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201 Holland Avenue in Ardmore. The property is zoned R-6A Residence and is improved
Housing Officer notified the owners in writing that their use of the property as a "student
home" without having first obtained a special exception from the Board constituted a
violation of the Lower Merion Zoning Ordinance.1 The Applicant thereafter filed a
request with the Board for a special exception and variances to allow the occupancy of
The Board held a hearing on the applicant's request on November 6, 2008. For
Zoning Ordinance) requires a property owner to meet certain standards for a special
1
The Zoning Ordinance contains a number of regulations that apply specifically to "student homes" –
defined, essentially, to mean a living arrangement for college students. See Code §155-4 B ("Student
Home")
exception before he can use his property for a student home. The Applicant in this
matter did not obtain that required permission before leasing his property to an individual
who allowed his daughter and two other Villanova students to live in the dwelling. This
is an example of what has become all too common in the Board's experience: a property
owner enters a lease with college students (or a proxy on behalf of college students)
without notifying the Township. The rent charged is ordinarily 2-3 times the prevailing
rent in the neighborhood. When the Township discovers the violation, the owner appeals
to this Board, with a request for a special exception and variances. That stays any
enforcement action. 53 P.S. §10915.1. Even if the Board (as has been nearly uniformly
the case) denies relief, the owner can file an appeal to the Court of Common Pleas of
Montgomery County and request a stay of enforcement action. By the time the appeal
process winds up, the owner has gotten at least a full school year's worth of rent for the
mere cost of a hearing before the Board and an appeal to the Court.
Because the Applicant in this matter has not demonstrated compliance with all the
applicable criteria for a special exception, the Board will deny that relief. 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
2
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 did not demonstrate compliance with the requirement
for three off-street parking spaces. Code §155-95 W. There are only two off-street
spaces on the property. While the Applicant testified that he could provide another space
must submit plans that prove that the criteria in the Zoning Ordinance are satisfied.
Associates, LP, supra. Moreover, the Applicant's own testimony indicated that a portion
of the required parking would have to be in the front yard setback, in violation of Section
114 D(1).
The Applicant also failed to prove compliance with the separation requirement for
student homes. Code §§155-11 T, 155-141.3. In this case, the required separation
distance is 600 feet. The evidence showed that two other student homes (one at 69
Greenfield Avenue and the other at 67 Holland Avenue) are within 600 feet of the
Applicant's property.
3
The Zoning Ordinance provides that uses in residential districts that require a
special exception must also maintain a 20-foot buffer along the full length of each side
yard and rear yard. Code §155-114 D(2). The Applicant testified that there is an
unplanted 15-foot buffer between his property and his neighbor's property. That also
does not comply with the specific criteria in the Zoning Ordinance. See also, Code §155-
4 B ("Buffer Area").
For the foregoing reasons, the special exception will be denied. The Board will not
decide the Objectors' claims that the grant of a special exception would cause substantial
Recognizing that he cannot meet the specific criteria for a student home on his
Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 554 Pa. 249, 721 A.2d 43,
46-47 (1998).
4
Because the requirements for parking, buffer and separation are arguably
dimensional in nature, the Board will apply Hertzberg's lesser quantum of hardship
evidence. Hertzberg, however, does not abrogate the requirement that all five elements
for a variance be proven. Nor is Hertzberg a talisman 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.
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
The Applicant in this matter failed to prove all the elements required for a variance.
First, he 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, his property has been reasonably used in the past for a single-family
dwelling – by the Applicant himself – in compliance with the Zoning Ordinance. That
Third, whatever "hardship" exists (requiring the students to move in the middle of a
school year, for example) was created by the Applicant when he elected to establish a
student home in the Unit without obtaining the required relief from this Board.
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
5
establish a recognized right to relief by variance through a showing of unnecessary hard-
ship. If the Board were to grant variances simply to accommodate landowners' personal
preferences, the Board would be usurping the legislative role of the Commissioners. The
For all the foregoing reasons, the application for a variance from the Student Home
6
ORDER
AND NOW, this 8th day of December, 2008, it is hereby ORDERED that the
application of Thomas J. Conway, IV for a special exception under Code §155-11 S(5) to
establish a student home at 201 Holland Avenue in Ardmore, and for a variance from the
Student Home Ordinance 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