No. 2679 C.D. 2010
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Lester High (High) appeals from an order of the Court of Common Pleas of Chester County (trial court) affirming the decision of the Zoning Hearing Board of Warwick Township (Board) denying his request for a dimensional variance. Finding no error, we affirm.
In 1997, Meredith Winslow (Winslow) purchased a 34.630 acre parcel in Warwick Township (Township) from Glenn and Elizabeth Beener (Beeners). The Beeners had purchased the parcel from the Millers in 1966. When the Millers conveyed the Property to the Beeners, the Warwick Township Zoning Ordinance (Zoning Ordinance) required 50 feet of street frontage for lots for residential uses and agricultural uses not involving livestock. In 1994, however, the Zoning Ordinance was amended to require that each lot have 100 feet of street frontage. (Zoning Ordinance, §403(A)(4), (B)(5).)
The deed from the Beeners to Winslow provides that the property is "the same premises which Winfield Miller and Pearl Miller, his wife, by Deed dated August 1, 1966 and recorded in Chester County ... granted unto Glenn O. Beener and Elizabeth C. Beener, in fee." (Board's Exhibit ZHB-7.)
On February 2, 2006, Winslow submitted a two-lot minor subdivision plan for her property. Lot 1 had 22.046 acres, but because it only had 81.94 feet of frontage, Ronald Palmer (Palmer), an adjoining neighbor, agreed to quit claim 2,590 square feet of his land that fronted on Hopewell Road, which increased the frontage of Lot 1 to 127 feet and made that lot compliant with all the subdivision requirements. Lot 2 had 2.584 acres, a street frontage of 104 feet, and was compliant with all subdivision requirements. A plan note on the subdivision plan recorded with the Office of the Recorder of Deeds of Chester County on May 8, 2007, states, "The purpose of this subdivision is to convey and combine Lot 2 with Parcel 19-02-35.1 owned by Royston & Ronda Munt and Ronald Palmer for agricultural use." (Board's Exhibit T-1.) Conditioned upon theses proposed conveyance, the Township Supervisors approved the plan on May 3, 2007. Neither the conveyance for Lot 1 nor the one for Lot 2 ever took place but, nonetheless, the subdivision plan was recorded.
A municipality may approve a subdivision plan subject to conditions if they are accepted by the applicant. Bonner v. Upper Makefield Township, 597 A.2d 196 (Pa. Cmwlth. 1991). As the trial court indicated, there is no evidence or any argument by High that Winslow did not accept that condition.
Even though none of the conveyances took place, Winslow conveyed Lot 2 to High, who owns a 25.7 acre parcel that adjoins Lot 1 and Lot 2 and borders on St. Peter's Road. As part of the transaction, High was then going to re-convey four acres of Lot 2 to Winslow and merge the remaining 8.5 acres with his parcel. To accomplish the land transfer, High then filed a proposed subdivision plan with the Township to subdivide Lot 2. Even though Lot 2 was the only parcel to be subdivided, the Township Supervisors denied High's subdivision request because the conveyance from Palmer to Winslow to make Lot 1 compliant with the street frontage requirement was a condition upon which the approved 2007 subdivision plan was legally dependent. No appeal was taken from this denial.
There is no mention that Lot 2 was also illegal. Presumably that is so because High's proposed subdivision would merge the 8.5 acres into his own property which also presumably had the requisite frontage on St. Peter's Road. The 4 acres that High re-conveyed to Winslow was presumably going to be merged into Lot 1, which did not have the requisite frontage because of the failure of the Palmer transaction.
Although he had only purchased Lot 2, High then applied to the Board seeking a determination that Lot 1 was nonconforming or, alternatively, seeking a dimensional variance from the street frontage requirements. Before the Board, to establish that Lot 1 was a nonconforming lot prior to 1994 when the Zoning Ordinance only required 50 feet of frontage for uses not involving livestock, High introduced a 1997 deed conveying property from the Beeners to Winslow that stated the Beeners conveyed the same premises to Winslow which Winfield and Pearl Miller conveyed to the Beeners in 1966. High alleged that this established that the same property was owned by the Beeners when the ordinance was amended in 1994. Because Lot 1 has remained unchanged since that time, High alleged that meant the Ordinance made Lot 1 a now-legally nonconforming lot. Testimony was also taken concerning size and shape of the new lot as well as why Palmer did not convey the parcel needed to make Lot 1 compliant with the street frontage.
No one raised the issue of whether High had standing to seek nonconforming status or a variance for Lot 1, property that he did not own.
The Board denied High's appeal. It found that High did not establish that the property was a lawful, dimensionally nonconforming lot because he failed to demonstrate the history of the use and boundaries of Lot 1 to establish nonconformity before the ordinance was amended in 1994. The deed from Beener to Winslow did not establish any nonconformity because the only reference to Hopewell Road was a course and distance of 104 feet 'along and in said road' in the metes and bounds description of a two-acre parcel excepted out of the transfer to Winslow. It denied the requested variance because of the failure of the Palmer transaction that made Lot 1 substandard, not because of any hardship that was unique to land. High appealed to the trial court, which affirmed the Board, and this appeal followed.
