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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Fiechuk,
:

Appellant

:

:

v.

: No. 1092 C.D. 2004

: Submitted: October 4, 2004
Butler Township Zoning Hearing Board :

BEFORE:
HONORABLE DAN PELLEGRINI, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER1
FILED: January 28, 2005

Robert Fiechuk appeals from the order of the Court of Common Pleas
of Butler County (common pleas) that affirmed the decision of the Butler
Township Zoning Hearing Board (ZHB) denying his request for a variance. We
vacate and remand for additional findings.

Fiechuk, who resides at 120 Fiechuk Lane, began, in 1966, to
purchase eight contiguous lots in the Rothen Plan of Lots, a plan recorded in
approximately 1921. He purchased Lots 2, 3, and 4 in 1966, Lots 5, 6, and 7 in
1967, Lot 1 in 1969, and Lot 8 in 1975. Fiechuk testified that he purchased the lots
intending to construct a new residence for himself and his wife and, before he lost
interest in doing so, he put in sewer and water lines. At present, the eight lots are

1 This case was reassigned to the author on December 7, 2004.

unimproved. As illustrated in the diagram below, each lot has frontage on Fiechuk
Lane, a private road previously known as Rothen Street. Lot 1 is located at the
intersection of Ann Street and Fiechuk Lane. Fiechuk's residence is at the opposite
corner of Ann Street and Fiechuk Lane from Lot 1.

ANN STREET

FIECHUK LOT 1

R. FIECHUK RESIDENCE

FIECHUK LOT 2
LOTS OWNED BY OTHERS

FIECHUK LOT 3

FIECHUK LOT 4

FIECHUK LOT 5

FIECHUK LOT 6

FIECHUK LOT 7
FIECHUK LANE

FIECHUK LOT 8

LOTS OWNED BY OTHERS

After agreeing to sell Lots 5 through 8 as a single building lot (shaded
area in diagram), Fiechuk made a written request to the Township Zoning Officer
for a building permit to construct a single family residence. The Zoning Officer
denied the permit on the ground that Section 300-53 of the Butler Township
2

Zoning Ordinance prohibits the issuance of a building permit for property that
lacks frontage on a public street. Section 300-53 of the Ordinance, which was
revised in 1995 by the addition of the frontage requirement, provides as follows:

No building or other structure, whether above, on
or below the ground surface, shall be erected, moved or
added to or structurally altered without a permit therefor
issued by the Zoning Officer or his authorized
representative. Only the owner of the property or of the
structure for which the permit is intended or his
authorized representative shall obtain the building permit.
The owner shall also be made aware by the Zoning
Officer or his authorized representative that no
occupancy permit shall be issued until the Zoning Officer
or his authorized representative is satisfied that existing
streets and public utilities and facilities have been
repaired to their condition prior to construction. Further,
the Zoning Officer or his authorized representative shall
determine prior to issuing the building permit that
stormwater drainage will be handled on the property
containing the construction for which the permit is to be
issued and not permitted to enter the sanitary sewers or to
flow across a public street or adjacent properties. In no
case shall a building permit be issued for any lot which
does not have frontage on a public street.
Zoning Ordinance § 500-53. (Emphasis added). Therefore, the only way that
Fiechuk could build any structure on any part of the property would be if he were
to improve Fiechuk Lane to public road standards and the Township would accept
its dedication to public use. Even assuming that the Township would accept the
dedication, a matter about which the record is silent, Fiechuk presented undisputed
evidence that the cost of upgrading the road to public standards would significantly
exceed the value of the land.

On appeal, the ZHB concluded that Fiechuk had not proven the
elements required under Section 910.2 of the Pennsylvania Municipalities Planning
3

Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by the Act of
December 21, 1988, P.L. 1329, 53 P.S. § 10910.2, and, therefore, was not entitled
to a use variance. On appeal, common pleas affirmed. Thereafter, Fiechuk filed the
present appeal.2

There is no merit in Fiechuk's contention that his ability to develop
his lots for one or more single-family homes is a right ensured under the doctrine
of pre-existing nonconformity. This doctrine has no application in the present case.
Section 107(a) of the MPC defines "nonconforming lot" as "a lot the area or
dimension of which was lawful prior to the adoption or amendments 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." 53 P.S. § 10107(a)
(emphasis added).3 There is no suggestion that the areas and dimensions of
Fiechuk's lots do not conform to the Ordinance. Section 107(a) of the MPC defines
the term "nonconforming use" as

a use, whether of land or of structure, which does
not comply with the applicable use provisions in a zoning
ordinance or amendment heretofore or hereafter enacted,
where such use was lawfully in existence prior to the
enactment of such ordinance or amendment, or prior to
the application of such ordinance or amendment to its
location by reason of annexation.

