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December 5, 2023
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Often times, property owners wish to develop their property in a manner that differs from what is allowed by their local zoning ordinance. When this happens, the property owner must seek and obtain a “variance” from their municipality’s zoning hearing board. Pursuant to Section 910.2(a) of the Pennsylvania Municipalities Planning Code, the board may grant a variance if all of the following relevant factors are established:

(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 the 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.

One of the biggest hurdles for property owners is proving that there is an “unnecessary hardship” impacting their property. The hardship must be directly tied to the unique physical circumstances or conditions of the property (e.g., size, shape, location, topography, etc.) and cannot be justified by economic burden or financial loss. While a hardship inquiry looks principally to the physical characteristics of the property that is the subject of the variance request, a 2022 Commonwealth Court decision, Canivan v. Honesdale Borough Zoning Board, illustrates how changes in the use of the property and physical conditions external to the property can also contribute to a legally cognizable hardship.

In Canivan, a Pennsylvania church obtained a variance from Honesdale Borough’s zoning hearing board in 1998 for an on-site parking lot containing 14 parking spaces. In 2018, the Church requested three dimensional variances so it could expand its on-site parking lot to 24 parking spaces. In support of its application, the Church argued that since 1998, significant changes had occurred to the Church, the borough, and the neighborhood. Specifically, the Church argued that there was an increased need for parking because (i) the Church’s congregation grew, (ii) attendance at services increased, (iii) automobiles were used more frequently, and (iv) traffic patterns had changed. As a result, these changes impacted the availability of on-street parking for church activities.

At the hearing, an adjacent property owner, Paula Canivan, testified in opposition to the variances, alleging that there was no need for the additional parking spaces and additional screening would need to be provided between the parking lot and her property. Following the hearing, the board granted the Church’s requested variances and Ms. Canivan appealed. At the trial level, the court affirmed the board’s decision. Ms. Canivan then appealed to the Commonwealth Court of Pennsylvania, arguing that the trial court erred in affirming the board’s decision because the board failed to determine that the Church met the necessary criteria for a variance.

The Commonwealth Court noted that the surrounding neighborhood had changed because (i) the construction of the Tallman bridge caused the loss of 10 on-street parking spaces; and (ii) Church Street was now a one-way street.  Thus, the court found that there was a significant loss of the Church’s available on-street parking – both presently and for future use.  The Court concluded that the board’s findings were clearly supported by substantial evidence and affirmed the trial court’s order. Ultimately, the Canivan decision illustrates that existing uses or conditions that were once reasonable can change over time and this change in circumstances can be used to support the requisite “unnecessary hardship” needed to support a variance request.

Please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.