And How Concerned Neighbors Can Force Projects to Stay “Inside the Lines”
With spring and summer construction season around the corner, property owners planning for new construction or alterations should evaluate whether they will need to seek a variance from the restrictions of local ordinances in order to complete their projects as desired. They should be additionally aware of what they will be required to demonstrate in order to successfully obtain the variance from their municipality’s zoning hearing board.
Likewise, if a property owner receives notice that the owner of a nearby parcel is seeking a variance, they should evaluate the proposed changes to the character or use of the property, and should be prepared to attend a hearing and formally object to the application if they do not believe that the variance should be granted.
Seeking a Variance
There are a number of important considerations for any person or business seeking a zoning variance. While this may seem obvious to some, the threshold issue of ownership of the subject property must first be satisfied. The Pennsylvania Municipal Planning Code (MPC) requires that an applicant for a variance be the legal or equitable owner of the property. There are limited instances when a lessee can seek a variance, but this is rare.
This means that the owner must file the application for the zoning variance and must appear at the public hearing to address the application. Owners may either do this on their own or with the assistance of legal counsel. Often, construction contractors offer to “handle” any zoning or permitting issues for a client as part of their pitch to get the contract. While a contractor or design professional can certainly be helpful in assisting with the preparation of the variance application, and may even appear as a witness for the applicant at the zoning board hearing, these individuals cannot stand in the place of the owner, and do not have standing to seek a variance for property they do not own.
An applicant should next consider whether they are seeking a use variance or a dimensional variance. Most people are more familiar with the concept of dimensional variances through common residential and commercial requests, such as a homeowner seeking to build a shed in the required rear-yard setback for a residential district or a business attempting to display a larger sign than the one permitted by a zoning ordinance.
A use variance, on the other hand, involves a request by an owner to use the subject property in a way that is not permitted in the zoning district in which the property is situated. In general, it can be more difficult to obtain a use variance than a dimensional variance, as courts regard use variances as a complete deviation from the strictures of an ordinance.
Whatever the type of variance being sought, the MPC states that a zoning hearing board may grant a request for variance provided that all of the following findings are made where relevant in a given case:
- That there are unique physical circumstances or 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.
- 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.
Establishing each of the above criteria at a zoning hearing presents unique challenges, and an applicant has the burden of demonstrating that all five requirements have been met. Many applicants fail to appreciate the nuances of these requirements. For instance, it is not enough to merely demonstrate that the applicant is experiencing hardship in their attempts to use their property in a particular manner but that the zoning ordinance as currently written is preventing them from doing so.
Rather, they must show that this unnecessary hardship has not been created by the applicant themselves, that it flows from some condition unique to the subject property, and that it does not result merely from the application of the provisions of the controlling ordinance. In other words, an argument of “I need a variance because your ordinance is stopping me from doing what I want to do” is likely to fall on deaf ears before a zoning hearing board.
Notably absent from the above list of criteria for a zoning variance is any mention of real or perceived financial benefit for the municipality, adjacent landowners, or taxpayers at large. Frequently, applicants attempt to appeal to the zoning hearing board with references to “increasing the tax base” or “enhancements that will increase the value of everyone’s property.” Not only are these valuation projections speculative, they are also irrelevant to the standards to be applied by the zoning hearing board. Board members are not stewards of the overall financial wellbeing of the municipalities in which they serve, and are not tasked with weighing the taxation or property valuation implications of the proposed construction or development for which a variance is requested.
A Word About Objectors
Neighbors whose homes or businesses are in the immediate vicinity of the subject property will receive notice that a variance has been requested, and that a hearing has been scheduled before the zoning hearing board. If you receive such a notice, you should carefully review the proposed change in use, or the developmental variance requested. If you believe that the variance should not be permitted, and that it would adversely affect your property or neighborhood, you should plan to appear at the hearing and formally object to your neighbor’s application.
It is important to keep in mind that objecting to a request for a variance means more than simply airing a complaint or concern. Your status as an objector is of legal significance, and conveys standing to you and other objectors to appeal the decision of the zoning hearing board if you are dissatisfied with the outcome. In the same way that an applicant must show how they can meet the criteria under the MPC to obtain a variance, an objector should focus on these same five items and attempt to demonstrate how the application falls short of meeting one or more of the requirements.
Typically, there is a stenographic record of the proceedings being made, and objectors should remember that the testimony and evidence they present at the hearing is every bit as important as the information presented by the applicant. The zoning hearing board solicitor will use excerpts of that record to issue findings of fact and conclusions of law in support of the board’s decision. If the application is approved over objection, the objector may elect to appeal, and will want the record to be as favorable as possible to their position. An objector may want to consider enlisting the help of legal counsel in order to present cogent factual and legal arguments in hopes of preventing approval of a problematic variance request.