On May 29, 2015, Commonwealth Court considered whether a mature tree line could constitute a unique physical characteristic for purposes of a dimensional variance analysis.
In connection with the proposed use of property as a horse farm and riding business, Landowner applied for a dimensional variance from the Lower Saucon Township Zoning Ordinance’s requirement that all areas used to corral or pasture horses be at least 100 feet from all lot lines. Numerous pastures proposed for use in connection with the business went into the required setback.
A forty foot wide mature tree line surrounded most of the property and a substantial utility easement bisected the property. Applicant testified that compliance with the 100 foot setback would require either substantial cutting into the tree line or a loss of 25 % of the acreage for pasture use. Removing the trees would increase the project’s budget.
The ZHB approved the dimensional variance, and an objector appealed.
The Court of Common Pleas of Northampton County affirmed, holding that the ZHB’s grant of the requested variance was supported by substantial evidence in the record. The Court of Common Pleas found that the mature tree line and utility easement were unique characteristics of the property creating an unnecessary hardship. The court also found that the proposal maximized the pasture area while minimizing the financial burden and environmental impact of tree removal.
On appeal, Commonwealth Court affirmed. Of interest, the Court used the recent Supreme Court decision in Marshall v. City of Philadelphia, 97 A.3d 323 (Pa. 2014), for the proposition that it must afford “substantial deference” to the findings of the ZHB. Commonwealth Court also noted that the proposed use of the property had, as in Marshall, Community support.
Practitioners have been paying close attention to Commonwealth Court’s use of the Marshall case, which, in some ways, seems to broaden the factors to be considered in a variance analysis. The Tidd case is an example of Commonwealth Court using Marshall to consider a factor not associated with the traditional variance analysis—community support. Tidd also demonstrates that Commonwealth Court will use Marshall to afford great deference to zoning hearing boards.