Local zoning laws typically regulate the types of uses that can be established in a given area, as well as the physical characteristics of structures located with a given zoning district. Zoning ordinances typically divide a municipality into various zones, including residential, commercial, industrial, agricultural and other types of uses. By establishing separate zoning districts within the municipality, local government is able to regulate future development with an eye toward sensible and harmonious growth. Single family homeowners should not have to contend with commercial uses in the neighborhood, and commercial and industrial uses should not have to contend with inconsistent uses in their districts.
In addition to regulating uses, zoning ordinances typically regulate the size of properties in a given district, establishing minimum front, side and rear yards, maximum building coverage and limitations on height of a given structure.
In order to establish a use which is inconsistent with the permitted uses in a zoning district, or to build a structure which does not meet the dimensional requirements (yards, coverage, height, etc.) of the zoning district, a variance must be sought from the local zoning hearing board. A variance is nothing more than a request to develop a tract in a manner not otherwise permitted in the zoning district. Variances are typically divided into use variances, which seek to vary the permitted use, and dimensional variances, which seek relief from the strict dimensional requirements of the zoning district.
In order to obtain a variance, a landowner must establish legal hardship. This requires a landowner to show that the property cannot be used as zoned or that it is rendered practically valueless unless a variance from the strict application of the zoning ordinance is granted. In addition, the owner must show that the hardship is not self-created and that if the variance is granted it will not harm the health, safety and welfare of the community. Not surprisingly, the burden of proof to obtain a variance is a difficult one since most properties can be used for something under the existing zoning ordinance. Merely showing that the property would be worth more if a variance is granted is insufficient to establish legal hardship.
Until recently there was no distinction in the burden of proof to obtain a use variance or a dimensional variance. However, recent cases handed down by the Pennsylvania Supreme Court and the Commonwealth Court have created an exception for dimensional variances, which will now be subject to a somewhat less rigorous standard of hardship, especially if the variance is sought in connection with rehabilitating a blighted area. Use variances remain subject to the higher standard of proof of hardship. While economic hardship alone has never been sufficient to obtain a use variance, economic hardship may now justify obtaining a dimensional variance in certain circumstances.
Call us if you have any questions concerning this recent change in the law.
— Kevin Palmer