July 25, 2007. 4 Neither appellant challenges the Board s grant of the dimensional variance as to the rear set back requirement and the minimum lot-size requirement. 4 precisely within the ambit of dimensional variances. Pisani argues that the Ordinance does allow a degree of deforestation as of right and that he was merely requesting an adjustment of the regulations in order to utilize the Property in a manner that is consistent with the applicable regulations. (Pisani Br. at 18.) In Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90 (Pa. Cmwlth. 2001), this Court addressed a similar argument in a case that also involved an environmental protection provision, concluding that a variance from the environmental protection provisions of the applicable zoning ordinance was not dimensional in nature. At issue in Segal was an ordinance that precluded the filling of wetlands. The property owners in that case were seeking to expand an existing nursing home use, and they applied for a de minimis, dimensional variance from the wetland filling prohibition so that they could fill in a portion of wetland that was on their property. 771 A.2d at 92. This Court concluded that a dimensional variance was not appropriate because the character of the wetland backfill prohibition provision was substantially different than the character of typical dimensional variances. Id. at 95. The Court noted that [e]xamples of dimensional variances include set backs, lot width, building area and impervious surface limitations and minimum lot areas. Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 6.3.1 (1992). Id. at 94. The Court contrasted the backfill prohibition provision from a dimensional variance, reasoning that: [h]ere, we do not believe that the prohibition against filling wetlands and waters of the United States constitutes a dimensional variance. 5 This prohibition is substantially different in character than a set back. Rather, the Ordinance prohibits the filling of wetlands for other purposes. Id. at 95 (emphasis added). In the present case, as in Segal, we conclude that the protections of Section 27-2401 of the Ordinance are of a different character than the protections which usually require a dimensional variance. First, the plain language of the Ordinance itself, in particular its title, Natural Resource Protection, clearly and unequivocally conveys the intention behind the provision the preservation of environmental resources. (See Ordinance § 27-2401.)5 Second, this intention is evidenced from the wide category of environmental resources protected and the applicability of 5 The primary section of the Ordinance that is at issue in this case is Section 272401, which is titled Natural Resource Protection. It is contained in Part 24 of the Ordinance, which is titled NATURAL RESOURCE PROTECTION STANDARDS, OPEN SPACE AND BUFFERS. This particular subsection provides as follows: 9. Forests. Naturally occurring vegetation characterized by trees whose crowns meet to form a 70%-100% closed canopy shall constitute a forest. Forest must be at least .5 acre in area . . . . **** A. . . . In . . . LI . . . Districts, no more than 40% of forested acres shall be altered, graded, cleared or built upon. The preserved forest area shall remain in its natural condition with the natural groundcover left undisturbed. No portion of any preserved forest shall be utilized to meet minimum lot area requirements for any lot less than 1 acre or be included within the buildable portion of any lot. On lots of 1 acre or larger, there shall be a minimum of 1 contiguous acre not containing any preserved forest area. (Ordinance § 27-2401(9)(A).) 6 the Ordinance to all zoning uses the provisions of the Ordinance provide protections for streams, floodplains, riparian buffers, wetlands, and forests as to [a]ll . . . uses and other activities involving use of land . . . . (Ordinance § 27-2401(1).) Third, the Township, which drafted the Ordinance and is one of the appellants in the present case, has interpreted the forest preservation requirement as necessitating a use variance. Although the Township s position is not determinative of the matter, its interpretation is persuasive and, indeed, coincides with our own interpretation of the Ordinance. We are not persuaded by Pisani s efforts to distinguish Segal by arguing that the prohibition in Segal was absolute and that the Ordinance in the present case involves only a partial prohibition. This Court, in Segal, focused on the character and purpose of the Ordinance, as opposed to whether it involved a degree of protection easily quantified (and thereby easily modified by dimensional variance). Segal, 771 A.2d at 95. Here, as in Segal, Section 27-2401(9) sets absolute standards for protection: [i]n . . . LI . . . Districts, no more than 40% of forested acres shall be altered, graded, cleared or built upon. (Ordinance § 27-2401(9)(A) (emphasis added).)6 We also note that although wetlands are not at issue in the present case, Section 272401(7)(C) prohibits wetland filling, just as the ordinance in Segal had done. 6 All parties, in their respective briefs, agree that the Ordinance s floodplain and riparian buffer restrictions, which uses the commanding language shall in relation to its protections, provide absolute protections from development. (See Ordinance § 272401(5)(B) ( [f]loodplains shall not be altered . . . except in conformance with [Floodplain Overlay District of the Ordinance] ); Ordinance § 27-2401(10) ( [a] riparian buffer [of 75 feet] shall be preserved along all . . . streams . . . . )). 