D. Soland v. ZHB of E. Bradford Twp. ~ Appeal of: J. Marshall & D. Gans-Marshall

D
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dorothy Soland, Daniel Soland, Mark :
Ouimet, and Anna Ouimet             :
                                    :
      v.                            : No. 825 C.D. 2019
                                    : ARGUED: June 9, 2020
Zoning Hearing Board of East        :
Bradford Township and East Bradford :
Township Board of Supervisors and :
John Marshall and Dara Gans-        :
Marshall                            :
                                    :
East Bradford Township Board of     :
Supervisors                         :
                                    :
      v.                            :
                                    :
East Bradford Township Zoning       :
Hearing Board and John Marshall and :
Dara Gans-Marshall                  :
                                    :
Appeal of: John Marshall and Dara :
Gans-Marshall                       :

BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ELLEN CEISLER, Judge (P)
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                         FILED: July 15, 2020

      John Marshall and Dara Gans-Marshall (collectively, Applicants) appeal from
the June 3, 2019 order of the Court of Common Pleas of Chester County (trial court),
which vacated a decision of the East Bradford Township (Township) Zoning
Hearing Board (ZHB). The ZHB granted Applicants’ request for a variance to
establish a bed and breakfast. The trial court determined that Applicants failed to
comply with the notice requirements set forth in the Pennsylvania Municipalities
Planning Code (MPC)1 and the Township’s Zoning Ordinance (Ordinance). After
careful review, we reverse the trial court and remand this matter to the trial court for
further proceedings.

                           I. Factual and Procedural Background
       Applicants are the owners of real property located in the Township (the
Property), which consists of 10.96 acres and contains a main house and several
auxiliary structures, one of which is an 80-year-old tenant house. Reproduced
Record (R.R.) at 46a. On December 18, 2017, Applicants filed an application with
the ZHB seeking permission to operate a bed and breakfast2 on the Property. Section
115-48.2(A)-(B) of the Ordinance3 permits a bed and breakfast as a conditional use
but requires that it be located within an owner-occupied Class I historic resource4
and consist of at least four guest rooms. Applicants asserted that the main house
on the Property did not have sufficient bedrooms to accommodate their family of
five and four additional guest rooms. R.R. at 46a. Accordingly, Applicants sought
approval from the ZHB to locate the guest rooms in the 80-year-old, 1,500-square-


       1
           Act of July 31, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.

       2
          The Ordinance provides for two types of bed and breakfast establishments, which are
primarily distinguished by the number of guest rooms and baths permitted and amenities provided.
The matter at present involves the establishment of a bed and breakfast estate under Section 115-
48.2 of the Ordinance. For the sake of expediency, we will simply refer to the proposed use as
that of a bed and breakfast.

       3
           East Bradford Township, Pa., Ordinance § 115-48.2(A)-(B) (October 11, 2016).

       4
         Class I historic resources are defined in Section 115-122(A) of the Ordinance and include
buildings listed in the National Register of Historic Places or classified as a certified historic
structure by the Secretary of the United States Department of the Interior.



                                                2
foot “tenant house,” which was another building located on their property.

Id. at 46a,

69a-70a.
       The ZHB scheduled a hearing on Applicants’ variance request for January 29,
2018 (Original Hearing).

Id. at 61a.

By letter dated January 15, 2018, the ZHB
solicitor advised Applicants that they must present testimony or exhibits at the
Original Hearing to “prove that appropriate notice was posted on the [Property] and
that notice was sent to the residents and property owners in accordance with [Section
115-81(A)(2) of the Ordinance].”5 R.R. at 52a.
                                     A. First ZHB Hearing
       At the outset of the Original Hearing, the ZHB’s solicitor noted there appeared
to be no one present in the audience who “would like to be a party to the hearing.”

Id. at 63a-64a.

Thereafter, Applicants presented a list of 41 neighbors within 500
feet of the Property “that were notified by mail” of the Original Hearing date.

Id. at 65a.


Applicants also submitted photographs demonstrating the hearing notice was
posted on the Property.
 Id. at 65a-66a.

