Posted by: Patricia Salkin | October 21, 2011

PA Appeals Court Holds Impediment to Maximizing Profit from Land Does Not Warrant Issuance of Variance

A realty company in Pennsylvania (“applicants”) owned a parcel of land where they planned to demolish the existing building and rebuild a mix-used building.  Their application was denied because the proposal failed to comply with various sections of the city’s zoning ordinances.  Upon appeal, applicant presented an amended proposal and testified regarding the physical restraints on the property, which they argued prevented them from fully complying with the ordinances.  They requested several variances to begin construction. The city granted the variance, reasoning that strict enforcement of the city’s ordinances would result in a hardship to applicants.  Two objectors appealed to the trial court who affirmed the city’s decision, holding that the city properly granted the variances.  Objectors appealed.

The appellate court noted the established rule that those seeking a variance must show that unnecessary hardship is imposed by the ordinance, that granting a variance will not harm public interest, and that the variance is as minimal as necessary to grant relief.  Although, the court concedes the proof necessary for a dimensional variance is less than required for a use variance, the burden on the applicant seeking a variance is heavy.  In clarifying what constitutes a hardship, the court said it must impact any use of the property and is not merely a “desire to increase profitability.”  Here, the court concluded that the applicants failed to present evidence that they cannot develop the property, as there was only evidence that they could develop it as proposed.  The court further pointed out that the proposed variances were more than a technical deviation from the ordinance and what applicants should have sought was a rezoning. 

The court continued that the applicants failed to show that the property could not be developed at a reasonable cost or that the property has no value under the ordinance.  In fact, the property was currently being used as a parking lot, and, therefore did have value.  In reversing the lower court, the appeals court ultimately held, a “mere desire to maximize[] the potential use of the property” is not enough to warrant a variance. 

Singer v. Philadelphia Zoning Bd. of Adjustment, 2011 WL 4501939 (Pa. Commw. Ct. 9/30/2011)

The opinion can be accessed at:

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