7 This further supports our conclusion that the character of Section 27-2401(9) is comparable to the environmental protection ordinance in Segal, such that, as in Segal a dimensional variance is not the appropriate means for seeking a departure from the Section 27-2401(9) s provisions. Accordingly, we conclude that the forest preservation requirement in Section 27-2401(9) is substantially different in character from lot width, building area, set backs and impervious surface limitations and that any departure from the Section 27-2401(9) requirements must be made by means of a use variance. The second issue before this Court relates to whether the requirements for a variance have been satisfied. Pisani argues that, applying the standard for a dimensional variance from Hertzberg v. Zoning Hearing Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), Pisani has met its burden as to each of the elements for a variance. We find that Pisani s and the trial court s reliance on Hertzberg is misplaced. In Hertzberg, the Supreme Court differentiated between the standards that a zoning board would use in determining whether to grant a use variance or a dimensional variance, particularly as it relates to the element of unnecessary hardship.7 The Supreme Court concluded that the quantum of 7 The requirements for a variance are set forth at Section 910.2(a) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2(a): (1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or 8 proof required to establish unnecessary hardship is indeed lesser when a dimensional variance . . . is sought because the grant of a dimensional variance is of lesser moment than the grant of a use variance, since [a use variance] involves a proposal to use the property in a manner that is wholly outside the zoning regulation. Id. at 257, 258-59, 721 A.2d at 47-48. The Supreme Court thus concluded that certain factors could be used [t]o justify the grant of a dimensional variance, [such as] the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements. Id. at 264, 721 A.2d at 50. These same factors are considered in evaluating a request for a use variance. Id. In the present case, Pisani argued the case as if it was a dimensional variance, contending that while Pisani could construct a building that would 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 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 apellant. 4) That the variance, if authorized, will not alter the essential character of the neighborhood in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to 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. 9 be in full compliance with the Ordinance, it would be economically impractical for him to do so. The Board and trial court similarly evaluated the case as if it were a dimensional variance, using the Hertzberg standard, and relied, in part, on the financial hardship that compliance with the deforestation regulation would impose on Pisani. Given our conclusion that the variance Pisani needs in this case is a use variance, the Board and trial court erred in applying the Hertzberg standard. Because the Board did not apply the correct standard, we must remand the matter for the Board to evaluate the arguments and evidence presented under the appropriate standard. 8 For these reasons, the order of the trial court in this case is vacated, and the matter is remanded to the trial court with instructions to remand the matter to the Board with directions to review the case using the appropriate standard for a use variance. _______________________________ RENÃ E COHN JUBELIRER, Judge 8 For instance, Pisani argues that several aspects of the property weigh in favor of granting a variance from Section 27-2401(9) s requirements, in particular: (1) the Property s irregular (triangular) shape; (2) the large portion of the Property burdened with a 100 year floodplain which requires a 100% protection ratio; and (3) the large portion of the Property burdened with a stream designated as a waters of the United States which is subject to a 100% protection ratio (riparian buffer); and that (4) the Property is completely forested. Pisani notes that these factors prevent him from building many light industrial uses that would otherwise be allowable in particular a: (1) hospital; (2) municipal building; (3) public recreation facility; (4) business park; (5) manufacturing; (6) lumber yard; (7) asphalt plant; (8) ready mix concrete plant; (9) industrial park; and (10) school bus depot. 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Plumstead Township Board of Supervisors and Thomas Hunter v. Plumstead Township Zoning Hearing Board Appeal of: Plumstead Township Board of Supervisors Plumstead Township Board of Supervisors and Thomas Hunter v. Plumstead Township Zoning Hearing Board Appeal of: Thomas Hunter : : : : : : : : : : : : : : : : : : : No. 1254 C.D. 2007 No. 1318 C.D. 2007 ORDER NOW, April 10, 2008, it is hereby ordered that the order of the Court of Common Pleas of Bucks County in the above-captioned matters is vacated and the matter remanded, with instructions to the Court of Common Pleas of Bucks County to remand the matter to the Plumstead Township Zoning Hearing Board with directions to review the case using the appropriate standard for a use variance. Jurisdiction relinquished. _______________________________ RENÃ E COHN JUBELIRER, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.