       In requesting relief from the owner-occupied restrictions in Section 115-48.2
of the Ordinance, Applicants testified that they have three children and several
members of their extended family visit frequently.
 Id. at 67a-68a. 
Applicants
wanted to locate the guest rooms for the bed and breakfast in the tenant house, so


       5
          Section 115-81(A)(2)(a) of the Ordinance requires that an applicant seeking a variance
must post written notice of the ZHB hearing at least one week prior in a conspicuous location on
the affected tract of land. East Bradford Township, Pa., Ordinance § 115-81(A)(2)(a) (October
11, 2016). The applicant must also mail written notice of the hearing at least 10 days prior to every
residence within 500 feet of the property in question, provided that failure to give notice as required
shall not invalidate any action taken by the ZHB. East Bradford Township, Pa., Ordinance, § 115-
81(A)(2)(b) (October 11, 2016). The applicant shall provide proof of mailing for each notification.

Id.



                                                  3
that 
Applicants’ immediate family and relatives could stay overnight in the main
house, which would remain private.
 Id. A barn 
located in close proximity to the
tenant house would be utilized for “the event portion” of the bed and breakfast.6
 Id.
at 46a. 
The Township zoning officer, Ms. Needles, commented that ordinarily “we
don’t have something like this where there [are] multiple buildings on the property.”

Id. at 71a. 
Ms. Needles confirmed that, with the exception of a garage built in 1992,
the structures on the Property are “historic.”
 Id. at 70a. 
The ZHB solicitor opined
that the presence of other structures on the Property provided a “good reason to
[locate guest rooms] in a different structure.”
 Id. at 72a. 
This represents the sum
total of evidence supporting Applicants’ use variance request.
                                     B. ZHB Decision
       The ZHB granted Applicants’ variance request in a decision and order dated
March 16, 2018. The ZHB noted that while the reasons for granting a variance must
be substantial, serious and compelling, a variance may also be granted “where the
variance requested is minor and rigid compliance is not necessary to protect the
public policy concerns of the [O]rdinance.”
 Id. at 19a. 
(citing Lench v. Zoning Bd.
of Adjustment of Pittsburgh, 
13 A.3d 576 
(Pa. Cmwlth. 2011) (homeowner’s request
for dimensional variance of four inches over the zoning code’s 40-foot height
restriction was de minimis and appropriate)). While the ZHB did not explicitly
characterize the variance granted as de minimis, the case law relied upon by the ZHB
concerned the appropriateness of a de minimis dimensional variance, and the ZHB



       6
         Pursuant to Section 115-48.2(C) of the Ordinance, guest rooms in a bed and breakfast
may not contain cooking facilities. East Bradford Township, Pa., Ordinance § 115-48.2(C)
(October 11, 2016). There was no evidence presented that the tenant house itself would provide
the “breakfast” part of a bed and breakfast. This deficiency was confirmed during oral argument
before this Court on June 9, 2019.


                                              4
made no findings that Applicants met the stricter standards required for a use
variance.
       The ZHB concluded that Applicants’ request to use the separate tenant house
for guest rooms was a reasonable one, based on the fact that the proposed conditional
use of part of the Property as a bed and breakfast was in keeping with “the intent and
spirit of the adaptive reuse of the historic structures upon the Property.” R.R. at 19a-
20a. On this basis, the ZHB concluded that Applicants provided sufficient evidence
to support a variance allowing use of the tenant house as a bed and breakfast.
 Id. at
18a.

                                   C. Trial Court Appeal
       Dorothy and Daniel Soland (Solands), Mark and Anna Ouimet (Ouimets), and
the Township Board of Supervisors (Township Board), (collectively, Appellees),
appealed the ZHB’s decision to the trial court, arguing Applicants failed to comply
with the notice provisions set forth in the MPC7 and the Ordinance. The Solands
and Ouimets (collectively, Neighbors) alleged that, had they received notice of the
Original Hearing, they would have attended to oppose Applicants’ variance request.

Id. Upon motion 
of Neighbors,8 the trial court remanded the matter to the ZHB to

       7
          Section 908(1) of the MPC requires that notice of a zoning hearing board meeting be
made by public notice, by conspicuous posting on the subject property, and by written notice “as
shall be prescribed by ordinance.” 53 P.S. § 10908(1). Public notice is accomplished under
Section 107(a) of the MPC by publication for two successive weeks in a newspaper of general
circulation in the municipality. 53 P.S. § 10107(a). The parties do not dispute that notice of the
Original Hearing was properly posted and published.

