Use Variances Remain a Challenging Process

The Pennsylvania Commonwealth Court in South Broad Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment affirmed that local governments must strictly apply the Municipalities Planning Code use-variance requirements. The Court also affirmed that a property owner does not possess a right to the allegedly “most productive use” of a property that outweighs application of even outdated zoning regulations. [20]

A developer sought a use-variance from the general zoning regulations. A use-variance effectively seeks an exception from the general zoning regulations for a specific property based on the applicant’s desire for a specific use contrary to the zoning regulations. Due to the Constitutional rights of neighboring properties and the community members, a use-variance is by design extremely rare.

Unnecessary in Unnecessary-Hardship Means Something

The Commonwealth Court re-emphasized the high-bar associated with variances. A variance applicant cannot merely establish some hardship or economic hardship. The applicant must establish unnecessary hardship. [13]

In this case, the applicant argued that general changing conditions in the zoning district supported multi-family uses and thus denial meant “unnecessary hardship.” The Commonwealth Court reminded that

[m]ere economic hardship, however, “will not of itself justify a grant of a variance.” … Evidence that the property’s legally allowed use is less profitable than the property’s proposed use is not sufficient to justify a variance. [13-14, citing Marshall v. City of Philadelphia].

Neighboring uses alone do not establish unnecessary hardship.[15] The Commonwealth Court does hint that evidence presented of significant physical characteristics of the property unique to the property might support unnecessary hardship in some cases, [18], or possibly significant evidence of extensive and expensive renovation (such as blighted properties) [19].

The Commonwealth Court thus summarized that local municipalities must recognize the extreme nature of variances and requires a higher-threshold than just hardship to establish a variance.

Modification of Prior Variances

South Broad Street also address modification of existing variances. The Court reminds:

a use variance is fundamentally a legislative determination that an otherwise nonconforming use, when approved under specific circumstances and subject to specific conditions, is entirely lawful.[11]

If a variance exists, the property owner may seek modification of the variance by demonstrating “absence of injury to the public interest” AND:

  1. meeting the criteria for a new, variance (unnecessary hardship) or
  2. changed circumstances [9].

If proceeding on changed-circumstances, the applicant must establish by “substantial evidence” that conditions changed rendering the current/previous variance “no longer appropriate.”[10] Importantly, the applicant must demonstrate the changes during the time period from when the prior variance was granted and the time of application for modification. [12]