Land & Renewables Connection
What is a Variance?
While municipal zoning ordinances establish both the types of land uses authorized in areas of a community and the standards associated with those uses, a variance is a form of relief that allows a property owner to use the land in a different way than what is strictly required by the zoning ordinance. See, Kneebone v. Zoning Hearing. Board of Township of Plainfield, 276 A.3d 705, 721 (Pa. 2022). Although variances offer a departure from the specific requirements of a municipal zoning ordinance, there is a well-developed body of law governing variances.
Variances are considered by municipal zoning hearing boards. See, Zoning Hearing Board of Willistown Township v. Lenox Homes, Inc., 439 A.2d 218 (Pa. Commw. Ct. 1982). Section 910.2 of the Pennsylvania Municipalities Planning Code allows municipal zoning boards to grant variances if all of these criteria are satisfied:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located.
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property.
(3) That such unnecessary hardship has not been created by the appellant.
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
53 P.S. § 10910.2(a). An important component of the variance analysis is the existence of a hardship.
A variance is appropriate only where the property is subject to the hardship, not the person. Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa. Commw. Ct. 2001). Someone seeking a variance must show “unnecessary hardship in order to obtain a variance, although the stringency of the standard for proving an unnecessary hardship is different depending upon the type of variance sought.” In re Boyer, 960 A.2d 179, 182 (Pa. Commw. Ct. 2008). In general, there are two types of variances, dimensional variances and use variances.[1]
“A dimensional variance involves a request to adjust zoning regulations to use the property in a manner consistent with the regulations, whereas a use variance involves a request to use property in a manner that is wholly outside zoning regulations.” Slate Hills Enterprises, Inc. v. Zoning Hearing Board of Portland Borough, 303 A.3d 846, 849 (Pa. Commw. Ct. 2023) (citing Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998)). A “dimensional” variance can involve things like changing setback distances to property lines, or changes to the heights of fences and buildings. In other words, these are uses that are allowed by the zoning ordinance, but their size or location is planned to be different than what is required by the ordinance. On the other hand, a “use” variance involves a land use itself which is not authorized by the zoning ordinance. That can require someone seeking a “use variance” to meet a higher standard to be entitled to a variance than someone seeking a “dimensional variance”.
A variance application involves a public hearing before the municipal zoning board, where a record is created by the presentation of testimony and evidence. 53 P.S. § 10908. A municipal zoning board can deny a variance application or, if it chooses to grant it, the municipal zoning board can attach reasonable conditions that it deems necessary to implement the requirements of the statewide Municipalities Planning Code and the local zoning ordinance. 53 P.S. § 10910.2(b).
While municipal zoning boards can, and do, grant variances, property owners should be aware that the law requires a showing of certain details to demonstrate entitlement to a variance. A well-developed presentation that addresses the legal considerations that must be shown for a variance can make an impact in the grant or denial of that relief. If you are seeking a variance approval, or opposing a variance, Houston Harbaugh’s zoning and land use attorneys can assist. Contact Brendan A. O’Donnell by email at odonnellba@hh-law.com or by phone at 412-288-2226.
This commentary is offered for information purposes only, and is not intended to provide legal advice or forming an attorney-client relationship.
[1] There is also a “variance by estoppel”, which has its own criteria and will not be discussed here.
About Us
These are cutting edge legal issues. The law of the future. Renewable energy, zoning and land use issues will shape the future of growth in the region. Houston Harbaugh’s Renewable Energy, Zoning and Land Use practice focuses on assisting clients maximize and protect the value of their properties, whether related to renewable energy, commercial or residential development opportunities.
As renewable energy becomes more reliable, efficient, inexpensive and technologies associated with carbon capture and storage advance, Pennsylvania, West Virginia and Ohio are in position to benefit from these two parallel energy development opportunities. The region’s geographic location and existing infrastructure presents unique opportunities for property owners to participate in solar, wind, geothermal, other renewable energy developments, as well as for carbon capture, carbon sequestration and carbon storage projects. Additionally, legacy oil, gas and coal infrastructure may be repurposed and reused in connection with new energy developments.
With any development, whether renewable energy, commercial or residential, there are a host of zoning and land use issues that directly impact the most basic parts of daily life of both individuals and communities. Determining where and how land can be developed impacts property ownership, property value, quality of life and the economic development and wellbeing of communities. Zoning and land use issues are, on one hand, matters of local concern but, on the other hand, potentially subject to county or state regulations.
The Renewable Energy, Zoning and Land Use practice draws on Houston Harbaugh attorneys’ experience in energy, oil and gas and real property matters to advance clients’ interests in both transactional and litigation matters. Houston Harbaugh’s Renewable Energy, Zoning and Land Use attorneys assist clients with matters including:
- Solar energy leases;
- Wind energy leases;
- Pore space ownership for carbon capture / carbon sequestration / carbon storage, geothermal and waste disposal;
- Ownership of legacy oil, gas and coal infrastructure for repurposing/renewable energy usage;
- Compliance with existing solar, wind and renewable energy leases;
- Surface and subsurface accommodation between competing land uses;
- Variance, Special Exception and Conditional Uses applications/hearings;
- Land use appeals;
- Eminent domain
Brendan A. O'Donnell
An attorney in Houston Harbaugh’s Oil and Gas Practice, Brendan O’Donnell has represented oil and gas owners across Pennsylvania in a wide array of oil and gas matters for over a decade. This experience has involved not only the Marcellus shale and the Utica shale, but more traditional oil and gas development as well.
Brendan maintains a diverse practice, representing clients in all matters involving oil and gas spanning the transactional and litigation realms. On the transactional front, Brendan routinely assists landowners with negotiating oil and gas leases, pipeline rights of way and surface use agreements and subsurface easements related to horizontal drilling as part of Marcellus and Utica shale development. Brendan also frequently reviews royalty statements and oil and gas ownership issues as well as preparing deeds and title curative documents. Brendan also maintains an active litigation practice, representing clients in state and federal courts, as well as private arbitration matters. This litigation often involves title disputes, pooling and unitization challenges, lease termination questions and royalty/ post-production cost claims.
Assisting clients across the spectrum from contract negotiations through litigation and appeals gives Brendan valuable first-hand knowledge about how oil and gas agreements are prepared, how disputes arise and how courts resolve these issues. Brendan stays up-to-date on developments in oil and gas law and writes frequently on the these topics. Additionally, as alternative energy generation like wind and solar are increasingly being developed in oil and gas producing regions, Brendan assists clients with navigating the interplay between these complex energy developments and evaluating solar agreements.
Brendan complements his oil and gas practice by representing property owners, including oil and gas owners, in zoning and land use matters. Brendan has represented clients before municipal bodies and in appeals to court. Brendan is also active in the firm’s Energy and Environmental Law Practice.
Regardless of the type of representation, Brendan prides himself in providing clients with realistic, pragmatic advice. Hiring an attorney is an investment and Brendan focuses on how he can provide value to clients.
Outside of the office, Brendan serves on the Town of McCandless Planning Commission and lives with his family in McCandless. Brendan has visited every one of Allegheny County’s 130 municipalities.
