Citation:

Pequa Twp. v. Zoning Hearing Bd., 2018 Pa. Commw. LEXIS 102

Summary:
A variance may be granted under the de minimis doctrine when (1) only a minor deviation from the zoning ordinance is sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the public interests sought to be protected by the ordinance. Where the de minimis doctrine applies, “there is no need to resort to any other theory of relief.” In addition, a dimensional variance that would create a nonconformity is distinguished from dimensional variances that would bring a property into conformance with a zoning ordinance.
Case Details:

Applicant began constructing a living area above his detached garage and was cited by the Township for enlarging and altering the existing structure without a building permit.  Applicant submitted a building permit application and sought a variance to increase the height of his garage to 28 feet where the Township’s Zoning Ordinance (Zoning Ordinance) permitted a height of only 20 feet (a 40% deviation).  Applicant testified at the zoning hearing board hearing that he wanted to add a second floor to accommodate overnight guests and that, prior to construction, he contacted the Township’s Zoning Officer who advised that he needed no permits.  Further, building on top of his existing garage was his only option due to “spatial constraints” including an in-ground pool and requiredside yard setbacks. The Township’s Zoning Hearing Board (ZHB) granted the variance as de minimis and, in the alternative, because it met the requirements of a dimensional variance.  On appeal by the Township, the trial court affirmed the ZHB’s decision.

On further appeal by the Township, the Commonwealth Court vacated the trial court’s order and remanded on the de minimis argument, and reversed the trial court’s decision on the standard dimensional variance.  The Court explained the de minimis doctrine is “an extremely narrow exception to the heavy burden of proof which a party seeking a variance must normally bear.”  However, where it applies, “there is no need to resort to any other theory of relief.”  To obtain a variance under the de minimis doctrine, an applicant must show that “(1) only a minor deviation from the zoning ordinance is sought and (2) rigid compliance with the ordinance is not necessary for the preservation of the public interests sought to be protected by the ordinance.”  The Court explained it is not clear whether a 40% deviation is de minimis because “the grant of a de minimis variance depends upon the circumstances of each case.”  In addition, while Applicant argued there were other accessory structures in the area that exceeded 20 feet so that rigid compliance was not necessary to preserve the public interest, the Court remanded to determine what types of buildings were taller than 20 feet and why.

The Court also distinguished Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43 (Pa. 1998), from Applicant’s requested standard dimensional variance.  In Hertzberg, the dimensional variances were necessary to bring the property into compliance with the ordinance, because an unnecessary hardship related to an existing structure that was blighted or a legal preexisting nonconformity.  In Applicant’s case, the proposed dimensional variance would create the nonconformity.  Further, Applicant did not need the variance to “construct the second floor addition on the garage in order to make reasonable use of the Property” because he already was using the Property as his residence.  Accordingly, the variance should have been denied.

Date of Decision: 1/8/18

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