How to Determine Whether to Grant a Dimensional Variance to a Nonprofit Social Service Agency ?
In Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 554 Pa. 249, 258-59, 721 A.2d 43, 47-48 (1998), our Supreme Court, reviewing the grant of a variance to a nonprofit social service agency, stated that, in deciding whether to grant a dimensional variance, "courts may consider multiple factors, including the economic detriment to the applicant if the variance was denied, the financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood." Id. at 264, 721 A.2d at 50.
However, in Yeager v. Zoning Hearing Bd. of the City of Allentown, 779 A.2d 595 (Pa. Cmwlth. 2001), a property owner who operated and maintained a car dealership on his property applied for a dimensional variance that would have allowed construction of an additional auto sales and service facility.
The zoning hearing board granted the variance.
The Court reversed and opined:
Ever since our Supreme Court decided Hertzberg, we have seen a pattern of cases arguing that a variance must be granted from a dimensional requirement that prevents or financially burdens a property owner's ability to employ his property exactly as he wishes, so long as the use itself is permitted.
Hertzberg stands for nothing of the kind.
Hertzberg articulated the principle that unreasonable economic burden may be considered in determining the presence of unnecessary hardship.
It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. ... a variance, whether labeled dimensional or use, is appropriate "only where the property, not the person, is subject to hardship." Id. at 598.
Therefore, the Court held that the owner was not entitled to the variance as the property was "well suited to the purpose for which it was zoned and actually used." Id.
The Court commented that the owner had "proven nothing more than that adherence to the ordinance imposes a burden on his personal desire to sell vehicles for Land Rover." Id.