Student House Denied In Lower Merion

BEFORE THE ZONING HEARING BOARD OF LOWER MERION TOWNSHIP, MONTGOMERY COUNTY PENNSYLVANIA _______________________________ APPEAL NO. 4153 _______________________________ IN THE MATTER OF: Phyllis Robinson

: Applicant - Appellant : : 415 Lancaster Avenue : Haverford, PA 19041

MEMORANDUM, OPINION & ORDER Phyllis Robinson (the "Applicant") owns one of the townhouse condominiums (Unit 10) on the property at 415 Lancaster Avenue in Haverford, known as the Haverford Walk Condominiums. In January 2008, the Applicant entered into a lease for the Unit with three Villanova University seniors. Once these students began to occupy the Unit, it became a "student home," subject to a number of special regulations in the Lower Merion Zoning Ordinance.1 One of those regulations requires that the Board grant a special exception for any proposed student home. Code §155-11 S(5). The Applicant did not apply for or obtain the required special exception before allowing the students to occupy her Unit. When the Applicant's failure to obtain approval for the student home was discovered, the Lower Merion Housing Officer issued a notice of violation. [Exhibit T-1] The Applicant then applied to the Board for a "temporary" special exception and variance

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"A living arrangement for students, unrelated by blood, marriage or legal adoption, attending or about to attend a college or university or who are on semester or summer break from studies at a college or university, or any combination of such persons." Code §155-4 B ("Student Home").

to allow the students to remain in the Unit until May 30, 2009 – the end of the school year. The Board held a hearing on the request on October 16, 2008. For the reasons that follow, the requested relief will be denied. A special exception is a use to which an applicant is entitled as a matter of right unless the zoning board determines that the use would adversely affect the community. East Manchester Zoning Hearing Board v. Dallmeyer, 609 A.2d 604 (Pa. Cmwlth. 1992). However, an applicant must first prove not only that the proposed use is of the type permitted by special exception but also that the use complies with all the other criteria in the ordinance that expressly govern such a grant. Id.; see also, Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 589 Pa. 71, 907 A.2d 494 (2006) (conditions for special exception detailed in the ordinance must be found to exist). It is the burden of an applicant to demonstrate full compliance with all the standards and criteria in the ordinance. Elizabethtown/Mt. Joy Associates, LP v. Mount Joy Township Zoning Hearing Board, 934 A.2d 759 (Pa. Cmwlth. 2007). Only after an applicant proves such compliance does the burden shift to the objectors to present evidence that the proposed use will have a detrimental effect on the public health, safety and welfare of the community. Hoppe v. Zoning Hearing Bd. of Portland, 910 A.2d 756 (Pa. Cmwlth. 2006); Appeal of Baird, 537 A.2d 976 (Pa. Cmwlth. 1988); Bray v. Zoning Board of Adjustment, 410 A.2d 909 (Pa. Cmwlth. 1980). In this matter, the Applicant acknowledged that she cannot comply with the 20foot buffer requirement applicable to special exceptions in residential districts. Code §155-

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114 D(2). For that reason, the special exception will be denied.2 The Board, therefore, will not decide the Objectors' claims that the grant of a special exception would cause substantial detrimental effects on the public health, safety and welfare. Recognizing that she cannot provide the 20-foot buffer, the Applicant requested a variance from that requirement. The Municipalities Planning Code requires an applicant for a variance to prove: (1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions; (2) That because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that a variance is needed to enable reasonable use of the property; (3) That unnecessary hardship has not been created by the applicant; (4) That the variance is not detrimental to the public welfare; and (5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue. Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43, 46-47 (1998). Because the buffer requirement is a dimensional restriction, Hertzberg's lesser quantum of hardship evidence applies. Id. Hertzberg, however, does not abrogate the requirement that all five elements for a variance be proven. Nor is Hertzberg a talisman

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The Zoning Officer testified that the Unit meets the separation requirement for student homes. Code §141.3 B. With two deeded parking spaces and the availability for use by Haverford Walk unit owners of one of the 12 unassigned surface parking spaces, the Applicant met the requirement for three off-street parking spaces. Code §155-95 W.

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that sanctifies any request to violate dimensional limitations where personal desires dictate. See, e.g., Township of East Caln v. Zoning Hearing Board of East Caln Township, 915 A.2d 1249 (Pa. Cmwlth. 2007) (reversing grant of dimensional variance) Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103 (Pa. Cmwlth. 2001) (denying dimensional variance); Camp Ramah in the Poconos, Inc. v. Zoning Hearing Board of Worcester Township, 743 A.2d 1019, 1023 (Pa. Cmwlth. 2000) (same). The Applicant in this matter failed to prove all the elements required for a variance. First, she did not show that there are any unique physical conditions on the property or that there is any resulting unnecessary hardship. See, Great Valley School District v. Zoning Hearing Board of East Whiteland Township, 863 A.2d 74 (Pa. Cmwlth. 2004). Second, her Unit has been reasonably used in the past for a single-family dwelling in compliance with the Zoning Ordinance.

That reasonable use forecloses a finding of

unnecessary hardship. Wilson v. Plumstead Township Zoning Hearing Board, 894 A.2d 845 (Pa. Cmwlth. 2006). Third, whatever "hardship" exists was created when the Applicant elected to establish a student home in the Unit, thus triggering the buffer requirement. Code §155-114 D(2); Doris Terry Revocable Living Trust v. Zoning Board of Adjustment of the City of Pittsburgh, 873 A.2d 57 (Pa. Cmwlth. 2005). The Township Commissioners are the persons who draft the Zoning Ordinance. The Board's basic function is to apply the Ordinance as written unless an applicant can establish a recognized right to relief by variance through a showing of unnecessary hardship. If the Board were to grant variances simply to accommodate landowners' personal

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preferences, the Board would be usurping the legislative role of the Commissioners. The Board is unwilling to do that. For all the foregoing reasons, the application for a variance from the buffer requirement will be denied.

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ORDER AND NOW, this 6th day of November, 2008, it is hereby ORDERED that the application of Phyllis Robinson for a special exception under Code §155-11 S(5) to establish a student home in Unit 10 of the Haverford Walk Condominiums at 415 Lancaster Avenue, and for a variance from the buffer requirement of Code §155-114 D(2) is DENIED for the reasons set forth in the foregoing opinion. Chairman Aaron and Members Fox and Brier participating, all voting "aye."

Attest: _________________________________ Michael Wylie Secretary

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