Agenda - Planning Commission - 08/07/2014

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Zoning Bulletin June 25, 2014 I Volume 8 I Issue 12, purchased a 0.176 acre parcel of property (the "Property") in Monaca, Pennsylvania (the "Borough"). Two days before the Sales Agreement to purchase the Property was executed, the Borough enacted § 245-12 of the Borough Ordinance (the "Ordinance"). The Ordinance changed the zoning district within which the Property was located from the R-2, Single -Family and Two -Family Residential District to a Planned River -Oriented Develop- ment District ("PROD"). While there were 22 single family residences in the PROD district and lo- cated in the immediate vicinity of the Property, no structure had existed on the Property since January 2011. Under the Ordinance, the Property could be used only for public or noncom- mercial recreation on the Property. However, all noncommercial and public recreation uses that were allowed required more land than contained within the bounds of the Property. Accordingly, after the enactment of the Ordinance, the Property could only be used as a public park. The Nowickis applied to the Borough's Zoning Hearing Board (the "ZHB") for a use variance in order to construct a single-family dwelling on the Property. The ZHB denied the application. The Nowickis appealed to the trial court. They argued that the Ordinance was confiscatory and denied all economically viable use of their land. The ZHB argued that the Ordinance was not confiscatory because it permitted the Property to be used for both noncommercial and public recreation, and that the inability of the Nowickis to pursue a single-family residential use of the Property under the Ordinance did not establish an unnecessary hardship. The trial court reversed the ZHB's denial of a use variance to the Nowickis. The Borough and the ZHB (hereafter, collectively, the "Borough") appealed. They argued that the Nowickis had failed to satisfy the criteria for a variance. They contended that: (1) the Nowickis had not established that the Ordinance so strictly regulated the Property that it was valueless for any permitted purpose, amounting to an unnecessary hardship by confiscation; and (2) that if an unnecessary hardship did exist, it was self-inflicted. They as- serted that the ZHB acted properly when it denied the Nowickis' application for a variance. DECISION: Judgment of Court of Common Pleas affirmed. The Commonwealth Court of Pennsylvania held that that Ordinance, as ap- plied to the Property, was confiscatory and created unnecessary hardship that was not self-inflicted, and thus the Nowickis were entitled to a variance. In so holding, the court explained that a variance is "permission to deviate from [an] ordinance in either the dimensions of the improvements made to the land or in the use of the land." The court said a variance is proper where an unnecessary hardship afflicts the land (as opposed to afflicting the property holder's desired use of the land). The court further explained that a property owner seeking a variance must, pursuant to the § 910.2 of Pennsylvania's Municipalities Planning Code ("MPC"), show the following: "(1) That there are unique physical conditions peculiar to the property and that the unnecessary hardship is due to those conditions; (2) That because of the physical conditions, there is no possibility that the property can be developed in strict 2014 Thomson Reuters 5