Daily Development for Wednesday, February 11, 2004 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; VARIANCES: A zoning ordinance's requirements for off-street parking are to be categorized as "dimensional" and thus the normally harsh variance test is relaxed when one seeks relief from off-street parking mandates. In considering whether to grant a variance under this relaxed standard, a court looks to a number of factors including the condition of the neighborhood around the property. Mitchell v. Zoning Hearing Board of the Borough of Mount Penn, 2003 WL 22682460 (Pa.Cmwlth.). School District sought to purchase an abandoned school contingent upon obtaining the zoning and land use approval required for reestablishing a school on the premises. In order to obtain approval, School District applied to the Zoning Hearing Board of the borough for a variance with respect to the local ordinance's requiring, inter alia, one off-street parking space per one employee of an elementary school. After the Board granted the variance, a group of neighbors appealed the grant and the trial court affirmed. The appellate court outlined the heavy burden for obtaining a variance in Pennslyvania. One seeking a variance must establish, inter alia, that the zoning ordinance imposes unnecessary hardship resulting from unique physical conditions of a property. Unnecessary hardship can be established by demonstrating either that physical characteristics of the property are such that the property is unusable for permitted purposes or can be conformed to such purpose only at a prohibitive expense or that the characteristics of the area are such that the lot has either no value or only a distress value for any permitted purpose. But the court noted that the Supreme Court of Pennsylvania established a more relaxed test in Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (1998), in which the court found that for a dimensional variance, as opposed to a use variance, a court could consider multiple factors in determining whether an applicant demonstrated unnecessary hardship. Those factors included: cost of the strict compliance with the zoning ordinance, the economic hardship from the denial of the variance, and the characteristics and conditions of the surrounding neighborhood. Citing Hertzberg and two other cases, Vitti v. Zoning Board of Adjustment of the City of Pittsburgh, 710 A.2d 653 (Pa. Cmwlth. 1996) and Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791 (Pa.Cmwlth. 1996), the court found that off-street parking was dimensional in nature and thus applied the relaxed standard for variances from Hertzberg. The Objectors argued, however, that Hertzberg would not apply to the present case because the School District property was not located in a blighted urban neighborhood but in a well maintained suburban neighborhood. The appellate court reject this argument, noting that the neighborhoods characteristics were just one of the factors to be considered when determining unnecessary hardship. In successfully showing unnecessary hardship, the School District demonstrated that creating off-street parking would require great expense and would necessitate the demolition of part of the existing building. Furthermore, the School District showed that it was not feasible to develop the property for other uses, that the use would not alter the character of the neighborhood and that disbursing some of the traffic from another nearby school would actually decrease congestion. Reporter's Comment: This case demonstrates the relaxation of the tough standards found everywhere for obtaining variances. The highest hurdle typically is the need to show unnecessary hardship. The broad factors considered here and the plain facts leading to the court's conclusion make this case significant. Editor's Comment: The distinction between use variances and dimensional variances is not unique to Pennsylvania. In fact, here in Missouri, until quite recently, the courts were of the view that zoning officials lacked the legal authority to grant use variances, as they smacked of "spot zoning." But how is off street parking a dimensional variance? Huh? Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. 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