E. Eby v. East Earl Twp ZHB (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward Eby, Appellant v. East Earl Township Zoning Hearing Board BEFORE: : : : : : : : No. 1618 C.D. 2007 Argued: April 8, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: July 16, 2008 The Court of Common Pleas of Lancaster County affirmed the order of the Zoning Hearing Board of East Earl Township (Board), which denied an application by Edward Eby for special exception and variances seeking permission to continue to operate a livestock feed mix business on his property. Eby argues that the Board erred in denying a special exception when his business constitutes "a rural accessory business use" permitted in the agricultural zoning district by special exception and in denying variances from zoning ordinance requirements related to the maximum storage area, total floor area, number of non-resident employees and height of non-agricultural accessory structures. Eby owns property located at 519 Quarry Road in East Earl Township (Township) within the agricultural zoning district. The property consists of twenty-nine acres and is currently improved with a residence, barn, shop/office, pole shed and mixing/storage building. In August 2006 Eby filed an application for special exception to continue to use his property for "a mill mixing nutrients formulated as a supplement for livestock feed" as a rural accessory business use, in addition to farming. Reproduced Record (R.R.) at 16a. A "rural accessory business use" is defined as follows: "A business permitted on farmsteads, ¦ or on a non-farm lot within the Agricultural district. The business shall be accessory to the principal use." Section 202 of the East Earl Township Zoning Ordinance (Ordinance) (emphasis added). Section 403.M of the Ordinance permits a rural accessory business use by special exception in the agricultural zoning district "pursuant to standards and criteria as set forth in Articles XIII and XIX ¦." Section 1301.16A.A provides: The following Rural Accessory Business Uses shall be permitted only by Special Exception, with the exception of those listed under farm-related occupations[1] in the Agriculture District, in which case shall be permitted by right and in accordance with Section 16A.A.(3) below. (1) Production of goods for resale at retail or wholesale, excluding the manufacture of tobacco products, chemicals, papers, petroleum or coal products, and primary metal. ¦. (3) Accessory retail and wholesale sales - Retail and wholesale sales of accessory goods relating to the permitted Farm-Related Occupation or Rural Accessory Business Use shall be limited to no more than twentyfive percent (25%) of the total building floor area devoted to business activities excluding storage. (Emphasis added.) Eby also sought variances from Section 1301.16A.A(4)(c) providing that "[a]dditional inside storage and warehousing shall be permitted in the amount of fifty percent (50%) of the area devoted to the business" and setting forth the 1 A "farm-related occupation" is "[a] business accessory to and operated on a farm in accordance with provisions as set forth in Section 1301.16 ¦." Section 202. 2 maximum storage area of 2000 square feet; Section 1301.16A.C(2) limiting the number of non-resident employees to two; and Section 1301.16A.C(5) limiting the total floor area to 4000 square feet. He requested a Board interpretation of Section 404.C imposing no height restriction upon "agricultural structures," claiming that grain storage bins and an auger-bucket elevator used for the feed mix business are agricultural structures subject to no height restriction. Alternatively, Eby sought a variance from Section 404.B, imposing a 24-foot height restriction upon "a nonagricultural accessory structure." Eby raised beef cattle and veal calves and began to operate the feed mix business on the property in 1996 without obtaining the Township's approval. His business involved selecting, weighing and mixing nutritional supplements, such as limestone, salt, yeast, culture, vitamins and minerals, for livestock feed and bagging mixed products. The ingredients used for the operation are delivered to the property by tractor-trailers or bulk feed trucks as often as twice per day. Eby's customers are mostly wholesalers who purchase his products in bulk and pick up eighty to ninety percent of the products on the property. Eby operates the business in an 8448-square-foot mixing/storage building and uses a loading dock, 38-foot grain storage bins and an 85-foot augerbucket elevator attached to the building, a 750-square-foot pole shed for storage and an approximately 392-square-foot area of a shop/office building as an office. Eby works as a full-time employee performing most aspects of the business operation from 6:00 a.m. to 6:00 p.m. Monday through Friday with some activities on Saturday mornings. Eby's wife works part time in the business performing billing/clerical work; his daughter works full time performing office work; and his son works full time mixing ingredients and bagging mixed products. The business 3 employs four additional non-resident, full-time employees. Eby and his son devote 75 percent of their time to the business and 25 percent of their time to farming. Eby testified that it would be difficult to operate the business at another location because of his 14-year-old handicapped son who requires constant family care. The Board denied the request for a special exception, determining that Eby's feed mix business is not a rural accessory business use permitted by special exception under Section 1301.16A.A(1) "because