German v. Zoning Bd. of Adjustment, 41 A.3d 947 (Pa. Commw. Ct. 2012).
Zoning Hearing Board properly refused to modify conditions on prior variance approval where there was no evidence to support the requested modification.
Applicant, the owner of a restaurant and bar, received a variance with conditions for his establishment. Seven years later, he applied to have the conditions revised due to economic changes. The Zoning Hearing Board denied the request. In reviewing the denial, the Commonwealth Court discussed the purpose of conditions imposed by zoning hearing boards with respect to variances. The Court stated such conditions are “presumed to be for the purpose of protecting the public interest,” and that the conditions may be reevaluated when an applicant demonstrates the conditions are no longer necessary or reasonable for protecting the public’s interest due to a change in circumstances related to the land at issue.
The Commonwealth Court determined, however, that Applicant failed to provide context as to why he needed to increase hours to remain competitive, failed to show the proximity of other competitors, and evidence was lacking about how the economic downturn caused a change in circumstances. Even if the economic downturn caused a change in circumstances, evidence was lacking that it impacted the owner and that increased hours of operation would reduce the impact. As a result, the denial was upheld.
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