Often times, property owners wish to develop their property in a manner that differs from what is allowed by their local zoning ordinance. When this happens, the property owner must seek and obtain a “variance” from their municipality’s zoning hearing board. Pursuant to Section 910.2(a) of the Pennsylvania Municipalities Planning Code, the board may grant a variance if all of the following relevant factors are established:

(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.

One of the biggest hurdles for property owners is proving that there is an “unnecessary hardship” impacting their property. The hardship must be directly tied to the unique physical circumstances or conditions of the property (e.g., size, shape, location, topography, etc.) and cannot be justified by economic burden or financial loss. While a hardship inquiry looks principally to the physical characteristics of the property that is the subject of the variance request, a 2022 Commonwealth Court decision, Canivan v. Honesdale Borough Zoning Board, illustrates how changes in the use of the property and physical conditions external to the property can also contribute to a legally cognizable hardship.