Whether you are a major real estate developer ready to build 300 new homes or a homeowner with a quarter-acre property who wants to build a deck in the back yard, there may come a time when you need some sort of zoning relief.
In Pennsylvania, zoning is usually handled at the township or borough level. An agent of the local municipality such as a zoning officer or building inspector may require that the developer/property owner apply for the necessary zoning relief for the proposed project because it otherwise does not comply with the local zoning ordinance.
Zoning relief is a relaxation of the strict rules imposed by a zoning code by the appropriate governmental body. In Pennsylvania, Zoning Hearing Boards (“ZHB”) make the decisions concerning zoning issues. There are generally two types of zoning relief available from the ZHB: special exceptions and variances (note, however, that the ZHB cannotrezone a tract as this is the function of the local legislative body such as the township supervisors).
A special exception is a permitted use under the local zoning code, provided that certain conditions are met. The standard to refuse a special exception is very high; if the applicant can show that all conditions imposed by the zoningcode have been met, the burden shifts to opponents to show that all of the conditions imposed are not met or that the application poses a threat to the health, safety or welfare of the community.
A variance on the other hand places the burden on the applicant to show that: a) there is “hardship,” and the hardship is not self imposed by the applicant; b) the relief sought is the minimum relief necessary; and c) that the proposal will not aversely affect the health, safety and welfare of the community. A variance is more difficult to obtain primarily because of the hardship requirement. A hardship exists when the physical characteristics of a property are such that it is impossible to comply with the zoning ordinance. For example, a lot may contain only 8,000 square feet when a zoning code requiresthat lot to have not less than 10,000 square feet to be developed; the ZHB has the authority to permit development on such a lot by granting a variance provided it does not put in jeopardy the health, safety or welfare of the community.
If you are considering a project that requires zoning relief, contact our office to see if we can help. We handle many zoning cases, large and small, commercial and residential.
– J. K. Butera