it involves manufacturing and not the production of goods ¦." Board's Decision, Conclusions of Law No. 8; R.R. at 31a. It concluded that even if his operation involved production of goods, it still is not a rural accessory business use because it utilized storage and floor areas greater than the maximum of 2000 square feet and 4000 square feet, respectively, and employed more than the maximum two non-resident employees. The Board noted that Eby essentially was requesting a use variance. Concluding that Eby's request was not for a dimensional variance and that he failed to show unnecessary hardship, the Board denied relief from Sections 1301.16A.A(4)(c), 1301.16A.C(2) and 1301.16A.C(5), and determining that the grain storage bins and auger-bucket elevator are non-agricultural accessory structures subject to the 24-foot height restriction, it denied the requested relief under Section 404.B. In affirming the Board, the trial court determined that Eby's business constituted manufacturing, not production of goods, and that the business failed to comply with Sections 1301.16A.A(4)(c), 1301.16A.C(2) and 1301.16A.C(5) of the Ordinance. The trial court concluded that "[t]hese violations, as well as Eby's need for variances clearly and unambiguously support the Board's decision to deny the special exception use." Trial Court's Opinion, p. 3. As an additional basis for its decision, the trial court concluded that Eby failed to establish that he would suffer 4 unnecessary hardship or that the requested variances were de minimis. Eby argues that the Board erred in denying a special exception when his feed mix business falls within the definition of a rural accessory business use. He interprets "manufacture" as being synonymous with "production of goods" under Section 1301.16A.A(1) because the terms are used interchangeably, and he notes that any ambiguity in the meaning of the undefined term "production of goods" must be construed in his favor and the least restrictive use of the property. Section 603.1 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 48 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10603.1; Isaacs v. Wilkes-Barre City Zoning Hearing Board, 612 A.2d 559 (Pa. Cmwlth. 1992). He asserts that merely mixing edible products to produce different edible products is not manufacturing and that the Board summarily denied special exception relief without an independent determination of whether the requested variances are de minimis. The Township argues that Eby's activities are more intense than a rural accessory business use contemplated in Section 1301.16A and do not conform to the specific, objective requirements and that Eby essentially sought a use variance.2 An applicant for special exception relief must prove that the proposed use is of a type permitted by special exception and that it complies with specific, objective criteria set forth in the zoning ordinance. Agnew v. Bushkill Township 2 The Court's review in zoning cases, where, as here, the trial court did not take additional evidence, is limited to determining whether the zoning hearing board committed an error of law or abuse of discretion. McGonigle v. Lower Heidelberg Township Zoning Hearing Board, 858 A.2d 663 (Pa. Cmwlth. 2004). The board abuses its discretion if its findings are not supported by substantial evidence. Id. Also, a board's interpretation of its own zoning ordinance is entitled to great deference. Arter v. Philadelphia Zoning Board of Adjustment, 916 A.2d 1222 (Pa. Cmwlth.), appeal denied, 594 Pa. 691, 934 A.2d 75 (2007). 5 Zoning Hearing Board, 837 A.2d 634 (Pa. Cmwlth. 2003). The burden then shifts to the objectors to establish that the proposed use will have an adverse effect on the general public. Id. The issue of whether a use falls within a particular category is a question of law subject to the Court's review. Caln Nether Co., L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484 (Pa. Cmwlth. 2004). The term "production of goods" is not defined in the Ordinance. Production generally refers "to the process or act of producing something through physical labor, intellectual effort or through natural processes." Appeal of Harbucks, Inc., 560 A.2d 851, 854 (Pa. Cmwlth. 1989). The Ordinance defines "manufacturing" as "[t]he processing and/or converting of raw unfinished or finished materials or products, or of any combination, into an article or substance of a different character, or for use for a different purpose ¦." (Emphasis added.) Eby's business involves mixing of nutritional supplements for cattle feed, and its products still maintain the same character of cattle feed, which may support Eby's argument that his business is not manufacturing. It is unnecessary to decide, however, whether the operation constitutes production of goods or manufacturing to determine the outcome. Under the rural accessory business use definition, the business must "be accessory to the principal use" permitted in the agricultural zoning district. Section 202. The ingredients used in the feed mix operation are not produced in Eby's farmland. Rather, they are delivered by trucks as often as twice per day. Eby admitted that he and his family devote 75 percent of their time to the business; hence, the business activities on the property are not an accessory to the principal use of farming. Also, the business operation failed to meet specific, objective standards related to maximum storage and floor areas and the number of non-resident employees, and Eby does 6 not challenge the Board's finding that the 38-foot grain storage bins and the 85-foot auger-bucket elevator