Commonwealth Court Reigning in Hertzberg Hertzberg Denying Variance Granting Variance

HertzbergIn 1998 the Pennsylvania Supreme Court formally recognized and legitimized a truism in Pennsylvania zoning practice – that many zoning hearing boards grant dimensional variances on grounds less stringent than are strictly required by the Municipalities Planning Code. In response a stampede of cases followed citing the case, Hertzberg v. Zoning Board of Adjustment of the City of Pittsburgh, 721 A.2d 43 (Pa. 1998), as grounds for a dimensional variance and some that just looked like a dimensional variance. In 2001, the Commonwealth Court spent a great deal of ink either explaining or distinguishing Hertzberg.

When compliance with a zoning ordinance imposes an unnecessary hardship, a landowner may seek relief from the provisions of the ordinance by filing a variance request with the zoning hearing board. Generally, to secure variance relief an applicant must prove that five statutory standards will be met, where relevant, namely: 1) unique physical circumstances or conditions peculiar to the property caused the unnecessary hardship; 2) because of the physical conditions, there is no possibility the property can be developed in strict conformity with the ordinance; 3) the hardship complained of is not self-inflicted; 4) granting the variance is not detrimental to the public welfare; and 5) the variance is the minimum necessary to afford relief. 53 Pa.C.S. �10910.2(a). Criteria (2), in particular, is a difficult standard to meet for any property with an existing building. And, traditionally, mere economic hardship has not been well received by the courts as a basis for a variance.