Zoning Permits: Variances

A zoning variance is a type of land use permit required for a developer to use or build their property that does not meet the requirements of the zoning ordinance.

What Industry Must Show in Order to Succeed at receiving a variance:

The standards that must be met in order to grant a variance are quite high. Pursuant Section 910.2 of the Municipalities Planning Code, in order for a Zoning Hearing Board (ZHB) to grant a variance, the applicant must prove the following:

1. There are unique physical conditions peculiar to the property and unnecessary hardship is due to those conditions.

2. Because of the physical conditions, there is no possibility that the property can be developed in strict conformity with the Zoning Ordinance, and the variance is needed to enable reasonable use of the property.

3. The unnecessary hardship has not been created by the applicant.

4. Granting the variance will not be detrimental to the public welfare.

5. The requested variance is the minimum variance that will afford relief and is the least modification of the regulation at issue.

What is a variance?

A variance provides a way for a property to deviate from the zoning ordinance. This approval is required when someone would like use a property in a different manner - or for a different purpose - than legally allowed by the zoning ordinance.

There are two common types of variance requests: use and dimensional.

A use variance is requested when someone wants to use their property in a way that is inconsistent with the uses that are permitted in the zoning ordinance. An easy example of this is if an industrial use desired to develop in a commercially zoned district.

A dimensional variance is requested when someone wants to develop in a way that is still compatible with the existing uses, but do so beyond the dimensional limits in the zoning ordinance.

An example of this may be a height variance. For instance, if someone wanted to build a 45-foot commercial building in a zone that only allowed a 40-foot height, the applicant would need to prove that building lower would provide undue hardship. This could be because the future tenant of the building requires ceilings at a height for loading and unloading reasons, but shrinking the floor height elsewhere would not provide enough clearance for, say, mechanical units or fireproofing measures.

Resources

  •          MPC Section 910.2. Zoning Hearing Board’s Functions; Variances
  •          The Planning Series #6: The Zoning Hearing Board (See section V. on Hearing Procedures)
  •          The Planning Series #7: Special Exceptions, Conditional Uses, and Variances.

People involved in variances

  •          Zoning Hearing Board
  •          Possibly Zoning Officer
  •          Planning Commission may be required to review, depending on local rules
  •          Public - during opportunities to comment
  •          Property owners who submits variance request

Timeline for variances

Application is first submitted to the Zoning Hearing Board (or ZHB). If the ZHB decides, they can also require that the application is first submitted to the Zoning Officer.  The Zoning Officer then makes a recommendation before passing the application on the ZHB. Similarly, the Planning Commission is not required to but may review an application and make a recommendation. 

Within 60 days the ZHB should hold a public hearing on the application.

ZHB must give public notice of the hearing at least 7 days before it begins.

Decision/Issuance: A decision should be issued by the ZHB within 45 days of the hearing.

How to Challenge Variances

A decision granted by a Zoning Hearing Board regarding a variance can be appealed to the Court of Common Pleas of the county where the land development is proposed. This must occur within 30 days of the ZHB’s decision.

Opportunities for Resident Engagement

Key stakeholders, such as adjacent residents or property owners, have the opportunity to be active within the hearings as “protestants.” Protestants have the opportunity to provide evidence and testimony to support their particular case, be it individual or as a group. Ideally, the governing body allows time for the public to reflect and comment prior to coming to a decision.

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