July 2, 2024
Kathleen M. Mannard
It is not every day that “new law” is created in Pennsylvania land use law, but that is precisely what occurred in a recent Pennsylvania Commonwealth Court decision, Soland v. East Bradford Township Zoning Hearing Board, 311 A.3d 1208 (Pa. Commw. Ct. 2024). Soland held that a use variance can be de minimis, where such doctrine previously only applied to dimensional variances. Before Soland and the de minimis doctrine can be examined, it is important to distinguish the difference between a use variance versus a dimensional variance and the burdens of proof for each.
I. Variance Law: An Overview
A use variance involves a proposal “to use property in a manner that is wholly outside zoning regulations.” Hertzberg v. Zoning Bd. of Adjustment of Pittsburgh, 721 A.2d 43, 47 (Pa. 1998). Think of, for instance, a request to have a commercial property in a residential zoning district limited to only residential uses. An otherwise nonconforming use can be approved through a zoning hearing as a lawful use. The general standard for a use variance is for the landowner to establish that there is an unnecessary hardship that prevented the property from being developed in strict conformity with the provisions of the zoning ordinance, such that a variance was necessary to permit the reasonable use of the property. 53 P.S. § 10910.2(a)(1)-(5). The burden of proof for a use variance is a heavy one. Accordingly, a grant of a use variance is typically only applicable in exceptional cases and the reasons for a variance grant should be substantial, serious and compelling.
A dimensional variance also involves a request to adjust from the requirements in a zoning ordinance, but instead of an adjustment in use regulations, the request is for a reasonable adjustment from a zoning ordinance’s applicable dimensional requirement(s), such as, but not limited to, setbacks, building height, impervious surface ratio, parking regulations, etc. The Hertzberg case was a pivotal Pennsylvania Supreme Court decision on dimensional variances. While the statutory standard for a dimensional variance remained the same as a use variance, Hertzberg relaxed the standard for a landowner’s unnecessary hardship for a dimensional variance. The idea being that a grant of dimensional variance is of lesser moment than the grant of use variance. However, generally the burden is still considered a heavy one.
II. De Minimis Doctrine
On top of the usual variance considerations, there is also the de minimis doctrine. The de minimis doctrine is a narrow exception, to the otherwise heavy burden, in dimensional variances cases. The de minimis doctrine can be raised in circumstances where the adjustment from the zoning regulation is so minor and where the traditional variance standards cannot be met by a landowner. The de minimis doctrine only can be applied where two things are present: (1) a proposed minor deviation from the dimensional requirements of a zoning ordinance, and (2) rigid compliance with the zoning ordinance is not necessary to protect the public policy concerns inherent in the ordinance. There is no established criteria for what is considered to be “de minimis” and zoning hearing boards have discretion to apply the doctrine. Notably, the de minimis doctrine has historically only been applied to dimensional variances cases and consistently rejected in use variance cases. As recently as 2016, the Pennsylvania Commonwealth Court has held that “[b]ased on well-established law…the de minimis doctrine does not apply in use variance cases.” Coyle v. City of Lebanon Zoning Hearing Bd., 135 A.3d 240, 246 (Pa. Commw. Ct. 2016). However, as in the recent Soland decision, the Coyle holding is not absolute.
III. Soland – De Minimis Use Variance
On February 20, 2024, the Pennsylvania Commonwealth Court issued an opinion addressing the issue of whether a use variance can ever be de minimis. In Soland v. East Bradford Township Zoning Hearing Board, the Pennsylvania Commonwealth Court held in a 2-1 decision reversing the trial court’s decision, that the de minimis doctrine can be applied to use variances. Although limited to extraordinary circumstances, the decision permits zoning hearing boards to hear de minimis use variance cases where such cases were previously entirely rejected.
In Soland, John Marshall and Dara Gans-Marshall applied to the East Bradford Township Zoning Hearing Board for a use variance from Section 115-48.2(A) of the zoning ordinance, providing that “The only buildings eligible for a bed-and-breakfast estate use shall be owner-occupied Class I historic resources.” The property at issue consisted of 10.96 acres and was improved with a residential home known as the “Paxson House” and several other structures, including a structure used as a veterinary clinic, known as the “Tenant House”. Section 115-48.2(A) of the zoning ordinance restricted a bed and breakfast (B&B) estate to only those buildings that qualified as owner-occupied Class I historic resources. The Paxson House was classified as a Class I historic resource, but the Tenant House was not a Class I historic resource. The Marshalls sought a variance to utilize the Tenant House as part of the B&B estate, as the proposed B&B estate’s guest rooms without owner-occupation, and to use the Paxson House as their private residence. In their request for relief, there was no request for any dimensional relief from the zoning ordinance.
After a hearing on the application the Zoning Hearing Board granted the Marshalls’ variance request. In granting the variance, the Zoning Hearing Board recognized the need for a substantial, serious and compelling reason to grant a variance, but did not apply the general standard for the grant of variance relief. Instead, the Zoning Hearing Board recognized that pursuant to the de minimis doctrine, a variance may also be granted where the request is minor and not necessary to protect the Ordinance’s public policy concerns. In support of its decision, the Zoning Hearing Board cited to Lench v. Zoning Board of Adjustment of Pittsburgh, 13 A.3d 576 (Pa. Cmwlth. 2011) in which the Commonwealth Court held that a de minimis variance was appropriate where the homeowner’s request for a dimensional variance would exceed the zoning code’s 40-foot height restriction by 4 inches.
The neighboring property owners, the Solands, appealed the zoning hearing board decision to the trial court. The trial court held that a use variance could never be de minimis and the Marshalls appealed. Contrary to historical case law, the Court held that “a use variance can be de minimis.” In discussing the rejection of the de minimis doctrine in use variance case law, the Court emphasized that the case law still did not create a rigid rule against the application of the doctrine in use variance case.
Rather, the grant of a de minimis variance is based on the circumstances of each case for the zoning hearing board to ascertain. Accordingly, in Soland, the Court agreed with the zoning hearing board that variance was appropriate because the use deviation was minor, and approval of the variance posed no adverse impact on the public interest.
Notably, the dissenting opinion agreed that the de minimis doctrine could apply to a use variance, but only dissented that the de minimis doctrine was misapplied in the Soland case, thereby affirming the holding that the de minimis doctrine can be applied in use variance cases.
IV. Impact on Zoning Hearing Boards
As a result of the Soland case, zoning hearing boards, and their solicitors, should anticipate that landowners will raise the de minimis standard argument in use variance cases. It is important to reiterate that the Court deemed such cases to be rare and that the standard for use variances remains unchanged. The burden remains high for an applicant seeking a dimensional and/or use variance. Furthermore, the zoning hearing board can still rely upon its discretionary power to assess a variance request under the de minimis doctrine. Still, we can certainly anticipate caselaw developing trying to stretch the scope of the de minimis doctrine in use variance cases.
About the Author:
Kathleen M. Mannard, Esq. is an associate in Wisler Pearlstine’s Municipal and Real Estate, Zoning, and Land Development practice groups. Ms. Mannard represents and advises clients on the myriad of real estate matters impacting municipalities, developers, businesses, non-profits, and individuals. She focuses her practice in all aspects of land use, including subdivision and land development, acquisitions and sales, commercial and residential leasing, title review, permitting, and more.
