The Borough of Dormont v. ZHB of the Borough of Dormont
850 A.2d 826 (Pa. Cmwlth 2004).
In this case the court reversed the ZHB grant of a variance by estoppel when the borough ordered the previous owners of a building to cease using the building as a three family dwelling but never enforced the order. The four items the applicant must prove to be granted a variance by estoppel are the following: (1) a long period of acquiescence by the municipality to a known violation; (2) innocent reliance on the validity of the use in violation; (3) substantial expenditures in reliance the use was permitted; and, (4) that a denial of a variance would pose and “unnecessary hardship” on the applicant.
The court held that the subsequent purchaser of the property did not satisfy all the elements of variance by estoppel because he could not show an “unnecessary hardship” created because of the ordinance. To show “unnecessary hardship,” the applicant must prove that the ordinance renders the property virtually valueless. The building was located in an area where only one or two family structures were permitted. Because the landowner could continue using the property as a two family dwelling under the current ordinance, the property was not valueless.
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