M. & E. McDowell, et al. v. Middletown Twp ZHB, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Melvin & Ellen McDowell and Richard & Leigh Ann Nuttall, Appellants v. Middletown Township Zoning Hearing Board and Santilco, LLC, and Michael & Helen Ciquero BEFORE: : : : : : : : : : No. 21 C.D. 2008 Submitted: April 4, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: May 22, 2008 Melvin and Ellen McDowell and Richard and Leigh Ann Nuttall (hereafter collectively referred to as Appellants) appeal from an order of the Court of Common Pleas of Bucks County (trial court), affirming the decision of the Middletown Township Zoning Hearing Board (Board) which granted a variance to Santilco, LLC (Santilco) to permit construction of a single family detached dwelling with less than the required building envelope square footage. We now affirm. The subject property is a vacant lot fronting on Deer Road, at the northwest corner of Eagle Lane and Ravine Avenue, in the R-2 residential district of Middletown Township (Township), Bucks County, Pennsylvania. The lot is located adjacent to Idlewood Estates, a residential development of single family homes. Appellants Melvin and Ellen McDowell own and reside at 714 Eagle Lane, Langhorne, Middletown Township, Bucks County, Pennsylvania, which is within a direct line of sight of the subject property. Appellants Richard and Leigh Ann Nuttall own and reside at 614 Eagle Lane, Langhorne, Middletown Township, Bucks County, Pennsylvania, which is immediately adjacent to the subject property. Michael and Helen Ciquero (the Ciqueros) are the title owners of the subject property. Santilco is the contingent purchaser of the subject property pursuant to a valid agreement of sale which it entered into with the Ciqueros, on December 11, 2006.1 Santilco sought to construct a two-story, single-family home on the property, a permitted use in the R-2 residential district where it is located. Santilco filed an application with the Board seeking a certificate of nonconformance pursuant to Section 2803 of the Middletown Township Zoning Ordinance (Ordinance).2 Additionally, Santilco sought variances from certain Sections of the Township s Ordinance to permit a lot area of 6,243.75 square feet instead of the minimum required 10,000 square feet (Section 903.A); to permit a lot width of sixty-seven and a half feet instead of the required eighty feet (Section 903.B); to permit a building coverage in excess of twenty-eight and a quarter percent instead of the maximum permitted twenty percent (Section 903.D); and to permit construction of the home on a lot with a building envelope of 1,806.25 square feet instead of the required 3,500 square feet (Section 2502.2.A). The Board held hearings on Santilco s application during its regularly scheduled meetings on January 24, 2007, and February 28, 2007, and issued its written 1 Mario Santilli is the sole member of Santilco, LLC. 2 This application was never challenged by Appellants. 2 decision on March 16, 2007.3 The Board issued Santilco a certificate of noncompliance with respect to the width and area of the subject lot. Additionally, the Board approved Santilco s request for a variance from the building envelope requirement but denied Santilco s request for a variance from the building coverage requirement. Both Santilco and Appellants appealed the Board s decision to the trial court.4 Santilco argued that the Board erred when it denied its request for a variance from the building coverage requirement because the variance it sought was de minimis as it only deviated from the maximum building coverage requirement under the Ordinance by less than six percent. Santilco also argued that because the subject property lot was undersized, it could not support any reasonable residential use without the granting of the variance, and a smaller sized home, as suggested by the Board, would be of little or no marketability. Appellants alleged that the Board committed numerous errors, including substantive and procedural due process violations, errors of law, and manifest abuses of discretion in granting Santilco s request for a variance relating to the building envelope 3 Between the dates of the Board s hearings on Santilco s application, a dispute arose concerning the property line between the subject property and the adjacent property owned by Appellants Richard and Leigh Ann Nuttall. The matter was resolved by the parties and the lot area of the subject property was reduced from 6,243.75 square feet to 5,838.75 square feet. Therefore, the resulting building envelope was reduced from 1,806.25 square feet to 1,563.65 square feet. Also, due to the resolution of the property line dispute, the proposed footprint dimension was reduced from fortytwo feet in width by forty-two feet in length to forty-two feet in width by thirty-six feet in length. 4 Originally, Appellants and Santilco filed separate appeals from the Board s decision. On June 11, 2007, the parties filed a motion to consolidate with the trial court based on a stipulation of the parties. On June 25, 2007, the trial court granted the motion for consolidation. Also, the Township filed a notice of intervention on April 16, 2007. By letter dated October 11, 2007, Michael J. Savona, Esquire, notified the trial court that the Township would not be filing a separate responsive brief in the matter but indicated that it supported the arguments proffered by Appellants. The Township requested a reversal of the Board s adjudication. 