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.

Variance Law: An Overview

A use variance involves a proposal “to use property in a manner that is wholly outside zoning regulations.” See Hertzberg v. Zoning Board 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. See 53 P.S. Section 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.