Hertzberg v. Zoning Hearing Board of Adjustment of the City of Pittsburgh

In Hertzberg v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 721 A.2d 43 (1998), our Supreme Court reasoned that dimensional variances differed significantly from use variances, because applicants seeking dimensional relief within an area where a use is permitted are "asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations." Id. at 257, 721 A.2d at 47. The Supreme Court observed that the facts in Hertzberg presented an appropriate forum to address the distinction between use and dimensional variance requests and the appropriate analysis courts should apply based upon that distinction. The Court first discussed a pre-Hertzberg decision, O'Neill v. Zoning Board of Adjustment, 434 Pa. 331, 254 A.2d 12 (1969), that hinted at the need for courts to reflect upon the distinction. O'Neill involved an applicant who sought to construct a twenty-six story apartment building consisting of 225,809 square feet of floor space and an open area of only 5%. The property was located in a C-3 commercial district which permitted the construction of apartment buildings but limited the allowable floor space to 84,646 square feet and required an open area of 20%. O'Neill was not the appropriate case to apply a less strict standard for the grant of a dimensional variance because the 'apartment building would be more than a mere technical and superficial deviation from the space requirements. The building would contain approximately two and one half times as much floor space as is now permitted under the zoning ordinance. In such a situation, petitioner's remedy would appear to be a rezoning and not a variance. O'Neill, 434 Pa. at 338, 254 A.2d at 16. Hertzberg, 554 Pa. at 258, 721 A.2d at 47. The Hertzberg Court distinguished O'Neill, noting that the applicant before the Court was seeking "to make do with the size of the building as is, which is smaller than the zoning requirements. Thus, the case ... is one in which 'a mere technical and superficial deviation from space requirement' is sought." Id.