Where a trial court takes no additional evidence, our scope of review is limited to determining whether the zoning board abused its discretion or committed an error of law. North Chestnut Hill Neighbors v. Zoning Board of Adjustment of Philadelphia, 928 A.2d 418 (Pa. Cmwlth. 2007). A zoning hearing board abuses its discretion only where its findings are not supported by substantial evidence. Id.; see also 2 Pa. C.S. §754(b). Substantial evidence is such relevant evidence as a reasonable person might consider sufficient to support a conclusion. Chestnut Hill Neighbors, 928 A.2d at 423 n.6. An error of law is committed if a board erroneously interpreted or misapplied the law to the facts in a case. Board of Supervisors of Upper Southampton Township v. Zoning Hearing Board of Upper Southampton Township, 555 A.2d 256 (Pa. Cmwlth. 1989).
Raising the same issues that he raised before the Board and the trial court, High again contends that Lot 1 is a lawful, dimensionally nonconforming lot because it had the 50 feet of street frontage needed for residential and agricultural uses without livestock before the Zoning Ordinance was amended to increase the required lot frontage from 50 to 100 feet in 1994. To make out that Lot 1 was a legal, nonconforming use, High had to establish that before the Zoning Ordinance was changed in 1994 to increase street frontage from 50 to 100 feet, dimensional conformity existed with "conclusive proof by way of objective evidence of the precise extent, nature, time of creation and continuation of the alleged [nonconformity]." Jones v. North Huntingdon Township Zoning Hearing Board, 467 A.2d 1206, 1207 (Pa. Cmwlth. 1983) (citations omitted).
A nonconforming lot is "a lot the area or dimension of which was lawful prior to the adoption or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reasons of such adoption or amendment." Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 744, as amended, 53 P.S. §10107. Where a preexisting lot becomes undersized because of a zoning ordinance enactment or amendment, the lot is lawful and nonconforming. Tinicum Township v. Jones, 723 A.2d 1068 (Pa. Cmwlth. 1998); see also Zoning Ordinance, §1912(A) ("All ... lots ... that do not conform to the regulations of the district in which they are located after the effective date of this ordinance shall be regarded as legally non-conforming and may continue"). Once a nonconforming use is established, the use is protected and runs with the land. In re Moyer, 978 A.2d 405 (Pa. Cmwlth. 2009).
When Winslow purchased the parcel in 1997, it was one lot with 81.94 feet of street frontage. That parcel no longer exists because it was subdivided into Lot 1 and Lot 2 in 2007, well after the zoning restriction was imposed. Because Lot 1, which has a different size and shape than the parcel that Winslow purchased in 1997, did not exist before 2007, Lot 1 cannot be considered a non-conforming lot.
High also contends that a dimensional variance should have been granted because Lot 1 is otherwise useless and, as a result, High has suffered hardship because he claims he relied on this subdivision plan when he purchased Lot 2 for $150,000. For several reasons, we reject that contention.
To establish a right to a variance the landowner must show that an unnecessary hardship will result if the variance is denied, (1) due to the unique physical circumstances or conditions of the property; (2) because of such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship is not self-inflicted; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief. Section 910.2 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 89 of the Act of December 21, 1988, P.L. 1329, 53 P.S. §10910.2. Variance relief should be used sparingly, and only under exceptional circumstances. O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A.2d 12 (1969). --------
Any hardship that caused Lot 1 to be deficient in frontage is not due to the vicissitudes of Lot 1, but due to the failure of the Palmer conveyance. Any hardship is also self-inflicted because the recorded subdivision plan shows that the proposed lot width of Lot 1 at the street line was 127 feet. The plan also shows a close-up view of the lot frontage on Hopewell Road and provides for "2,590.20 sq. ft. proposed area for quit claim deed from Palmer to Winslow." (Board's Exhibit T-1.) One purpose of Pennsylvania's recording statute is to protect purchasers land to ensure that they have notice of its terms and conditions. Poffenberger v. Goldstein, 776 A.2d 1037 (Pa. Cmwlth. 2001).
Ignoring again the question of standing, High had notice of the conditions of the 2007 subdivision plan, so any claim of hardship he may have incurred as a result of Lot 1's lack of compliance was self-imposed by Winslow, who owns Lot 1, and his own failure to ascertain whether those conditions had been fulfilled before purchasing Lot 2. Also, nothing in the record shows that High cannot use Lot 2 if Lot 1 is not granted a variance. All that has occurred as a result of the denial of the variance is that Lot 2 cannot be subdivided so that High can re-convey four acres of Lot 2 to Winslow and merge the remaining 8.5 acres into his St. Peter's Road lot. While he cannot re-convey property, there is nothing to establish that Lot 2 cannot be productively used by merging the entirety of Lot 2 into his property making it, presumably, compliant with the frontage requirements. Because he did not establish an unnecessary hardship unique to the land, the Board properly denied the requested variance.
Accordingly, we affirm the order of the trial court.
DAN PELLEGRINI, President Judge Judge Leadbetter dissents. ORDER
AND NOW, this 21st day of May, 2012, the order of the Court of Common Pleas of Chester County, dated November 18, 2010, is hereby affirmed.
DAN PELLEGRINI, President Judge