Dunn v. Middletown Twp. Zoning Hearing Bd., 143 A.3d 494 (Pa. Commw. Ct. 2016)
If applicant’s subdivision plans would create the non-conformity that the applicant seeks to resolve by variance, the applicant should not be granted a variance. Also, de minimis variances may be granted if applicants show that (a) minor deviation from the dimensional uses of a zoning ordinance is sought and (b) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. In addition, there is no precise mathematical percentage that marks the dividing line between de minimis and significant deviation.
Applicant intended to demolish the home on Applicant’s property (Property) and sought to subdivide the Property into three lots. Objectors own adjacent property. In order to carry out the subdivision plan, Applicant requested variances from the zoning ordinance related to the minimum lot width and density for that zoning district. Objectors opposed the Applicant’s variance request, arguing the Applicant can make use of the Property without a variance. The Zoning Hearing Board (ZHB) granted the Applicant’s request. The ZHB found the variance was necessary and warranted because the density and lot width requirements were in conflict, and the law requires that conflicts in zoning ordinances be resolved in favor of the property owner. Objectors appealed to the trial court which affirmed the decision of the ZHB. Objectors then appealed to the Commonwealth Court.
The Commonwealth Court reversed the trial court’s decision. The Court stated applicants must prove that compliance with the zoning ordinance, as is, would cause an unnecessary hardship on the applicant. The Court found the variance was granted without a determination that Applicant met this requirement. Instead, it was evident that Applicant created the hardship that it seeks to remedy by variance. The Property could be used for one compliant home without the need for zoning relief, therefore, Applicant should not have been granted a variance.
The Court also acknowledged that applicants may seek and be granted a de minimis variance if it can be shown that (1) a minor deviation from the dimensional uses of a zoning ordinance is sought and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. However, the ZHB did not determine and could not have determined that Applicant met these requirements. First, regardless of whether the variance sought is a minor deviation, as discussed above, the subdivision would create the non-compliance for which the Applicant sought the variance. Second, the ZHB failed to determine that rigid compliance with the zoning ordinance was unnecessary to protect public policy concerns inherent in the ordinance. The Court further noted there is no exact percentage at which a de minimis deviation becomes a significant deviation; therefore, Applicant’s attempt to justify its variance request by arguing that the deviation at issue is a small percentage was not accepted.
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