The state Supreme Court has agreed to hear arguments over whether a property owner seeking a use variance should be entitled only to the minimum variance necessary to provide relief.
The case raises an apparent issue of first impression.
The justices issued an order granting allocatur in South of South Street Neighborhood Association v. Philadelphia Zoning Board of Adjustment on August 5.
In September 2012, the Commonwealth Court ruled 2-1 to affirm Philadelphia Court of Common Pleas Judge Paul P. Panepinto’s ruling, which had upheld a decision by the Philadelphia Zoning Board of Adjustment.
Judge P. Kevin Brobson, writing for the majority in South of South Street, said that while both the state Municipalities Planning Code and the Philadelphia Zoning Code include language requiring adjudicating bodies to grant the minimum variance necessary to afford the requester relief, this requirement “appears to pertain more to dimensional variance requests” than to use variance requests.
“The rule of minimization has clear application in the context of a dimensional variance, because an applicant should be entitled to a modification of a dimensional zoning requirement only to the extent necessary to grant relief,” Brobson said. “Otherwise, an adjudicator or reviewing court could provide relief that goes beyond the necessity of curing an unnecessary hardship under the applicable zoning ordinance. In the context of a use variance, the criteria other than the minimization requirement serve the purpose of placing restrictions on the exercise of a zoning board’s inherent power to exercise discretion in the granting of a variance.”
Read more about it in Monday’s Legal.