Twp. of Northampton vs. Zoning Hearing Bd. of Northampton Twp., 969 A.2d 24 (Pa. Commw. Ct. 2009).
Hertzberg does not excuse an applicant from providing evidence on the MPC criteria for a variance, including hardship. Additionally, a retailer's standard architectural requirements may not be the sole basis for a hardship.
Applicant intended to develop a Rite-Aid Pharmacy on a 5.25-acre parcel and requested a dimensional variance to reduce the off-street parking requirement for the development from 112 spaces to 67 spaces. Expert testimony showed only 50-70 spaces were required for similar pharmacies, less spaces meant less stormwater runoff and more green space, the building’s footprint could not be reduced due to Rite-Aid Pharmacy design requirements, and the parking requirements were excessive in the expert’s opinion. The Zoning Hearing Board granted the variance under Hertzberg (dimensional variances require a lesser showing by an applicant than use variances) and the Township appealed.
The Commonwealth Court determined that the Applicant offered no testimony regarding the MPC’s hardship criteria, but instead testified only that 67 spaces would be sufficient. The Court further found that an applicant must still show a hardship under Hertzberg and that a retailer’s architectural or building size requirements are merely owner desires and not indicative of any hardship.
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