3 square footage requirement.5 Thus, Appellants requested that the trial court reverse the order of the Board in this regard. Without taking any additional testimony or evidence, however, the trial court found that the Board did not abuse its discretion, did not err as a matter of law, and did not violate Appellants due process rights. With respect to the issue of the violation of Appellants due process rights, the trial court held that the Board did not violate Appellants due process rights as to notice because they had ample notice that the issue to be addressed at the hearing was Santilco s application for variances. The trial court concluded that the necessary reductions in the dimensions for Santilco s proposed home were clearly announced at the hearings and could not be equated with the type of complete changes in theory or requests for relief that might have required additional notice. Further, the trial court held that allegations that Appellants due 5 Appellants cited to sixteen alleged errors on the part of Board. Specifically, Appellants alleged that the Board: 1) failed to provide proper notice of the changes in the dimensions in Santilco s application; 2) failed to function as a quasi-judicial body evidenced by remarks at the start of the hearing; 3) applied the wrong burden of proof for the adverse impact issue; 4) granted the variance because one of the member s signatures is absent without explanation, and the signature page was separate from the findings of fact portion; 5) concluded that granting the variance would not have a negative impact on the surrounding properties without substantial evidence; 6) based its conclusions on a faulty finding of fact concerning the dimensions of the lot; 7) sustained an objection to a question inquiring as to the purchase price contained in the agreement of sale; 8) refused to admit evidence of public soil survey records; 9) admitted, over objection, and gave undue weight to evidence that the development consisted of homes having footprints of both more and less than the footprint proposed for the subject property; 10) found that the neighbors evidence of safety issues, increased storm runoff water, parking problems, overcrowding, and aesthetics were of no legal significance; 11) concluded that the subject property was subject to physical circumstances and conditions which created a hardship effectively precluding it from being developed for any permitted use; 12) concluded that the requested relief was necessary; 13) found there was substantial evidence to support such a conclusion; 14) failed to consider if Santilco created the hardship; 15) failed to consider if the variance would have altered the essential character of the neighborhood or substantially impaired the use of adjacent property; and 16) failed to consider the evidence presented by residents that the variance would alter the character and be detrimental to the public welfare. 4 process rights were violated because the Board failed to listen to or consider their testimony lacked merit. The trial court also concluded that Appellant s contentions that their due process rights were violated because the Board s written decision did not include one of the Board members signatures lacked merit because the votes of the Board member s were declared publicly at the conclusion of the testimony and the decision was in accordance with the declared vote. Thus, the trial court ultimately concluded that Appellants constitutional rights were not violated in the proceedings before the Board. As to the issue of adverse impact and lack of evidence to support the Board s conclusion, the error in finding that Santilco proved there would be no adverse impact on the community, and the misplacement of the burden of proof on Appellants, the trial court held that substantial evidence in the record supported the Board s conclusion that this condition was satisfied. The trial court recognized that Santilco s proposed home was a single-family detached dwelling which would be compatible with the character of the existing residential development and that Santilco had presented evidence that the footprint of the proposed home was similar to other homes in the neighborhood. The trial court noted that the Township had not objected to Santilco s application but the neighbors voiced their concerns about increased storm water runoff, parking, overcrowding, and negative impact on property values. The trial court noted that the neighbors concerns were unsubstantiated, and, thus, merely represented their personal opinions. The trial court concluded that the concern about the driveway expressed by Appellant Richard and Leigh Ann Nuttall was unsupported by the record as the proposed construction would not encroach the driveway area. Moreover, the trial court noted that the neighbors objections that the proposed home would be an 5 eyesore were aesthetic considerations, and by law, such aesthetic considerations are not a valid basis for denying a variance requesting to build a home on an undersized lot.6 After consideration of Santilco s evidence and the neighbors objections, the trial court concluded that the Board did not err or abuse its discretion in granting the variance from the building envelope requirement. With respect to the issue of the evidentiary error in denying admission of evidence concerning