On many occasions, a proposed real estate development or use of land does not strictly comply with all of the provisions of a municipality’s zoning ordinance. In these situations, a developer or landowner may be required to obtain one or several variances from the municipality’s zoning hearing board. Although the proceedings before a zoning hearing board sometimes appear to be informal (especially in the more rural townships and boroughs of central and northern Pennsylvania), the criteria for being granted a variance are strictly defined by statute and many years of Pennsylvania land use jurisprudence. Moreover, an applicant’s appellate rights are limited should the zoning hearing board deny the request.

Variances are, essentially, permitted violations of the zoning ordinance that may be granted by the municipality’s zoning hearing board following a public hearing. Variances are different from other commonly sought zoning relief, such as special exceptions (a permitted land use, but requiring a hearing before the zoning hearing board), conditional uses (a permitted land use, but requiring a hearing before the governing body), curative amendments (a challenge to the validity of a zoning ordinance, often to permit an otherwise prohibited land use), and ordinance text and map amendments (a legislative request to the governing body to amend the text of a zoning ordinance or the zoning map).

Criteria for Granting a Variance

Under the Pennsylvania Municipalities Planning Code (MPC), a zoning hearing board "may grant a variance, provided that all of the following findings are made where relevant in a given case:

  1. 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.
  2. 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 reasonable use of the property.
  3. That such unnecessary hardship has not been created by the appellant.
  4. 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.
  5. 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."

In addition, a zoning hearing board, when granting a variance, may attach reasonable conditions and safeguards that it may deem necessary to implement the purposes of the MPC and the zoning ordinance.

Pennsylvania appellate courts have summarized the variance criteria by stating that a variance should be granted only where it is not contrary to the public interest and where the property involved is subjected to an unnecessary hardship unique or peculiar to itself, and not to general conditions in the neighborhood, which may reflect the unreasonableness of the zoning ordinance. Further, courts have held that zoning hearing boards may only grant variances for reasons that are substantial, serious and compelling. A landowner’s mere economic hardship if not permitted to pursue his plan does not support the grant of a variance.

Use Variances and Dimensional Variances

During the past two decades, Pennsylvania appellate courts have distinguished between requests for use variances and requests for dimensional variances. A use variance is one in which a landowner is permitted to use a property in a manner contrary to the zoning ordinance (i.e., permission to use a property in a residentially zoned district as a factory or shopping mall). Landowners seeking use variances are subjected to the strict "unnecessary hardship" standards and must demonstrate that the property cannot reasonably be used unless the requested variance is granted. Needless to say, the grant of a use variance is rarely justified.

In 1998, the Pennsylvania Supreme Court, in its seminal opinion of Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), announced a less stringent standard for the granting of dimensional variances, which include relief from setback, minimum lot size, and building height requirements. In Hertzberg, the court stated:

[W]e now hold that in determining whether unnecessary hardship has been established, courts should examine whether the variance sought is use or dimensional. To justify the grant of a dimensional variance, courts may consider multiple factors, including the economic detriment to the applicant if the variance is denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood. To hold otherwise would prohibit the rehabilitation of neighborhoods by precluding an applicant who wishes to renovate a building in a blighted area from obtaining the necessary variances.

Pennsylvania appellate courts have been careful not to extend the holding of Hertzberg, stating that while Hertzberg eased the hardship standard borne by those seeking dimensional variances, it did not create "free-fire zones" for which variances could be granted when a party merely articulates a reason that it would be financially hurt if it could not do what it wanted to do with the property.

De Minimis

Variances

Although not statutorily authorized by the MPC, zoning hearing boards may also grant de minimis variances, which are very minor deviations from the dimensional provisions of a zoning ordinance where rigid compliance is not necessary to protect the public concerns inherent in the zoning ordinance. There is no set of criteria upon which de minimis variances are granted; instead, they are evaluated according to the particular circumstances of each request for relief.

Proceedings Before the Zoning Hearing Board and Appeals

The MPC provides that zoning hearing boards have the exclusive jurisdiction to grant variances. While the formal rules of evidence do not apply, an applicant must still create a record during the hearing to establish the necessary criteria to justify the requested variance. In the usual run of cases, this is a landowner’s only opportunity to articulate the reasons for which a variance should be granted, and preparation for the hearing may be paramount to the success of a real estate development project or lease/sale transaction. Although a landowner is permitted to appeal an adverse decision of a zoning hearing board to the court of common pleas (and higher appellate courts thereafter), unless unusual circumstances exist, only the record created before the zoning hearing board will be considered on appeal. In cases in which no additional evidence is received, a zoning hearing board’s decision will be reversed only when it is determined that the zoning hearing board committed a manifest abuse of discretion or an error of law. Further, the business aspects of a development project or transaction depending upon the grant of a variance may not be able to be delayed while an appeal is pursued.