Demko v. City of Pittsburgh Zoning Bd. of Adjustment, 155 A.3d 1163 (Pa. Commw. Ct. 2017)

Where a party seeks significant deviations from the zoning code, the appropriate remedy is a rezoning, not a variance.
Case Details:

Developer sought variances and a special exception to redevelop property that contained historic, but blighted, buildings (Property) into a mixed-use building with retail and residential uses. The owner of the Property had issued multiple requests for proposals to redevelop the Property, and each required that the building on the Property not be demolished. Accordingly, Developer’s proposal incorporated the existing building, but in so doing, required zoning relief.

The City’s Zoning Board of Adjustment (ZBA) granted the requested variances and special exception in order to promote the preservation of the historic buildings. Two neighbors appealed to the trial court, which reversed the ZBA’s decision. In doing so, the trial court found Developer failed to prove that physical characteristics of the Property created an unnecessary hardship. Rather it was the “property owner’s strictures,” which were “self-imposed conditions,” that created the hardship. There “was no evidence presented to establish, nor [did the trial court’s] review of the Zoning Code reveal, that the [relevant] District contains any restrictions concerning historical or architectural protections which would require that the existing buildings be maintained,” as required by the property owner.  Developer’s main concern was financial hardship.

Developer appealed to the Commonwealth Court, which affirmed the trial court’s decision. In affirming the trial court’s decision, the Commonwealth Court found Developer was seeking variances and a special exception solely to ensure the development project would be economically viable for them. The Court agreed economic hardship is a factor that may be considered by courts when deciding whether to affirm the granting of a variance in situations where such relief is “necessary to bring [a] building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.”  But that was not the case, here.

Date of Decision: 3/7/17

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