Id.4 With respect to the use of his lots, Fiechuk admits, in his brief to our court, that
"[n]o use has ever been made of these lots except for fire department practice and a

2 Where the trial court took no additional evidence, our review is limited to determining
whether the zoning board committed an error of law or found facts which are not supported by
substantial evidence. C & M Developers, Inc. v. Bedminster Tp. Zoning Hearing Bd., 573 Pa. 2,
820 A.2d 143 (2002).
3 The Ordinance similarly defines the term "nonconforming lot." See Ordinance § 300-9.
4 The Ordinance similarly defines the term "nonconforming use." Id.
4

period of time when an above ground pool was placed there." Accordingly, there is
no pre-existing nonconforming use entitled to protection under the doctrine and,
more to the point, Fiechuk's proposed use of his property for a single family home
is a permitted use under the current ordinance.

Fiechuk asserts that the ZHB erred in evaluating his right to a variance
under standards applicable to use variances rather than the standard applicable to
dimensional variances under Hertzberg v. Zoning Board of Adjustment of the City
of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998). In Hertzberg, the Supreme Court
explained the difference between use and dimensional variances:

[w]hen seeking a dimensional variance within a
permitted use, the owner is asking only for a reasonable
adjustment of the zoning regulations in order to utilize
the property in a manner consistent with the applicable
regulations. Thus, the grant of a dimensional variance is
of lesser moment than the grant of a use variance, since
the latter involves a proposal to use the property in a
manner that is wholly outside the zoning regulation.
Id. at 257, 721 A.2d at 47. In the present case, the ZHB did not set forth its
rationale for analyzing Fiechuk's request as a use variance rather than dimensional
variance. The trial court opined that because the Ordinance prohibits the issuance
of a building permit where the property at issue does not have frontage on a public
street, Landowner's intended use of the property as a single-family residence is not
a permitted use. While this case well illustrates the occasional difficulty in
applying a strict use versus dimensional dichotomy, we ultimately conclude that
the proper analysis here does not depend on characterizing the variance as either
5

use or dimensional.5 In Hertzberg, the court stated that, whether the variance
sought relates to use or dimensional requirements, the "practically valueless"
standard has been rejected as a requirement for unnecessary hardship. 554 Pa. at
259, 721 A.2d at 48. Therefore, insofar as the ZHB applied this standard, it erred.

Section 910.2 of the MPC, regulates the grant of a variance as
follows:
The [ZHB] may grant a variance, provided that all of the
following findings are made where relevant in a given
case:
(1) That there are unique physical circumstances or
conditions, including irregularity, narrowness or
shallowness of lot size or shape, or exceptional
topographical or other physical 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 applicant.

5 However, in this regard it should be noted that the ZHB did not err in rejecting Fiechuk's
argument that the variance requested here is dimensional in nature and therefore subject to the
more relaxed standard of hardship articulated in Hertzberg. See Zimmerman v. Zoning Bd. of
Adjustment, 540 Pa. 13, 17, 654 A.2d 1054, 1056 (1995). Indeed, dicta in Zimmerman questioned
the authority of the ZHB to grant a variance from this type of requirement. If the ZHB lacks such
power, then the passage of the frontage ordinance amounted to a partial taking of the property at
issue.
6

(4) That the variance, if authorized, 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, if authorized, 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.

