Opinion
Argued June 8, 1983
August 11, 1983.
Zoning — Variance — De minimus violation.
1. A variance request which fails to meet the requirements for the granting of a variance is improperly granted under the de minimus doctrine when a denial of the variance will not require a building to be moved and when the requested variance, although not substantially expanding an existing nonconforming use, would allow more than double the lot coverage permitted under explicit and objective standards of the applicable ordinance. [321]
Argued June 8, 1983, before Judges WILLIAMS, JR., CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 2193 C.D. 1982, from the Order of the Court of Common Pleas of Northampton County in case of Beatrice King, Leonard Carmel and Sylvia Grace Carmel Jones v. Zoning Hearing Board of the Borough of Nazareth, No. 1982-C-86.
Application for variance to the Zoning Hearing Board of the Borough of Nazareth. Variance granted. Protestants appealed to the Court of Common Pleas of Northampton County. Decision affirmed. FREEDBERG, J. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
F. P. Kimberly McFadden, Ziev, Giobbi McFadden, for appellants.
Donald E. Wieand, Jr., with him Thomas F. Traud, Jr., Roberts, Traud, Wallitsch Corkery, for appellee.
This is an appeal from a decision of the Court of Common Pleas of Northampton County, which affirmed the granting of a variance to the Holy Roman Catholic Church of Nazareth by the Zoning Hearing Board of the Borough of Nazareth on the basis of the de minimis doctrine.
The church sought to build an addition to its existing school building in order to accommodate a kindergarten classroom, special education rooms, and two offices. Although the zoning ordinance establishes maximum building coverage in the church's district at twenty percent of the lot area, the school building presently covers over fifty percent of the lot — apparently as a lawful nonconforming structure erected before the coverage requirement took effect. The proposed addition would increase that coverage to fifty-eight percent.
Section 544 of the Nazareth Borough Zoning Ordinance of 1969.
The parties have limited the precise question before us to whether or not the board erred in granting the variance on de minimis grounds.
The de minimis doctrine is an extremely narrow exception to the heavy burden of proof which a party seeking a variance must normally bear. The courts have applied the rule and allowed a variance in a limited number of cases where the violation of the ordinance was a relatively minor one, and to do otherwise would require the moving of an entire building. The court also followed the de minimis rule in a unique case where rigid compliance with the ordinance was not absolutely necessary to protect the public policy concerns underlying the ordinance.
Crawford Zoning Case, 358 Pa. 636, 57 A.2d 862 (1948); Moyerman v. Glanzberg, 391 Pa. 387, 138 A.2d 681 (1958); Pyzdrowski v. Pittsburgh Board of Adjustment, 437 Pa. 481, 263 A.2d 426 (1970); West Bradford Township v. Evans, 35 Pa. Commw. 167, 384 A.2d 1382 (1978); Marlowe v. Zoning Hearing Board of Haverford Township, 52 Pa. Commw. 224, 415 A.2d 946 (1980).
West Bradford Township v. Evans, 35 Pa. Commw. 167, 384 A.2d 1382 (1978).
The church argues that this is a proper case for the application of the de minimis rule because the proposed addition would cover only eight percent more surface area. The church further contends that moving the kindergarten from its present location in the church basement to the new addition would reduce safety hazards, relieve traffic congestion, and eliminate its current need to heat the entire church building every day to keep the classroom warm.
The facts of this case do not resemble those of the few cases where the court has employed a de minimis analysis. A denial of the variance here will not require the church to move an entire building, and the public interest served by the twenty percent maximum is clearly not served equally well by a building which would cover fifty-eight percent of the lot, more than double the percentage allowed by the ordinance's explicit and objective coverage standard, the validity of which has not been contested. That disparity, measured from the ordinance's twenty percent maximum, is the pertinent one. The eight percent additional departure, beyond the fifty percent nonconforming coverage, is not the crucial measure. The de minimis cases have never used an existing disparity as the point of departure.
Hence, we reverse for error of law.
ORDER
NOW, August 11, 1983, the decision of the Court of Common Pleas of Northampton County, dated August 9, 1982, is reversed.