Case Summary: Pohlig Builders, LLC v. Zoning Hearing Board of Schuylkill Township – Variance To Allow Steep Slope Disturbance

August 2011Newsletters In the Zone

In Pohlig Builders, LLC v. Zoning Hearing Board of Schuylkill Township, 15 A.3d 563, 2011 WL 2084174, Pa. Cmwlth, March 17, 2011 (No. 782 C.D. 2010), the Commonwealth Court addressed the Schuylkill Township Board of Supervisors’ zoning appeal based on a variance granted to Pohlig Builders (the developers) to disturb an area of steep slopes such that the developers could construct their proposed residential development. The court affirmed the variance, reasoning that because a steep slope variance is not a traditional dimensional variance and is not seeking a use for the property outside of the uses set out in the ordinance, the variance is characterized as a hybrid variance and thus subject to less stringent hardship requirements to obtain a variance.

The developer, the equitable owner of property in Chester County, sought a variance to create a residential development on the subject property. The property was divided into segments by a reservoir owned by Aqua Pa., Inc., a drinking water provider in the township. The only access between the two segments of the property was a strip of land 50 feet wide, which the developer contends is insufficient to support access by a roadway as required for the proposed project. Thus, Aqua and the developer created an easement whereby Aqua would allow the developer to create a bridge and culvert over the reservoir on the property, as well as a roadway, such that the developer could create access between the northern and southern segments of property divided by the reservoir.

The portion of Aqua’s land and reservoir on which the bridge, culvert and roadway would lie was within the township’s Flood Hazard District, which is the subject of the zoning ordinance providing for steep slope regulations to prevent run-off and erosion. Due to these conditions, the developer sought the variance from the zoning hearing board (ZHB) to permit construction of the bridge, culvert and access road on Aqua’s land.

Section 1925 of the zoning ordinance provides, in relevant part,: “[t]here shall be no erection of buildings or streets on land sloping greater than twenty-five feet vertical in one-hundred feet horizontal, or a 25% slope.” Upon hearings with respect to the developer’s variance request, the ZHB granted the developer’s request for the variance from Section 1925 to allow construction of the bridge and culvert on slopes greater than 25 percent. The trial court affirmed the ZHB’s decision with respect to the grant of variance. The township appealed the variance on four grounds, relying on the requirements of a grant of variance set out in Section 910.2 of the Municipalities Planning Code (MPC). First, the township argued the developer failed to demonstrate unnecessary hardship based on the physical conditions of the property. Next, the township asserted because there was no unnecessary hardship, the developer could make reasonable use of the property without the variance on the northern end of the property alone and thus should not be entitled to extraordinary grant of variance relief. Third, the township argued the only hardship the developer would face would be financial, which is insufficient to satisfy the hardship criterion provided for in the MPC. Finally, the township argued any hardship suffered by the developer would be self-inflicted, and thus the variance was improperly granted.

On appeal, the Commonwealth Court affirmed the grant of variance. As an initial matter, the Commonwealth Court noted the nature of a steep slope variance is neither a use nor traditional dimensional variance and thus constitutes a hybrid, as determined by the trial court. The court relied on its previous decision in Zappala Group v. Zoning Hearing Board, Town of McCandless, 810 A.2d 708, 711 (Pa.Cmwlth. 2002). There, the court found the stringency of the standard in proving unnecessary hardship for a grant of variance depends on whether use or dimensional variance is sought, and, with respect to steep slopes, because they are not traditional dimensional variances such as setbacks and use of the property regarding the steep slopes would not be outside of the uses enumerated in the ordinance, a steep slope constitutes a hybrid. Id. at 711 n.4. Where a steep slope variance constitutes a hybrid, the stringency of the unnecessary hardship is more relaxed. As a result, the court examined the township’s challenges to the grant of variance with this frame of reference.

With respect to the township’s argument that the developer failed to demonstrate unnecessary hardship, the court agreed with the trial court’s determination that the 50-foot strip of land as the sole access between the two segments was sufficient to satisfy the hardship criterion. The court also added that because the developer’s proposed use of the property is permitted as of right and the variance from the steep slope requirement amounts to a hybrid, it allowed for the finding that the hardship criterion was satisfied.

Next, the court rejected the township’s argument that the developer could simply make reasonable use of the property on the northern segment alone and thus not require a variance. The court relied on the trial court’s determination that the area of steep slopes for which the variance was granted only impacts a minor portion of the property, and, if only permitted to build on the northern segment of the property, the developer would be compromised from using two-thirds of the total property. The court also pointed out the township’s argument fails on its face because even if the developer were to solely use the northern segment for the project, it would require subdivision from the southern segment, and since the pre-existing 50-foot access does not comport with the township’s ordinance, it would thus require a variance regardless.

Finally, the court rejected the township’s argument that any hardship suffered by the developer would be self-inflicted because the court stated that pre-purchase knowledge of zoning restrictions, without more such as too great of a purchase price, does not amount to a self-inflicted hardship. Here, there was no evidence presented that the developer planned to pay an excessive price for the property subject to receiving the variance. As a result, the court affirmed all of the trial court’s findings.

Pohlig Builders thus follows Pennsylvania Commonwealth precedent, finding that steep slopes fall within a gray area and are considered a hybrid with respect to a variance request. As a result of the hybrid status, there is a lower standard of proof with respect to unnecessary hardship.

For more information, please contact Robert Gundlach at 215.918.3636 or [email protected].

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