In assessing hardship in the present case, the ZHB disregarded
Fiechuk's evidence that the cost of upgrading Fiechuk Lane to public road
standards significantly outweighed the value of the property as a residential lot
because "[e]conomic hardship is not the type of hardship that provides grounds for
a variance." ZHB opinion at 3. As our Supreme Court emphasized in Hertzberg,
such an approach cannot be reconciled with cases such as Allegheny West Civic
Council, Inc. v. Zoning Board of Adjustment of Pittsburgh, 547 Pa. 163, 689 A.2d
225 (1997), which held that prohibitive costs to meet zoning standards may be
sufficient hardship.
The
well-established
general rule that hardship justifying a variance is
not established by the frustration of the landowner's personal financial objectives,
does not make evidence, such as that introduced in the present case showing the
severe financial impediments to using the land, irrelevant. Regulations that result
in compliance costs that make development, for the uses otherwise allowed in the
zoning district, financially prohibitive effectively deprive the landowner of the use
of his land. Halberstadt v. Borough of Nazareth, 546 Pa. 578, 687 A.2d 371
(1997). In general, such a severe impact on an owner's use of his property is
unduly restrictive and not a proper exercise of the police power. In such a case, a
7

variance is necessary to allow reasonable use and avoid a taking. See A&D, Inc. v.
Zoning Hearing Bd. of East Nottingham, 379 A.2d 654, 656 (Pa. Cmwlth. 1977).
See also Stahl v. Upper Southampton Twp. Zoning Hearing Bd., 606 A.2d 960 (Pa.
Cmwlth. 1992) (stating, in case challenging the validity of an ordinance, that
regulations rendering a legitimate use economically infeasible and, thereby,
precluding the use are unconstitutionally exclusionary). Fiechuk's evidence
regarding the economic burden of improving the road pertains to the type of
economic hardship that provides grounds for a variance and, therefore, the ZHB
erred in refusing to consider it.

In the present case, Fiechuk seeks a variance to construct a residence
on four of the contiguous eight lots. Unquestionably, these four lots, with frontage
only along Fiechuk Lane, a private road, lack the requisite frontage on a public
street. Courts have recognized that such a landlocked condition can establish
unnecessary hardship and justify the grant of a variance. See Filanowski v. Zoning
Bd. of Adjustment, 439 Pa. 360, 266 A.2d 670 (1970); Malakoff v. Board of
Adjustment, 456 A.2d 1110 (Pa. Cmwlth. 1983). In the recent case of Neilson v.
Zoning Hearing Board of Mt. Lebanon, 786 A.2d 1049 (Pa. Cmwlth 2001), our
court concluded that the landowner was entitled to a variance from the road
frontage requirement to construct a residence on a lot very similar to that for which
Fiechuk seeks a variance. The lot had frontage only on a private road but was
otherwise a conforming residential lot. However, a critical distinction lies in
Fiechuk's ownership of not only the four lots at issue but also the four contiguous
lots that, as a whole, create a unified parcel with frontage along the length of Lot 1
on Ann Street.
8

The eight lots do not appear to have been maintained in single and
separate ownership at the time the ordinance frontage requirement rendered them
non-conforming. Thus, they have now merged into a single lot,6 the north end of
which has frontage on Ann Street, but the record does not disclose whether Ann
Street is a public or private road. We, therefore, remand for a determination of this
question. If Ann is a public street, then no variance is needed to enable Fiechuk to
make reasonable use of his property; if the merged lot does indeed have access to a
public road, Fiechuk has no right to subdivide off a portion which does not and
then claim a variance for a self-imposed hardship. On the other hand, if Ann Street
is a private roadway, then the entire parcel is without access and Fiechuk is entitled
to a variance under Neilson, as well as such cases as Allegheny West, 547 Pa. at
167, 689 A.2d at 227 and Halberstadt, 546 Pa. at 582, 687 A.2d at 373.7

Accordingly, we vacate and remand for additional proceedings in
conformance with the above decision.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge
Judge Pellegrini concurs in the result only.
Senior Judge Jiuliante Dissents.

6 See Jacquelin v. Zoning Hearing Bd. of Hatboro, 558 A.2d 189, 192 (Pa. Cmwlth. 1989).
Fiechuk does not appear to dispute this conclusion.
7 We note, however, that even if entitled to a variance, they are not entitled to one that
permits them to subdivide the parcel in order to build more than one home along Fiechuk Lane.
As the ZHB correctly recognized, such variance relief would not be the minimum necessary to
afford reasonable use of the property.
9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Fiechuk,
:

Appellant

:

:

v.

: No. 1092 C.D. 2004

:
Butler Township Zoning Hearing Board :

O R D E R

AND NOW, this 28th day of January, 2005, the April 23, 2004
order of the Court of Common Pleas of Butler County in the above captioned
matter is hereby VACATED and this matter is REMANDED for additional
findings in accordance with the foregoing opinion.

Jurisdiction is relinquished.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

Document Outline