Land Use and Planning

Permits • Conditions • Variance by Estoppel • Personal Care Home

Steven J., Inc. v. Salisbury Township Zoning Hearing Board, PICS Case No. 12-1674 (C.P. Lehigh Aug. 6, 2012) McGinley, J. (18 pages).

Plaintiff was not entitled to a variance by estoppel from conditions limiting the number of residents at its personal care home and requiring installation of a sprinkler system where plaintiff could not prove that the township actively acquiesced to his failure to fulfill those conditions and where that failure posed a risk to public health and safety. Affirmed.

In 2001, plaintiff received a zoning permit to construct a group home on property it owned in Salisbury Township. In 2003, the township subsequently issued a permit allowing the property to be used as an assisted living facility subject to certain conditions and, later, granted plaintiff a special exception to use the property as a personal care home.

In 2011, the township served a civil enforcement notice on plaintiff for exceeding the allowable number of residents living at the property and failing to install a sprinkler system, in violation of the conditions imposed in 2003. Plaintiff argued that he was entitled to a variance by estoppel from the conditions limiting the number of residents and requiring a sprinkler system. The Salisbury Zoning Hearing Board denied plaintiff’s request.

The court affirmed the board’s decision on plaintiff’s appeal. The Commonwealth Court outlined several factors for determining whether a theory of variance by estoppel should apply in Appeal of Crawford, 531 A.2d 865 (Pa. Commw. 1987). Those factors include a long failure by the municipality to enforce the law when it knew or should have known of a violation, whether the landowner has made substantial expenditures in reliance upon his belief that his use was a permitted use and whether the use is a threat to public health or safety.

The court determined that the factors weighed in favor of finding that plaintiff was not entitled to a variance by estoppel. For example, there was no evidence that the township actively agreed to allow the building to operate without a sprinkler system or to increase the number of residents. The board determined that plaintiff’s testimony that a township representative authorized him not to comply with the conditions was not credible, the court observed. And the fact that the building passed a fire inspection did not affect its compliance with conditions imposed separately by the township.

Regarding the expenditures factor, plaintiff acknowledged that it made no expenditures in reliance on its perceived intended use. However, plaintiff argued that the residents would be negatively affected by a denial of the variance because the costs associated with installing a sprinkler system would force the facility to close. The court determined that plaintiff’s argument was not relevant to this factor and, in addition, denial of the variance by estoppel would not impose an unnecessary hardship on plaintiff.

The court also concluded that using the property as a personal care home without a sprinkler system for 24 residents was a threat to public health and safety.