In this zoning appeal out of Bucks County. the Commonwealth Court was asked whether the existence of man-made improvements that exceeded the permitted impervious coverage on a property could constitute a sufficient hardship to warrant the issuance of a variance. In concluding that such improvements could not, the court held that generally for a unique condition to warrant a variance it must relate to the physical conditions of the land itself and not to man-made improvements, such as poured asphalt and concrete.


The Sills (“Applicants”) applied for a variance from the impervious surface limitation in the Warrington Township Zoning Ordinance (the “2012 Application”).  The existing improvements on their property—a detached single-family residence, a two-car garage, a wooden deck, a flagstone patio, a driveway—exceeded the permitted impervious coverage limitation, and they wished to construct a 1,421 square foot detached garage to house their collection of vintage VW cars. Taubenberger (“Objector”), the property owner immediately adjacent to the location of the proposed garage, appeared at the ZHB hearing and expressed her objections to the variance based on the proposed structure’s size and its use to store and maintain cars. Despite these objections, the ZHB granted the requested variance on the basis that the garage was necessary for Applicants to store and maintain their cars under roof, and that the existing nonconforming impervious surface made it impossible for them to construct any reasonable detached garage. Objector appealed.  Immediately after the issuance of the ZHB’s decision, Applicants submitted a second application seeking a variance from the 10-foot height restriction on “utility sheds” (the “2013 Application”). At the hearing on the 2013 Application, Applicants submitted evidence of other garages in the surrounding area that were similar in size to the proposed garage. The ZHB determined that no variance was required because the proposed structure was not a “utility shed,” but that if a variance were needed, Applicants had demonstrated entitlement to it. Objector again appeared in opposition to the application, and appealed the ZHB’s decision.  The Court of Common Pleas of Bucks County consolidated and affirmed the ZHB’s decisions, and Objector appealed.

On appeal the Commonwealth Court reversed in part and affirmed in part. As an initial matter, the court found it was error for the trial court to rely on evidence presented at the 2013 Application hearing to support the ZHB’s approval of the 2012 Application. It then held that Applicants were not entitled to the impervious surface variance because the proposed garage was not necessary for the reasonable use of the property.  Further, the court held that the existing nonconforming impervious surface was not a unique physical condition peculiar to the property. Were such man-made improvements to be considered a sufficient hardship to justify a variance, the court reasoned, anyone with a nonconforming property, or who had already improved their property to the maximum extent permitted, could establish a hardship and continue to build on their property and exceed the ordinance’s restrictions. The court affirmed the trial court’s decision as it related to the 2013 Application.

Objector Irene Taubenberger was represented by attorneys from Eastburn and Gray including Michael J. Savona and Zachary A. Sivertsen.

Click here to read: In Re Appeal of Taubenberger, 2692 CD 2015 (Pa. Commw. Ct. Dec. 9, 2016).

Edited by:

Sivertsen_BLOGZac Sivertsen