BEFORE THE

ZONING HEARING BOARD OF

LOWER MERION TOWNSHIP, MONTGOMERY COUNTY
PENNSYLVANIA

_______________________________

APPEAL NO. 4158

_______________________________

IN THE MATTER OF: : Applicant - Appellant

:
Thomas J. Conway IV : 201 Holland Avenue
: Ardmore, PA 19003

MEMORANDUM, FINDINGS, OPINION & ORDER

Thomas J. Conway, IV (the "Applicant") is one of the owners of the property at

201 Holland Avenue in Ardmore. The property is zoned R-6A Residence and is improved

with a single-family semi-detached dwelling. On September 2, 2008, the Lower Merion

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 dwelling by three Villanova University students to continue.

The Board held a hearing on the applicant's request on November 6, 2008. For

the reasons that follow, the Board denies relief.

The Student Home Ordinance (codified in a number of separate sections of the

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

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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

"at the Board's request," that is insufficient to demonstrate compliance. An applicant

must submit plans that prove that the criteria in the Zoning Ordinance are satisfied.

Testimony that such plans could be provided is insufficient. Elizabethtown/Mt. Joy

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.

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 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

detrimental effects on the public health, safety and welfare.

Recognizing that he cannot meet the specific criteria for a student home on his

property, the Applicant requested a variance from those requirements.

The Municipalities Planning Code requires an applicant for a variance to prove:

(1) That there are unique physical conditions

peculiar to the property and that the unnecessary hardship
is due to those conditions;

(2) That because of the physical conditions, there is

no possibility that the property can be developed in strict
conformity with the zoning ordinance and that a variance is
needed to enable reasonable use of the property;

(3) That unnecessary hardship has not been created

by the applicant;

(4) That the variance is not detrimental to the public

welfare; and

(5) That the variance is the minimum variance that

will afford relief and is the least modification of the
regulation at issue.

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.

2007) (reversing grant of dimensional variance) Cardamone v. Whitpain Township

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

Township, 743 A.2d 1019, 1023 (Pa. Cmwlth. 2000) (same).

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

reasonable use forecloses a finding of unnecessary hardship. Wilson v. Plumstead Township

Zoning Hearing Board, 894 A.2d 845 (Pa. Cmwlth. 2006).

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

Board is unwilling to do that.

For all the foregoing reasons, the application for a variance from the Student Home

Ordinance will be denied.

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 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