       8
           Section 1005-A of the MPC relevantly provides that, where consideration of a land use
appeal requires the presentation of additional evidence, the trial court may remand the case to the
ZHB. 53 P.S. § 11005-A, added by the Act of December 21, 1988, P.L. 1329. Following remand,
if the trial court does not take additional evidence, the findings of the ZHB shall not be disturbed
if supported by substantial evidence.
 Id.



                                                 5
take 
additional evidence on the issue of whether Neighbors, and “other contiguous
neighbors,” received notice of the Original Hearing.
 Id. at 457a-58a. 
Neighbors
further argued that the requirements for a variance had not been met.9
       After remand,10 the ZHB made additional findings of fact, as follows. Section
115-81(A)(2)(b) of the Ordinance required Applicants to mail written notice of the

       9
       The standards for granting a variance under Section 910.2 of the MPC require an applicant
demonstrate the following:

             (1) That there are unique physical circumstances or conditions . . .
             peculiar to the particular property and that the unnecessary hardship
             is due to such conditions and not the circumstances or conditions
             generally created by the provisions of the zoning ordinance in the
             neighborhood or district in which the property is located.

             (2) That because of such physical circumstances or conditions, there
             is no possibility that the property can be developed in strict
             conformity with the provisions of the zoning ordinance and that the
             authorization of a variance is therefore necessary to enable the
             reasonable use of the property.

             (3) That such unnecessary hardship has not been created by the
             appellant.

             (4) That the variance . . . will not alter the essential character of the
             neighborhood or district in which the property is located, nor
             substantially or permanently impair the appropriate use or
             development of adjacent property, nor be detrimental to the public
             welfare.

             (5) That the variance . . . will represent the minimum variance that
             will afford relief and will represent the least modification possible of
             the regulation in issue.

53 P.S. § 10910.2(a)(1)-(5), added by the Act of December 21, 1988, P.L. 1329. Section 115-85
of the Ordinance prescribes the same requirements for a grant of variance relief.

       10
        Additional hearings were held by the ZHB on January 21, 2019, February 21, 2019, and
March 11, 2019.


                                                 6
Original Hearing at least 10 days prior to properties within 500 feet of the Property.


Id. at 471a.


Applicant John Marshall hand-delivered notices of the Original Hearing
to the mailboxes of residences within 500 feet of the Property.
 Id. at 465a. 
The
ZHB found that 24 neighboring property owners, including Neighbors, had not
received written notice by mail nor received actual notice of the Original Hearing.
R.R at 467a-70a. While some neighboring property owners received the Original
Hearing notice, it was not by means of the United States Postal Service (USPS).
 

Id. at 471a.


The number of neighboring property owners who did not receive the
Original Hearing notice, or have actual notice of the hearing, “substantially
outnumber[ed]” those who received notice.
 Id. The ZHB 
found that Applicants
failed to mail written notice of the Original Hearing and failed to provide proof of
mailing, as required by Section 115-81(A)(2)(b) of the Ordinance.
 Id. at 472a.

      Following its review of the ZHB’s supplemental findings and the entire record
certified by the ZHB, the trial court concluded that Applicants failed to provide
proper notice under both the MPC and the Ordinance. The trial court further
concluded that the ZHB lacked jurisdiction to grant Applicants’ request for variance
relief. R.R. at 474a. Accordingly, the trial court vacated the March 16, 2018
decision of the ZHB granting Applicants’ variance relief.
 Id.
      Following their 
appeal to this Court, Applicants filed a Concise Statement of
Errors Complained of on Appeal (Statement of Errors), asserting that the trial court
misapplied and disregarded the notice requirements of the MPC and the Ordinance
and the trial court erred when it remanded the matter to the ZHB for additional
findings of fact. The trial court filed an “Order in Lieu of Rule 1925(a) Opinion,”
see Pa.R.A.P. 1925(a), in which it asserted that Applicants waived the issues set




                                          7
forth in their Statement of Errors, as the issues were not pleaded or argued previously
before the ZHB or the trial court.


