Nowicki v. Zoning Hearing Bd., 91 A.3d 287 (Pa. Commw. Ct. 2014).

Validity variance was justified where rezoning rendered the only potential use of the private property to be that of a public park, which was a confiscation of private property.
Case Details:

Applicant purchased a vacant property consisting of 7,666.56 square feet of land.  Previously, the property included a single, multi-unit dwelling that burned and then was demolished.  The property was located in what was a single- and two-family residential district until two days before the agreement of sale was executed at which time the Borough changed the zoning to Planned River-Oriented Development.  While the property technically met the lot size requirements of the new district, Applicant believed the bulk and setback requirements rendered the property useless for the permitted recreational purposes.  For that reason, Applicant applied for a variance.  In short, Applicants argued the zoning ordinance as applied to his property was confiscatory.

The Commonwealth Court reviewed the law for validity variances as requested by Applicant.  The Commonwealth Court restated that at a minimum, an applicant for a variance due to the confiscatory nature of the ordinance is required to show “that: (1) the effect of the regulations complained of is unique to the property and not merely a difficulty common to other lands in the neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of the use of the property.”  The Court determined that the requisite square footage for the recreation uses permitted in the district exceed that which is available on the property.  Moreover, Applicant did not create that unique feature that is not common on other lands in the neighborhood.  Truly, the only permitted use is that of a public park – a use no one questions would constitute confiscation of the Applicant’s property.  Furthermore, surrounding single-family homes were evidence that the addition of another such home on Applicant’s property would not be detrimental to the public welfare; rather, it “will blend harmoniously into the surrounding neighborhood.”  For those reasons the Court affirmed the trial court’s order reversing the Zoning Hearing Board’s denial.

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