Agenda - Planning Commission - 08/07/2014

Home

June 25, 2014 I Volume 8 I Issue 12 Zoning Bulletin confonnity with the zoning ordinance and that a variance is needed to enable rea- sonable use of the property; (3) That unnecessary hardship has not been created by the applicant; (4) That the variance is not detrimental to the public welfare; and (5) That the variance is the minimum variance that will afford relief and is the least modification of the regulation at issue." (53 P.S. § 10910.2) In the context of a use variance, as sought here, the court said that "an ap- plicant must establish that an unnecessary hardship attends the land with evi- dence that: (a) the physical conditions of the property are such that it cannot be used for a permitted purpose; or (b) the property can be conformed for a permitted use only at a prohibitive expense; or (c) the property is valueless for any purpose permitted by the zoning ordinance." "Once an applicant has dem- onstrated that the property is subject to an unnecessary hardship, the party must also demonstrate that the conditions are unique to the property; where the hardship is present in the district as a whole or in a portion of the district, the proper remedy is re -zoning rather than a variance," said the court. Here, the Nowickis had argued the rarest of unnecessary hardship situations: where an ordinance has rendered the property valueless for any permitted purpose and is thus confiscatory. To prove such a hardship, the court said that the Nowickis had to show: (1) the effect of the Ordinance was unique to the Nowickis' Property and not merely a difficulty common to other lands in the neighborhood; and (2) the Ordinance was confiscatory in that it deprived the Nowickis of the use of the Property. Here, the court found that the only use possible on the Nowickis' Proper- ty —given the size of the parcel and the use restrictions under the Ordinance — was a public park. The court determined that therefore the uses pennitted on the Nowickis' Property under the Ordinance did not allow for reasonable use of the property. The court also made the following findings: (1) The Ordinance had a unique impact upon the Property "because, unlike other properties that were formally in the residential district and [were] now within the PROD, the Property [did] not have a preexisting structure, nor [was] it large enough to ac- commodate the high -density dwellings that the development of the PROD was, in part, enacted to spur"; (2) The size of the Property and its location within a predominately single-family residential portion of the PROD established that it would be undesirable and ultimately unmarketable for an economically viable recreation use; (3) The addition of a residential home on the Property would not be detrimental to the public welfare, would blend harmoniously into the surrounding neighborhood, and was the minimum vari- ance that would afford relief while still allowing a reasonable use of the Prop- erty; and (4) The hardship to the Property was not self-inflicted as the Nowickis did not purchase the Property for too high a price (and it was not enough for the Nowickis to have known how the property was zoned to dem- onstrate the hardship was self-inflicted). Accordingly, having found the Nowickis demonstrated that the Ordinance as applied to the Property was confiscatory, creating an unnecessary hardship that was not self-inflicted, the court affirmed the trial court's order granting the Nowickis' application for a variance. See also: Hoffman Mining Co., Inc. v. Zoning Hearing Bd. of Adams Tp., 6 © 2014 Thomson Reuters