                                               II. Issues
         On appeal,11 Applicants assert the trial court erred in vacating the ZHB’s grant
of a variance based on its conclusion that written notice of the Original Hearing was
deficient under the MPC and the Ordinance. Applicants argue the trial court’s
remand order directing the ZHB to take additional evidence on the issue of notice
was likewise in error, as failure to give written notice is not a basis for invalidating
the ZHB’s decision, and the trial court erred in accepting evidence from non-parties
to the appeal. Finally, Applicants argue the trial court erred in finding Applicants
waived the prior two issues.
                                        III.     Discussion
                                            A. Waiver
         We will consider Applicants’ arguments out of turn, as we must first address
whether the trial court erred in concluding Applicants waived the issues raised in
their Statement of Errors, having failed to first raise them before the ZHB or trial
court.
         Applicants allege four errors in their Statement of Errors. The first three relate
directly to the trial court’s June 3, 2019 order reversing the decision of the ZHB.
Applicants first assert that the trial court disregarded the requirements of the MPC,

         11
           In a land use appeal, where the trial court has not taken additional evidence, our scope
of review is limited to determining whether the local zoning board committed an error of law or
an abuse of discretion. Segal v. Zoning Hearing Bd. of Buckingham Twp., 
771 A.2d 90
, 94 n.6
(Pa. Cmwlth. 2001). Where an appeal presents issues of law, including issues of statutory
interpretation, this Court’s scope of review is plenary and our standard of review de novo. 1050
Ashbourne Assocs., LLC v. Cheltenham Twp. Bd. of Comm’rs, 
167 A.3d 828
, 831 n.6 (Pa. Cmwlth.
2017).


                                                 8
the clear language of the Ordinance, and applicable case law. R.R. at 478a. Next,
Applicants argue that the MPC only requires the hearing notice be published and
posted on the Property and there exists no dispute these requirements were met.
 Id.
Third, Applicants 
argue the trial court disregarded the clear language of the
Ordinance that lack of written notice “shall not invalidate any action taken by the
[ZHB].”
 Id. The fourth 
error alleged in Applicants’ Statement of Errors implicates
the trial court’s decision to remand the matter to the ZHB without limiting the
participants to the parties, as only Appellants preserved their rights through the filing
of an appeal to the trial court.
 Id. at 479a. 
Applicants maintain they preserved these
issues at each and every possible step in the proceedings.
      The trial court is correct that a party who fails to raise an issue before a
municipal zoning hearing board is precluded from doing so for the first time on
appeal. Harrisburg Gardens, Inc. v. Susquehanna Twp. Zoning Hearing Bd., 
981
A.2d 405
, 415 (Pa. Cmwlth. 2009). It is not altogether clear at which point in the
litigation the trial court believed Applicants failed to preserve the issues pled herein;
however, it bears mentioning that Applicants prevailed before the ZHB and were
therefore not in a position to appeal that decision. ACS Enters., Inc. v. Norristown
Borough Zoning Hearing Bd., 
659 A.2d 651
, 653 (Pa. Cmwlth. 1995) (only a person
aggrieved by a decision of a zoning hearing board has standing to appeal that
decision). Moreover, Applicants could not raise an objection to the trial court’s June
3, 2019 order prior to the date it issued. Regardless, the trial court’s finding that
Applicants failed to plead or argue the issues in their Statement of Errors before the
ZHB or trial court is contradicted by a simple review of the record.
      Neighbors filed their motion seeking the presentation of additional evidence
on June 15, 2018. R.R. at 432a. Applicants filed an answer on July 2, 2018, arguing



