## Facts

- Edward Mortimer owned land in New Britain Township, Pennsylvania, zoned suburban residential under the township zoning ordinance.
- Mortimer constructed a single-family house and a detached гараge on the property.
- Years later, Mortimer improved the second floor of the detached garage without obtaining required building permits.
- The improvements created a fully equipped living area, including a bedroom, office, kitchen, living room, dining room, bathroom, laundry room, plumbing, heating, and other utilities.
- Mortimer intended the space to be used as a residence for his niece.
- The township issued a notice of violation stating the work was illegally constructed without permits and that the garage apartment constituted an accessory dwelling that was not allowed in the suburban-residential district.
- Mortimer applied to the New Britain Township Zoning Hearing Board (ZHB) seeking: (a) an interpretation that the ordinance allowed an accessory dwelling use in a detached garage; (b) alternatively, a variance to permit that use; or (c) alternatively, an interpretation that connecting the garage to the house would make the use compliant.
- After a hearing, the ZHB denied the requested interpretation and denied a variance.
- Mortimer appealed; the Court of Common Pleas of Bucks County affirmed, and the Commonwealth Court affirmed in a memorandum decision adopting the trial court’s opinion.

## Issues

1. Whether the zoning ordinance permitted a separate accessory dwelling unit in a detached garage within a suburban-residential zoning district.
2. Whether connecting the detached garage to the principal dwelling would change the ordinance classification so the garage apartment would become permitted.
3. Whether Mortimer proved entitlement to a variance to allow the garage apartment notwithstanding the zoning ordinance and permit violations.

## Decision

- The Commonwealth Court affirmed the order upholding the ZHB’s denial of relief.
- The courts agreed that the garage apartment constituted an accessory dwelling/second dwelling unit that was prohibited in the suburban-residential district under the ordinance as interpreted by the ZHB and trial court.
- The courts rejected Mortimer’s position that attaching the garage to the house would, by itself, bring the apartment into compliance.
- The courts upheld denial of a variance because Mortimer did not satisfy the requirements for variance relief on the record presented.

## Legal Principles

- Zoning ordinances are applied according to their text and definitions; a use not permitted in a zoning district may be treated as prohibited.
- A space outfitted with complete residential facilities (such as kitchen, bathroom, living areas, and utilities) may be treated as a separate dwelling unit based on function, even if located within a structure otherwise accessory to a single-family home.
- A variance requires proof of the elements required by Pennsylvania zoning law, including unnecessary hardship tied to the property and satisfaction of the public-welfare criteria; after-the-fact requests tied to owner conduct may fail these standards.
- On zoning appeals, courts generally defer to supported findings and will not disturb a zoning hearing board’s decision absent an error of law or an abuse of discretion.

## Conclusion

Mortimer’s unpermitted conversion of a detached garage’s second floor into a complete apartment was treated as a prohibited accessory dwelling in the township’s suburban-residential district, and both the trial court and Commonwealth Court upheld the ZHB’s denial of ordinance-interpretation relief and a variance, including Mortimer’s alternative theory that physically connecting the garage to the house would make the use lawful.


Mortimer v. New Britain Township Zoning Hearing Board, 93 A.3d 936 (2014)