The Commonwealth Court was required to determine whether or not a zoning board can grant density and lot-width variances without proof of hardship. The court ruled that when the asserted hardship amounts to nothing more than the landowners desire to increase the profitability of his or her land, a variance is improper.
The landowner in this case owned a single lot in Middletown Township. He sought to subdivide the land into two lots. The landowner sought two variances: (1) from the zoning ordinance’s maximum density requirement, which only permitted 1.2 dwelling units per acre, and (2) from the zoning ordinance’s lot-width requirements, which permitted only minimum lot widths of 125 feet. If subdivided, the lots would only be approximately 107 feet wide. Furthermore, the landowner sought to construct single-family homes on each new lot, which would increase the density to 1.45 dwelling units per acre.
At a hearing in front of the Middletown Township Zoning Hearing Board (the “Board”), the landowner testified that the single-family homes would be “high end” and sell for approximately $630,000 each. The landowner also testified that the lot widths would fall short of the zoning ordinance’s requirements by approximately 15% and that there was no adjoining land for sale that would permit the landowner to cure this defect. Neighbors also testified, stating that the new homes would enhance the value of the surrounding area. The Board declared that the variances were necessary and warranted. Other neighbors, however, objected and appealed. The trial court affirmed without taking additional evidence. The objectors appealed to the Commonwealth Court.
First, the Commonwealth Court determined that the Board erred by granting the landowner a variance from the zoning ordinance’s maximum density requirement. The court stated that it was clear from the evidence that the Board did not grant the variance because the landowner satisfied the elements necessary for a de minimis variance. The de minimis variance doctrine only applies when (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.
Here, the Board made no findings that the landowner proved the requisite hardship or that the hardship was not self-inflicted. The only reason the landowner needed the variance from the maximum density requirement was because he intended to subdivide the land and build two homes, thus creating the hardship. Furthermore, the landowner could use the property for one compliant home rather than subdividing and seeking zoning relief, proving that this variance was not de minimis.
Second, the Commonwealth Court held that the Board erred by granting the landowner a variance from the minimum lot width requirement. According to the court, the criteria to establish a hardship to obtain a variance is not met even under the relaxed standards for dimensional variances when the asserted hardship amounts to nothing more than the landowner’s mere desire to increase profitability. In this case, the Board made no findings regarding the physical aspects of the property. It was not irregularly shaped or in any other condition that would justify the variance. Furthermore, while landowner argued that these variances would also be de minimis, the court declined to hold that two variances of 15% are de minimis.
Click here to read: Dunn v. Middletown Twp. Zoning Hearing Bd., No. 1436 C.D. 2015 (Pa. Commw. Ct. July 11, 2016).
Bob Turchick, Law Clerk
Leave a Reply