                                           9
that a remand was not appropriate as the notice requirements of the MPC and the
Ordinance were satisfied and Neighbors’ failure to receive mailed notice of the
hearing was not a basis for relief under the Ordinance. R.R. at 443a-45a. During
the first remand hearing on January 21, 2019, Applicants objected to the presentation
of deposition testimony by non-parties to the litigation, as they had not preserved
their appellate interests on the issue of notice. R.R at 347a, 358a, 362a, 366a-67a.
Applicants maintained their objection to the depositions of non-parties at the
subsequent hearing held on March 11, 2019.
 Id. at 384a-85a. 
As to the notice
requirements under the MPC and the Ordinance, Applicants reiterated their position
multiple times at both the January 21, 2019 and the March 11, 2019 ZHB hearings,
as well as in their Proposed Findings of Fact and Conclusions of Law submitted to
the ZHB, that failure to give written notice under the Ordinance could not invalidate
the actions of the ZHB and written notice was not a requirement under the MPC.
 Id.
at 102a-03a, 
107a, 348a, 355a, 404a, 418a-19a, 422a.
      It is clear from the record that, throughout the appeal process, Applicants have
consistently and repeatedly maintained that they complied with the notice
requirements of the MPC and the Ordinance, that a decision of the ZHB cannot be
invalidated by failure to provide written notice, and that the presentation of
additional evidence through the admission of non-party deposition testimony was
inappropriate.   As Applicants adequately preserved the issues raised in their
Statement of Errors, the trial court erred in concluding otherwise.
                                       B. Notice
      Next, we address whether the trial court erred in vacating the ZHB’s March
16, 2018 decision granting variance relief on the basis that Applicants failed to mail




                                         10
written notice of the Original Hearing to properties within 500 feet of the Property,
as required by Section 115-81(A)(2) of the Ordinance.
       Applicants maintain that written notice under the MPC is only required to the
extent dictated by the terms of the Ordinance. Relevantly, Section 115-81(A)(2)(b)
of the Ordinance required Applicants to mail written notice of the Original Hearing
ten days prior to any residence within 500 feet of the Property; however, “failure to
give notice as required by [Section 115-81(A)(2)(b)] shall not invalidate any action
taken by the Board.” East Bradford Township, Pa., Ordinance § 115-48.2(A)(2)
(October 11, 2016) (emphasis added). Applicants argue the emphasized language
above clearly establishes that written notice is not a mandatory requirement that
would impede the ZHB’s jurisdiction to hear and decide a matter. Applicants cite
this Court’s interpretation of similar language in Mitchell v. Zoning Hearing Board
of the Borough of Mount Penn, 
838 A.2d 819 
(Pa. Cmwlth. 2003), as dispositive on
this issue.
       In Mitchell, a school district seeking to repurpose property formerly used for
a high school requested a variance from the off-street parking requirements of the
local 
ordinance. 838 A.2d at 819
, 823. The zoning hearing board (board) granted
the variance request and Jeremy Mitchell, an individual residing near the former high
school, appealed on the basis he did not receive notice of the board’s hearing.
 Id. at
824. 
The parties did not dispute that the board’s hearing notice was published and
posted as required by Section 908(1) of the MPC, and adjacent property owners
received notice of the hearing.
 Id. at 830. 
Mitchell relied on a notice provision in
the local ordinance which directed that, “[w]hen the [board] shall so order,” notice
“shall be mailed” to the owner of every lot on the same street as the subject property
and within 500 feet of the subject property and the owner of every lot within a 250-



                                         11
foot radius of the subject property.
 Id. (emphasis in 
original). The local ordinance
further provided that “failure to give this notice shall not invalidate any action taken
by the board.”
 Id.
      In rejecting 
Mitchell’s argument that notice was defective, this Court noted
the absence in the record of any indication that the board ordered mailing of the
hearing notice.      Moreover, the ordinance itself “unambiguously prohibits
invalidation of the [board’s] decision based on failure to comply with” the notice
provision.
 Id.
      The Township 
Board rejects Mitchell as distinguishable. In Mitchell, written
notice to neighboring property owners was discretionary and only required when
ordered by the board. The Ordinance at issue here contains no such qualification,
and Applicants were required to mail written notice at least ten days prior to the date
of the Original Hearing. Furthermore, Applicants were to “provide proof of mailing
for each notification.” East Bradford Township, Pa., Ordinance § 115-48.2(A)(2)(b)
(October 11, 2016). The Township Board contends that Applicants’ failure to
comply with either requirement violated the due process rights of Neighbors, and
the trial court properly vacated the ZHB’s March 16, 2018 decision.
      Neighbors acknowledge that, pursuant to Section 115-81(A)(2)(b) of the
Ordinance, failure to give written notice shall not invalidate any action taken by the
ZHB. They argue, however, that Section 908(1) of the MPC contains no such excuse
for non-compliance and mandates that written notice “shall be given at such time
and in such manner as shall be prescribed by ordinance . . . . ” 53 P.S. § 10908(1).
In essence, Neighbors contend, the language of Section 908(1) of the MPC
incorporates the written notice requirement in Section 115-81(A)(2)(b) of the




