Court Reinforces High Standard for Both Use and Dimensional Variance Applications

The Legal Intelligencer

(by Anna Z. Skipper and Krista-Ann M. Staley)

In exceptional circumstances, where strict application of the zoning ordinance to a particular parcel would result in an unnecessary hardship, a variance acts as a “relief valve;” it allows a deviation from the strict terms of a zoning ordinance to permit the owner’s reasonable use of the property.

While landowners have a constitutionally protected right to use and enjoy their property as they desire, that right is not without legal, or practical, limits. Many development plans, whether for a large shopping complex or a small garden shed, are thwarted by the limitations of the relevant zoning ordinance, the unique physical characteristics of the property, or both. Most of the time, the landowner must simply revert to a plan that fits within the confines of both law and land.  However, in exceptional circumstances, where strict application of the zoning ordinance to a particular parcel would result in an unnecessary hardship, a variance acts as a “relief valve;” it allows a deviation from the strict terms of a zoning ordinance to permit the owner’s reasonable use of the property.

Variance applications fall under the exclusive jurisdiction of the municipality’s zoning hearing board, a quasi-judicial entity appointed by the governing body. A zoning hearing board may grant variances only under exceptional circumstances and an applicant faces a heavy burden of both proof and production. The Municipalities Planning Code (the MPC), 53 P.S. §10910.2(a), which sets forth standards and procedures for zoning in all Pennsylvania municipalities except Pittsburgh and Philadelphia, authorizes a municipality’s zoning hearing board to hear requests for variances based on allegations of unnecessary hardship. A zoning hearing board may grant a variance provided the following findings are made:

  • 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.
  • 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.
  • That such unnecessary hardship has not been created by the appellant.
  • 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.
  • 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.

Recently, in In re Appeal of Ridge Park Civic Association, No 420 C.D. 2019, (Sept. 28, 2020), the Pennsylvania Commonwealth Court reviewed a variance decision, focusing on the requirement that a variance be the least modification possible to afford relief.  The case involved two adjacent parcels in Philadelphia’s residential single-family attached-2 (RSA-2) Zoning District under the Philadelphia Zoning Code (the Zoning Code). The parcels, elongated lots with narrow frontage, backed onto a commercial lot. The applicants proposed consolidating the two parcels, demolishing the existing single-family dwelling on one lot, and erecting nine single-family townhomes in three sets of three. The city’s Department of Licenses and Inspections refused the application because the Zoning Code permitted no more than one principal structure per lot, and prohibited multi-family uses in the RSA-2 District. In addition, it denied the applicants’ requests for variances from the required front setback and maximum curb cut width.

The applicants appealed to the City Zoning Board of Adjustment (the board), arguing the property’s unique characteristics prohibited strict compliance with the terms of the Zoning Code. Specifically, the applicants requested relief in the form of a use variance and several dimensional variances.  A “use” variance authorizes a use of the property otherwise prohibited under the zoning ordinance. In the case at hand, the applicants sought to use property for multi-family development where the Zoning Code only permitted single-family dwellings. A “dimensional” variance, on the other hand, authorizes a property or structure to deviate from the dimensional requirements of the ordinance. Here, the applicants’ requests to decrease the required front-yard setback from 47 to 17 feet and to increase the maximum curb cut width from 12 feet to 16 feet were deviations from the dimensional requirements of the Zoning Code, and thus were requests for dimensional variances.

The applicants presented arguments and evidence to the Board supporting their argument that the strict application of the Zoning Code to the subject property resulted in unnecessary hardship. In particular, the applicants showed the property had severe geotechnical issues that rendered the property challenging for building purposes. The geotechnical characteristics of the site required a pillar-pier foundation system, which would cost around $1.135 million and make single-family development economically unfeasible. The Park Ridge Civic Association (the objectors) opposed the application, arguing the neighborhood consisted of detached single-family homes and the proposed townhome development was “too much density” for the space.  The Board unanimously voted to grant the application.

The trial court affirmed upon appeal without taking additional evidence. Critically, the trial court determined the requirement for a variance to be the minimum necessary to afford relief (a requirement of both the MPC and the Zoning Code) only applied to the dimensional variances. The trial court upheld the determination that the dimensional variances satisfied this requirement. It did not determine whether the variance to allow the multi-family development constituted the minimum variance to afford relief.  The objectors subsequently appealed to Commonwealth Court.

The objectors argued, and the court agreed, the trial court erred by finding the applicants did not need to establish the use variance constituted the minimum variance to afford relief. Although the MPC does not apply to properties within Philadelphia, the court noted the Zoning Code’s variance criteria “essentially mirror” the requirements in the MPC. It also noted the Zoning Code explicitly required both use and dimensional variances to represent the minimum variance to afford relief.

The court noted it is easier to determine whether a dimensional variance is the minimum necessary to afford relief than it is to determine whether a use variance meets this standard. This is because a dimensional variance relates to quantifiable requirements such as distance or size, while a use variance requires a qualitative analysis that is not quantifiable. However, the assessment is not impossible in the context of a use variance. The court pointed to its prior guidance on the matter. As clarified by the court, once an applicant establishes it is not viable to the use a property in strict conformance with the ordinance, it is possible for the applicant to establish the resulting use variance as the minimum variance to afford relief. For example, the applicant can establish that of all the viable alternatives, the proposed use is the least departure from the terms of the ordinance, or the most similar to the uses in the surrounding neighborhood. In addition, a use variance request may have quantifiable factors. Here, the applicants sought to change the intensity of the permitted residential use of the property, not to change its residential nature. Thus, despite being a request for a use variance, the applicants sought, in part, a quantifiable departure from the ordinance, and the board was required to determine the minimum number of units necessary to afford relief.

While the court agreed that the evidence suggested the property could not be viably developed in accordance with the strict terms of the Zoning Code, it refused to affirm the board’s approval of the multi-family use, as no findings had been made as to exactly how many townhomes would be the minimum number needed to afford relief. Furthermore, while the court found the evidence suggested the applicants’ proposed development would require dimensional variances from the front setback and curb cut width requirements, the applicants had similarly failed to establish the dimensional variances requested were the minimum necessary.  Therefore, the Court remanded the case to the trial court to make the appropriate findings as to the minimum variances necessary to make the project viable.

In re Appeal of Park Ridge Civic Association, reinforces the extremely high burden placed upon applicants for all variances; even where an applicant successfully establishes a reasonable use of the property is not possible under the strict terms of the ordinance, and an unnecessary hardship would occur should those terms be enforced, it must still show the specific relief requested to be the minimum required deviation from those terms.

Krista M. Staley is a shareholder in the public sector services and energy and natural resources groups of the Pittsburgh law firm of Babst Calland Clements & Zomnir. Staley focuses her practice on representation of diverse private and public sector clients on land use and other local regulatory matters. Anna Z. Skipper is an associate in the firm’s public sector services group and focuses her practice on zoning, subdivision, land development, and general municipal matters. Contact them at kstaley@babstcalland.com and askipper@babstcalland.com.

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Reprinted with permission from the September 17, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.