Citation:

Hertzberg v. ZHB of Pittsburgh
721 A.2d 43 (Pa. 1998).

Case Details:

If the only reason a variance is necessary is because the proposed use, otherwise permitted by the ordinance, does not conform to the dimensional requirements of a zoning ordinance, the applicant is requesting a “dimensional variance.” To determine if a dimensional variance should be granted, the governing board should consider factors such as the economic hardship on the applicant if the variance is denied, the economic hardship created by any work necessary to conform the use to the ordinance, and the characteristics of the surrounding neighborhood.

The applicant in this case applied for a variance to turn an old building into a lodge for homeless women. A “lodging house” is permitted under the ordinance subject to a few dimensional restrictions. The ordinance required a “lodging house” to have a minimum of 5,000 square feet and an additional 300 square feet for every bedroom in excess of three. The ordinance also required one parking space for each of the first twenty sleeping rooms. For the applicant’s proposed use, the building required 7,100 square feet and ten parking stalls. However, the existing building, which had been vacant and unsold for a few years, only contained 3,409 square feet and had no parking stalls.

The applicant applied for a variance. The ZHB granted her request because the building was “uniquely suited” for the use. A neighbor objected to the granting of the variance and appealed the ZHB’s decision. The Commonwealth Court reversed the granting of the variance, holding that applicant did not prove that the ordinance created an unnecessary hardship for the property when the applicant did not show that there was no other possible use for the property that could conform to the ordinance.

The Supreme Court reversed and remanded the case upon holding that the Commonwealth Court applied the wrong standard of analysis for dimensional variances. The standard the Commonwealth Court applied was appropriate for a use variance but not a dimensional variance. When seeking a dimensional variance, the applicant is only asking for a reasonable adjustment of the ordinance to use the property in a manner otherwise permitted by the ordinance. On the other hand, a use variance involves a use wholly outside the purview of the ordinance. Therefore, it is proper for other factors to be considered for a dimensional variance application such as the economic hardship to conform the use to the dimensional requirement and the surrounding characteristics of the neighborhood.

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