used for the feed mix operation are non-agricultural accessory structures subject to the 24-foot height restriction under Section 404.B. Based on this record the Board was correct in denying special exception relief.3 Eby next argues that the Board should have decided not only whether the requested variances were de minimis but also whether rigid compliance was needed to preserve the public interests. He states that he "appears to satisfy" the requirements for granting variances "given both the hardship created by his unique family situation and the character of the surrounding area, typified by farms openly operating observable ancillary businesses." Eby's Brief, p. 18. The Township argues that the variances are not de minimis and that the claimed hardship is related to personal circumstances and not to unique physical conditions of the property. To establish entitlement to a variance an applicant must prove that: (1) the ordinance imposes unnecessary hardship resulting from the unique physical conditions of a property, not from circumstances or conditions generally created by the ordinance in the neighborhood or district in which the property is located; (2) a variance is necessary to enable reasonable use of the property; (3) the asserted hardship was not self-inflicted; (4) a variance will not alter the essential character of the neighborhood, substantially or permanently impair appropriate use or development of adjacent property or be detrimental to public welfare; and (5) the variance represents the minimum variance that will afford relief and least possible modification of the regulation. Section 910.2(a) of the MPC, added by Section 89 3 Although the record may support Eby's contention that his business does not constitute manufacturing, the Court may still affirm the trial court's order if the result is correct and the basis for the trial court's decision is clear on the record. Rabenold v. Zoning Hearing Board of Palmerton, 777 A.2d 1257 (Pa. Cmwlth. 2001). 7 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2(a). The reasons for granting a variance must be substantial, serious and compelling. Valley View Civic Ass n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). An unnecessary hardship exists when physical or topographical characteristics of a property are such that it cannot be used for a permitted purpose or conformed to such purpose only at prohibitive expense or when characteristics of the area are such that the property has either no value or only a distress value for any permitted purpose. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of Pittsburgh, 547 Pa. 163, 689 A.2d 225 (1997). Where an owner seeks a dimensional variance as opposed to a use variance, a relaxed standard for establishing unnecessary hardship applies as the owner seeks only a reasonable adjustment of zoning regulations in order to use property in a manner consistent with applicable regulations. Hertzberg v. Zoning Board of Adjustment of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). The Court held in Society Created to Reduce Urban Blight (SCRUB) v. Zoning Board of Adjustment for Philadelphia, 772 A.2d 1040, 1045 (Pa. Cmwlth. 2001), that "even under the more relaxed Hertzberg standards ¦ the zoning board nonetheless must find some unnecessary hardship arising from the unique physical circumstances or conditions" of the property to grant a variance. (Emphasis added.) It is undisputed that the property is being used for farming. Consequently, variances are not necessary for a reasonable use of the property for purposes permitted in the agricultural zoning district. Eby testified that although moving the feed mix operation to another location is not impossible it "would really radically change [his] family structure" because his 14-year-old handicapped son requires constant care. N.T., p. 21; R.R. 252a. While recognizing the serious 8 personal circumstances facing Eby, the Court nonetheless must apply the settled rule that personal hardship is unrelated to unique physical characteristics of a property and cannot show the requisite unnecessary hardship to justify a variance. Chrin v. Zoning Hearing Board of Nazareth, 561 A.2d 833 (Pa. Cmwlth. 1989). Furthermore, the de minimis variance doctrine is a narrow exception applicable only when a minor deviation is sought from dimensional ordinance requirements and when rigid compliance with the requirements is unnecessary for protection of the public. Appletree Land Dev. v. Zoning Hearing Board of York Township, 834 A.2d 1214 (Pa. Cmwlth. 2003). Eby uses the 8448-squre-foot mixing/storage building for the feed mix operation and cannot meet the maximum storage and total floor areas of 2000 square feet and 4000 square feet, respectively. The heights of the grain storage bins and the auger-bucket elevator are 38 feet and 85 feet, far exceeding the 24-foot height restrictions, and Eby employs four nonresident employees when the Ordinance permits only two non-resident employees. These deviations are not minor and, as a result, do not justify application of the de minimis variance doctrine. Because the Board committed no error of law or abuse of its discretion in denying relief, the Court accordingly affirms the trial court. DORIS A. SMITH-RIBNER, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Edward Eby, Appellant v. East Earl Township Zoning Hearing Board : : : : : : : No. 1618 C.D. 2007 ORDER AND NOW, this 16th day of July, 2008, the Court affirms the order of the Court of Common Pleas of Lancaster County. DORIS A. SMITH-RIBNER, Judge

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