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A variance is properly denied under the MPC where the applicant has created his own unnecessary hardship.
Wilson v. Plumstead Twp. Zoning Hearing Board,
894 A.2d 845 (Pa. Cmwlth. 2006), reargument denied, (Pa. Cmwlth. April 13, 2006).
Landowner, an accountant, purchased a single-family residence in a zoning district that allowed for “home occupations” which, under the Zoning Ordinance, meant that businesses could be conducted inside the home, so long as the home served as the bona fide residence of the business practitioner. Landowner renovated the home so that he could use it as his office, but assured the zoning officer that he would use it in conformity with the home occupation standard. Subsequently, Landowner received an enforcement notice because he was using the home only for office purposes.
Rather than appeal the enforcement notice, Landowner applied for a variance. The zoning hearing board denied the variance, concluding that the property could be used viably for residential home occupation purposes. Moreover, because Landowner purchased the property with the assumption that he would be able to use the property for office purposes only, any hardship in this case was the result of Landowner’s own actions. Landowner appealed.
The trial court reversed, finding the requisite unnecessary hardship present where, as here, a single family residence is located on a heavily traveled road, the “overwhelming majority” of surrounding properties were commercial, and the rear of the property looked out upon a sewer treatment plant. Township appealed.
Over a strong dissent, a three judge panel of the Commonwealth Court reversed, finding that the trial court relied on precedent applicable only to the issuance of a variance under the Philadelphia Zoning Code, not the MPC. The Court reiterated, outside of Philadelphia, an applicant for a variance must satisfy all of the elements required in the MPC including Section 910.2(a)(3) that “such unnecessary hardship has not been created by the [applicant.]” In this case, the Court opined, Landowner created his own hardship by purchasing the property, making the renovations and using the property as an office with full knowledge that such use did not conform to the Zoning Ordinance. The dissent, however, questioned whether an appellate court could overturn a finding of unnecessary hardship that was supported by substantial evidence.
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