Variances - What are They and What are the Standards?

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A variance is a strict departure from the literal enforcement of the provisions of a zoning ordinance.  Under the Pennsylvania Municipalities Planning Code, an applicant for a variance may be either the landowner or the equitable owner of the subject property.  A lessee is only permitted to pursue a variance if the lessee is specifically authorized to exercise the rights of the landowner under the lease.

An applicant may seek either a use variance or a dimensional variance.  An applicant for a use variance is requesting to use the subject property for a use that is not permitted by-right within the applicable zoning district, while an applicant for a dimensional variance is seeking a by-right permitted use under the zoning ordinance, but requires relief from the dimensional restrictions of the ordinance, such as setback or minimum lot size requirements. 

Generally, in order to obtain a variance, the applicant must demonstrate the following five (5) requirements to the municipal zoning hearing board: 

  1. That there are unique physical circumstances or conditions peculiar to the particular property which create an unnecessary hardship.
  2. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
  3. That such unnecessary hardship has not been created by the applicant.
  4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
  5. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue. 

Often, the most difficult requirement for an applicant to prove is that the alleged unnecessary hardship has been created by the conditions of the property itself and that the hardship has not been self-imposed by the applicant.  The test for determining whether a hardship exists is not whether the proposed use is more desirable than the permitted use, but whether the property can be used in a reasonable manner within the restrictions of the ordinance. 

In addition, it is important to remember that in granting any variance, the zoning hearing board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the zoning ordinance. 

Do you need a variance in order to complete your project?  Are you able to prove that a hardship exists and that you did not create the hardship?

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