Laurel Point Associates v. Susquehanna Twp. Zoning Hearing Board,
887 A.2d 796 (Pa. Cmwlth. 2005), app. denied, 903 A.2d 1235 (Pa. 2006).
Landowner failed to satisfy any of the evidentiary approaches used to establish the confiscation element of a “validity variance.”
Landowner sought a “validity variance” to develop commercially a property zoned for residential purposes only (a validity variance is a variance justified because the zoning, when applied to a particular property, is confiscatory in nature). After hearing expert testimony from both the applicant and those opposed to the application, the zoning hearing board rejected the request. The court of common pleas affirmed.
On appeal, over the dissent of President Judge Colins, the Commonwealth Court also affirmed (rejecting landowner’s application). First, the Court held that a landowner seeking a validity variance must also satisfy the requirements for a variance set forth in the MPC, Section 910.2, but acknowledged that the “key [in a validity variance case] is the actuality of confiscation, and confiscation is the unnecessary hardship.” The Court then set forth three evidentiary approaches an applicant can use to satisfy the confiscatory nature of an ordinance. An applicant can satisfy the standard by showing the following: 1) the unique features of the property preclude it from being used as zoned; 2) conforming the property to the zoned use would be prohibitively expensive; and 3) “the property has no value for any [permitted] purpose,” e.g. the property is surrounded by incompatible uses.
Here, the Commonwealth Court concluded that the applicant failed to satisfy any of the evidentiary approaches. First, the evidence supported the finding that the property could in fact be subdivided into residential lots as zoned. Second, the applicant failed to provide any evidence related to the cost of conforming the property and whether such cost would be prohibitive. Third, because an adjacent landowner offered to purchase the property for $60,000 and an expert appraiser testified that the property would be worth $280,000 if subdivided into seven lots, the Court concluded that the property had substantial value even within the confines of the permitted use.
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