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A variance may be granted if landowners would be denied the reasonable use of their property absent a variance.
Sombers v. Stroud Township Zoning Hearing Bd., 913 A.2d 306 (Pa. Cmwlth. 2006).
Landowners sought a variance to build a residence on a 2.125-acre tract of land with a pond located near its center. The Zoning Ordinance required a minimum buffer of 100 feet from a pond which, in this case, effectively precluded Landowner from building a residence without a variance. Landowners originally required a variance to build a 770-square-foot residence, but then amended their application to allow for a 1,392-square-foot residence. The Zoning Hearing Board denied their application for a variance, but the trial court concluded that a variance should be allowed. Objectors appealed.
Under the Municipalities Planning Code, a variance may be granted when the following are shown: (1) unique physical characteristics of the property, rather than the operation of the zoning ordinance create an unnecessary hardship; (2) because of the unique physical characteristics of the property, the property cannot be developed in conformity with the provisions of the zoning ordinance; (3) the applicant has not created the hardship; (4) the variance, if authorized, will not alter the character of the neighborhood; (5) that the variance, if approved, will represent the minimum variance. (53 PS § 10910.2).
Interpreting the case as a dimensional rather than a use variance case, the Commonwealth Court determined that confining the use of the residentially zoned property to a pond alone would not permit the reasonable use of the property since the drafters of the ordinance intended land to be used for single-family dwellings. The Township argued it should be considered a use variance because buffers typically are used to separate uses; however, the Court found that the buffer restriction, in this case did not serve that purpose, as the primary purpose for this district was for single-family residences.
In addition, the Commonwealth Court concluded that the unique characteristics of the property precluded development, not the Landowners’ knowledge of the non-conformity.
Finally, following the minimum deviation rule, the Court granted the Landowners’ first proposal for a 770-square-foot residence, instead of the 1,392 square foot proposal.
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