In re: Appeal of Janice Boyer, 960 A.2d 179 (Pa. Cmwlth. 2008).

Property owner was not entitled to a variance when she failed to establish that the property was subject to unnecessary hardship and arguably only proved that she was subject to hardship.
Case Details:

Green purchased property on a naturally occurring slope.  When Green purchased the property, she knew of the topography and also knew that she wanted to construct an in-ground pool at some point in the future.  Swimming pools are allowed as accessory uses in the residential district; however, pools must be erected within the rear quarter of a lot and are prohibited in areas of significant slope.  Green was unable to locate the pool completely in the rear of her lot due to the slopes; a portion of the pool would encroach on the side lot which is generally prohibited.  Green applied for a variance to construct an in-ground swimming pool on her property.  The ZHB granted the variance.

Boyer, a neighboring property owner, appealed this decision because she was concerned about the potential damage to her home if there was a failure of the pool. Boyer also argued that Green did not meet the requirements necessary for the grant of a variance. The trial court affirmed the decision of the ZHB, and Boyer appealed to the Commonwealth Court.  A variance may be granted when an applicant shows: (1) that there are unique physical characteristics peculiar to the property; (2) due to these characteristics, there is no possibility that the property may be developed in conformity with the ordinance; (3) the hardship was not created by the applicant; (4) that the variance will not alter the essential character of the neighborhood; and (5) that the variance will represent the minimum variance that will afford relief.  The Commonwealth Court found that it is Green, not the property that is subject to hardship.  Due to the fact that Green failed to establish that the property was subject to unnecessary hardship, the ZHB erred in granting the variance.

Date of Decision: 10/22/08

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