                                          12
Ordinance. Failure to comply with this requirement constitutes a violation of
Section 908(1) of the MPC.
      Neighbors further contend that an applicant is never excused from the mailed
notice provisions of Section 115-81(A)(2)(b), as the applicant is also required to
“provide proof of mailing for each notification.” East Bradford Township, Pa.,
Ordinance § 115-48.2(A)(2)(b) (October 11, 2016). The pertinent language of
Section 115-81(A)(2)(b) merely grants the ZHB the discretion to either postpone or
proceed with a hearing should an applicant fail to provide the required notice.
Should the ZHB proceed, any action taken would not be subject to invalidation on
the basis of lack of notice. Such an exercise of discretion, however, is predicated on
the ZHB knowing whether or not an applicant complied with the written notice
provisions of Section 115-81(A)(2)(b). Neighbors argue that the ZHB was misled
by Applicants’ testimony that all 41 neighboring properties were provided notice of
the Original Hearing “by mail.”
 

Id. at 65a.


      We agree with the Township Board that Mitchell is distinguishable to a point,
as the issuance of written notice in that matter was within the discretion of the
township board of supervisors. Here, the Ordinance mandates an applicant mail
written notice of a ZHB meeting at least ten days prior to all residences within 500
feet of the property at issue and provide proof of mailing for each notification. East
Bradford Township, Pa., Ordinance § 115-48.2(A)(2)(b) (October 11, 2016).
However, as was the case with the ordinance in Mitchell, failure by the applicant to
give notice as required shall not invalidate any action taken by the ZHB.
 Id. This
provision 
acts to excuse Applicants’ failure to strictly comply with the requirement
that they mail written notice of the ZHB hearing and provide proof they mailed the




                                         13
notice. This language is not qualified by the number of individuals who did not
receive notice.
      Neighbors’ argument that Applicants have not complied with Section 908(1)
of the MPC is unpersuasive, as there is no dispute that Applicants complied with that
provision’s publication and posting requirements. Section 908(1) unquestionably
mandates that written notice shall be “as prescribed” by the local ordinance. 53 P.S.
§ 10908(1). To that end, Section 115-81(A)(2)(b) of the Ordinance prescribes a
method for written notice, the failure of which shall not invalidate any action by the
ZHB. The rules of statutory construction are applicable to statutes and ordinances
alike, and one of the primary rules of statutory construction is that an ordinance must
be construed, if possible, to give effect to all of its provisions. In re Thompson, 
896
A.2d 659
, 669 (Pa. Cmwlth. 2006). Appellees have not advanced an argument that
the Ordinance itself is problematic, or that the provisions within Section 115-
81(A)(2)(b) cannot be reconciled. Appellees simply ask this Court to disregard the
provision which does not advance their position.
      The record demonstrates that Applicants complied with the notice
requirements set forth in both the MPC and the Ordinance. The trial court’s decision
to vacate the ZHB for lack of jurisdiction due to lack of notice wholly ignores the
Ordinance’s explicit direction that failure to give written notice shall not invalidate
the action taken by the ZHB. Indeed, the trial court failed to even reference this
language in its June 3, 2019 order reversing the decision of the ZHB and in its
subsequent August 26, 2019 “Order in Lieu of Rule 1925(a) Opinion.” This failure
constitutes an error of law which mandates we reverse the trial court and remand this
matter to the trial court for a determination as to whether the ZHB erred in granting
Applicants’ request for variance relief.



