Technical Assistance - Pennsylvania Land Use Law : PA Land Use

Key Topic: Variances

Property owners were entitled to a variance by estoppel because they relied on representations of the zoning officer and spent substantial amounts of money in the construction of a wall.

Vaughn v. ZHB of the Township of Shaler, (Pa. Commw. Ct. 2008).

Property Owners proposed construction of a 160-foot wall on their property to level their backyard. Prior to construction, they asked the Township’s zoning officer if they needed a permit. The zoning officer informed them no permit was needed. Property Owners began construction of the wall. Property Owners’ neighbors complained to the Township about the wall. By this time, construction on the wall was almost complete and Property Owners had spent over $30,000 to construct the wall and it would cost $20,000 to remove the wall.

Neighbors filed an appeal to the ZHB arguing that since the wall was a structure within the meaning of the MPC, Property Owners needed a permit. Further, they argued that the wall was in violation of the side yard setback requirements. Property owners argued that the wall was not a structure and, alternatively, they were entitled to a variance by estoppel. The ZHB held that no permit was necessary because the wall was not a structure. Neighbors appealed to the trial court which found that the wall was a structure, but that Property Owners were entitled to a variance by estoppel. Ultimately, however, the trial court found that it did not have jurisdiction and vacated its decision. Property owners then filed an application for a variance with the ZHB and asserted that they were entitled to keep the wall at its present location under the theory of variance by estoppel or doctrine of vested rights. The ZHB found that Neighbors’ property value was not diminished, the wall did not pose a danger to health or safety and Property Owners acted in good faith and diligently inquired as to whether they needed a permit. The ZHB found that Property Owners were entitled to variance by estoppel because they would experience unnecessary hardship if they had to remove the wall.

Neighbors appealed to the trial court arguing that the ZHB lacked jurisdiction to grant equitable relief, and the trial court agreed. The Township appealed to the Commonwealth Court. The Court found that the ZHB had jurisdiction and determined that Property Owners were entitled to variance by estoppel because they relied on the representations of the zoning officer, made substantial expenditures, believed they did not need a permit and would have to spend a substantial amount of money to remove the wall.

Opinion Date: April 2, 2008

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