the purchase price of the lot which resulted in an erroneous finding that the hardship was not self-inflicted, the trial court held that the purchase price was irrelevant because Santilco had only signed an agreement of sale which may have been contingent on the granting of the variances, had not completed the purchase and was not claiming unnecessary hardship because of the purchase price. Additionally, the trial court noted that the Board is empowered by law to exclude irrelevant or immaterial evidence.7 The trial court further concluded that Santilco had sufficiently demonstrated that the hardship was not self-inflicted because it presented evidence that the size of the subject property had remained substantially the same since before the Ordinance was enacted and that the present owners had attempted, but were unsuccessful, to purchase an adjacent parcel of land to expand the size of the lot. With respect to the issue of the Board s alleged error in calculating the size of the lot by not taking into consideration the size of the driveway which encroaches onto the subject property, thereby reducing the total lot area, the trial court noted that to accept Appellants argument would be to merely reinforce the Board s conclusion that a 6 See N. Pugliese, Inc. v. Palmer Township Zoning Hearing Board, 592 A.2d 118 (Pa. Cmwlth. 1991). 7 See Section 908(6) of the Pennyslvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง10908(6). 6 variance had to be granted. The trial court indicated that, in order to comply with the Ordinance, the resulting smaller lot dimension would cause the proposed home to be of such an unreasonably smaller proportion that it would amount to a prohibition of construction on the lot.8 With respect to the issue of the Board s error in admitting and considering evidence of footprints of other homes in the area, the trial court held that such evidence of footprints or building coverage areas of other homes in the neighborhood was necessary in order for Santilco to establish that no adverse impact would occur to the community if his request for a variance was granted. The trial court noted that Appellants themselves had alleged that the proposed home was much smaller than their own homes and would negatively impact the value of their properties. Appellants thereafter filed a notice of appeal with the trial court. On appeal,9 Appellants assert that the Board erred by: applying the wrong burden of proof and failing to cite any evidence to support its conclusion that there would be no adverse impact on the health, safety, or welfare of the community by granting the requested variances; denying admission of the evidence concerning the purchase price of the lot; 8 The trial court noted that in cases of lots of a reduced size, a zoning hearing board is obligated to grant variances as denying the same would be tantamount to prohibiting any construction at all on the lots. Rudd v. Lower Gwynedd Township Zoning Hearing Board, 578 A.2d 59 (Pa. Cmwlth. 1990); Jacquelin v. Horsham Township, 312 A.2d 124 (Pa. Cmwlth. 1973). 9 Our scope of review in land use appeals is well established. Where, as here, a full and complete record was made before the governing body and the lower court takes no additional evidence, our scope of review is limited to determining whether the governing body committed an error of law or abused its discretion. Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa. Cmwlth. 1993), petition for allowance of appeal denied, 538 Pa. 677, 649 A.2d 677 (1994). A conclusion that the governing body abused its discretion may be reached only if its findings of fact are not supported by substantial evidence. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). 7 miscalculating the size of the lot; and admitting and considering evidence of footprints of other homes in the area. Nevertheless, as this Court agrees with the trial court s decision and further concludes that Judge C. Theodore Fritsch s opinion thoroughly discusses and properly disposes of the arguments raised on appeal to this Court, we adopt the analysis in said opinion for purposes of appellate review. Accordingly, we affirm the trial court s order on the basis of the consolidated opinion in Santilco, LLC v. Middletown Township Zoning Hearing Board and Melvin & Ellen McDowell and Richard & Leigh Anne Nuttall v. Middletown Township Zoning Hearing Board, Santilco, LLC, and Michael & Helen Ciquero (Bucks County, No. 07-2776-29, dated December 6, 2007). JOSEPH F. McCLOSKEY, Senior Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Melvin & Ellen McDowell and Richard & Leigh Ann Nuttall, Appellants v. Middletown Township Zoning Hearing Board and Santilco, LLC, and Michael & Helen Ciquero : : : : : : : : : No. 21 C.D. 2008 ORDER AND NOW, this 22nd day of May, 2008, the order of the Middletown Township Zoning Hearing Board is affirmed. This Court hereby adopts the analysis in Judge C. Theodore Fritsch s opinion for the purposes of appellate review and affirms the trial court s order on the basis of the consolidated opinion issued in Santilco, LLC v. Middletown Township Zoning Hearing Board and Melvin & Ellen McDowell and Richard & Leigh Anne Nuttall v. Middletown Township Zoning Hearing Board, Santilco, LLC, and Michael & Helen Ciquero (Bucks County, No. 07-2776-29, dated December 6, 2007). JOSEPH F. McCLOSKEY, Senior Judge
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