                                           14
       With regard to that issue, we note that, in granting variance relief, the ZHB
relied upon this Court’s decision in Lench12 and characterized the nature of the
variance as de minimis. Critically, before granting the de minimis variance, the ZHB
did not first determine whether Applicants sought relief from the use or dimensional
restrictions imposed by the Ordinance or otherwise apply the standards required for
variance relief. It has long been established that the burden of an applicant seeking
a zoning variance is heavy and such requests should be granted sparingly and only
under exceptional circumstances. Oxford Corp. v. Zoning Hearing Bd. of Borough
of Oxford, 
34 A.3d 286
, 296 (Pa. Cmwlth. 2011). A variance will not be granted
simply because an ordinance deprives the owner of the most lucrative or profitable
uses of the property.
 Id.
       In support 
of their variance request, Applicants testified that they have a large
family and several members visit on a frequent basis. R.R. at 67a-68a. Location of
the guest rooms in the tenant house would allow Applicants’ immediate family and
relatives to stay overnight in the main house.
 Id. While we 
strongly question


       12
            Lench concerned an applicant who sought variance relief from a zoning code’s
dimensional 40-foot height requirement. This Court determined that the variance requested – 4
inches – was de minimis, as it amounted to a .83-percent deviation from the code’s 40-foot height
restriction. 
Lench, 13 A.3d at 582
.

        Application of the de minimis variance doctrine has been exclusively applied in cases
where “only minor deviations from dimensional zoning ordinances have been the basis for the
variance sought.” Coyle v. City of Lebanon Zoning Hearing Bd., 
135 A.3d 240
, 245 (Pa. Cmwlth.
2016) (emphasis added). A dimensional variance involves a request to adjust a zoning ordinance
for purposes of using the property in a manner consistent with the applicable regulations, whereas
a use variance involves a proposal “to use property in a manner that is wholly outside zoning
regulations.” Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 
721 A.2d 43
, 47 (Pa.
1998). The de minimis doctrine has been repeatedly rejected in use variance cases because the
effect of a use variance on the public interest is greater than the effect of a minor deviation from a
dimensional requirement. 
Coyle, 135 A.3d at 246 
(internal citations omitted).



                                                 15
whether this evidence meets the standards for variance relief, we leave that
determination to the trial court.
                                          IV.     Conclusion
       The record demonstrates that Applicants adequately preserved the issues
raised in their Statement of Errors and the trial court erred in concluding otherwise.
The trial court likewise erred when it vacated the ZHB’s March 16, 2018 decision
for lack of jurisdiction on the basis that Applicants failed to comply with the written
notice provisions of the MPC and the Ordinance. Accordingly, we reverse the trial
court and remand this matter to the trial court for a determination as to whether
Applicants established the right to the variance relief granted by the ZHB.13


                                                __________________________________
                                                ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of this case.




       13
          Given our disposition on the first two issues, we need not address the third, although we
note that the decision to take additional evidence under Section 1005-A is a matter within the
discretion of the trial court, and the trial court must hear additional evidence in a zoning case where
the party seeking the hearing demonstrates that the record is incomplete. E. Consolidation and
Distrib. Servs., Inc. v. Bd. of Comm’rs of Hampden Twp., 
701 A.2d 621
, 624 (Pa. Cmwlth. 1997).


                                                 16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dorothy Soland, Daniel Soland, Mark :
Ouimet, and Anna Ouimet             :
                                    :
      v.                            : No. 825 C.D. 2019
                                    :
Zoning Hearing Board of East        :
Bradford Township and East Bradford :
Township Board of Supervisors and :
John Marshall and Dara Gans-        :
Marshall                            :
                                    :
East Bradford Township Board of     :
Supervisors                         :
                                    :
      v.                            :
                                    :
East Bradford Township Zoning       :
Hearing Board and John Marshall and :
Dara Gans-Marshall                  :
                                    :
Appeal of: John Marshall and Dara :
Gans-Marshall                       :

                                      ORDER


      AND NOW, this 15th day of July, 2020, the June 3, 2019 order of the Court
of Common Pleas of Chester County (trial court) is hereby reversed. This matter is
remanded to the trial court for a determination as to whether the East Bradford
Zoning Hearing Board erred in granting variance relief to John Marshall and Dara
Gans-Marshall.
      Jurisdiction is relinquished.

                                       __________________________________
                                       ELLEN CEISLER, Judge

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