In a world where technology and community needs frequently out-pace zoning updates, permitting zoning modifications by conditional use is an opportunity for municipalities and developers to collaborate to help ensure development projects are well designed, innovative, publicly supported and, therefore, approved.  Most people involved in zoning and development know that denied variances – (i.e., modifications of the strict application of zoning ordinance provisions) can sink otherwise well designed, innovative and publicly supported projects.  Regardless of the use, district or community, the rigid “hardship” criteria for variances, set forth in Section 910.2(a) of the Pennsylvania Municipalities Planning Code (“MPC”), are extremely inflexible.  That inflexibility often stymies creativity and constrains innovation.  Indeed, the antiquated criteria is inconsistent with and contrary to other provisions of the MPC and, at times, the desires of many municipalities that wish to accommodate newer development innovations and trends.

Occurring more often are scenarios where variances are necessary to accommodate the preferences of the municipality and to permit innovative and sustainable mixed-use developments with design enhancements.  In such instances, zoning hearing boards, municipal elected and appointed officials, and the public all may agree that the variances (i) will help enhance the project and benefit the surrounding neighborhoods and communities and (ii) should be granted in spite of not complying with the hardship criteria.  Ultimately, though, the variances are denied due to the higher standard and stricter scrutiny associated with the MPC’s traditional approach for considering variances.

Even if municipalities partner with developers or the public in drafting innovative plans and ordinances based on initial development concepts, the subsequent and more detailed engineering design phases often bring to light unforeseen issues that preclude strict compliance with the zoning ordinance.  In most instances, the developer or property owner must apply for variances and demonstrate a true hardship before zoning hearing boards.  Acknowledging the potentially negative effects of requiring a variance in these situations, some municipalities are adopting more innovative and flexible processes whereby applicants can request conditional use approval for modifications of zoning standards.  The basis for these processes is in the MPC which permits zoning ordinance provisions that promote flexibility, economy and ingenuity in development.

Although the MPC does not include express language authorizing governing bodies to grant zoning modifications by conditional use, neither does it expressly prohibit it.  Rather, the MPC includes two specific provisions that municipalities should consider in permitting zoning modifications by conditional use.  First, Section 603(c)(5) of the MPC permits zoning ordinances to include provisions to encourage innovation and to promote flexibility, economy and ingenuity in development.  In addition, Section 605(3) of the MPC permits zoning ordinances to regulate certain uses differently “[f]or the purpose of encouraging innovation and the promotion of flexibility, economy and ingenuity in development . . ., and for the purpose of authorizing increases in the permissible density of population or intensity of a particular use based upon expressed standards and criteria set forth in the zoning ordinance.”

Municipalities utilizing these alternative zoning modification approval processes have included express standards and specific criteria for evaluating the modification requests.  Among others, the standards and criteria could include that the modification:

  • is generally consistent with or better serves the intended purposes of the district, zoning ordinance or community plan;
  • will not result in any danger to the public health or welfare, or create a substantially adverse impact to adjoining properties or to future inhabitants within the development or district; and
  • will allow for equal or better, and more desirable and acceptable, results while representing the amount of relief necessary.

While some municipalities limit the applicability of these alternative processes by allowing them to be used to modify only certain standards, uses, developments or districts, others take more permissive approaches and permit modifications to any zoning standard.

The world is changing quickly and zoning cannot keep up with it.  Accordingly, municipalities should consider permitting by conditional use modifications to the requirements of their zoning ordinances to meet the ever-changing needs and technology of the 21st Century.  Please contact any member of the McNees Wallace & Nurick Land Use Group with questions regarding this post or for assistance with any land use issues.