Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin December 25, 2011 ! Volume 5 I No. 24 things, that there was no hardship peculiar to Landowner's parcel that pre - vented it from being developed as it was zoned. Landowner appealed to the trial court. The court affirmed the Board's denial of the use variance. Landowner again appealed. DECISION: Aii used. The Commonwealth Court of Pennsylvania held that the industrial zon- ing of landowner's property did not create an unnecessary hardship, as re- . quired for Landowner to obtain a use variance. The court explained that in order to qualify for a variance, an applicant must establish: "(1) an unnecessary hardship stemming from unique physi- cal circumstances or conditions of the property will result if the variance is denied; (2) because of such physical characteristics or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the ordinance; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief." As for the requisite "unnecessary hardship" element, an applicant must prove either: "(1) the physical characteristics of the property are such that it could not in any case be used for any permitted purpose, or that it could only be used for such purpose at prohibitive expense; or (2) the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the ordinance." Thus, here, in order for Landowner to obtain a use variance, it had to show that compliance with the zoning ordinance (i.e., using the property for a use allowed in an industrial zone) could render the property practi- cally useless. Landowner was required to show that either: (1) the physical characteristics of the property precluded its use for a permitted purpose in the industrial zone or that such use would be prohibitively expensive; or (2) that the characteristics of the property are such that it either has no value or only distress value for any permitted purpose in the industrial zone. The court found that Landowner failed to meet that burden. A num- ber of witnesses had "credibly testified that the property could be put to [uses permitted in the industrial zone such as professional and business office use, or a warehouse or similar use] ." Landowner could not obtain a variance simply because the zoning of its property deprived it of the most lucrative or profitable uses of the property. See also: Com. By and Through Dept. of General Services v. Zoning Hear- ing Bd. of Susquehanna Tp., 677 A.2d 853 (Pa. Commw. Ct. 1 996). Case Note: Landowner had actually applied for "a use variance, as well as a substantive validity variance." The court explained that a validity variance is based on the theory that an otherwise valid zoning ordinance is confiscatory when applied to a particular property and © 2011 Thomson Reuters 3