Landowner Prevented From Changing The Use Of His Property
Written by: Alan Nochumson
Wilson v. Plumstead Township Zoning Hearing Board is a cautionary tale on why landowners should not downplay zoning restrictions encumbering their property prior purchase.
In Wilson, the landowner purchased a single-family residence located on the heavily traveled Route 611. The property was zoned as R-2 Residential. Under local zoning regulations, a R-2 Residential property could be used as a “Home Occupation” or, in other words, a use “conducted within an existing dwelling which is the bona fide residence of the principal practitioner.” Unlike a R-2 Residential property, zoning regulations designates a F3 Professional Office property as allowing landowners who do not reside on the property to maintain “business, professional or governmental offices other than [a medical or veterinary office].”
After purchasing the property, the landowner in Wilson immediately started renovations on his “residence.” As the landowner proceeded with the renovations, the township’s zoning officer noticed work throughout the residence typical of an office, but was assured by the landowner that the renovations were only for a residence with a “Home Occupation”. After the renovations were completed, the zoning officer discovered that the landowner was not residing at the property and that the property was being used solely as an office. The zoning officer thereafter issued an enforcement notice for operating an impermissible F3 Professional Office.
OWNER SEEKS VARIANCE
Instead of appealing the enforcement notice, the landowner filed a variance application with the zoning board seeking to utilize the property as an F3 Professional Office.
The zoning board subsequently denied the landowner’s application. Among other things, the zoning board noted that the landowner bought the property with knowledge that he could not conduct his business as an F3 Professional Office, so any hardship created was self-inflicted. The landowner appealed the zoning board’s decision to the trial court.
Taking additional evidence of the commercial uses of neighboring properties, the trial court reversed the zoning board’s decision and granted the variance. The trial court found that an “overwhelming majority” of the neighboring properties contained a “commercial use.” The trial court also reasoned that “the non-residential and commercial nature of the area near the Property renders it largely unusable for traditional residential purposes.” The township then appealed that decision to the Commonwealth Court.
MAJORITY OPINION
According to the Commonwealth Court in Wilson, in municipalities governed by the Municipalities Planning Code (MPC), an applicant for a variance has the ‘heavy burden’ of establishing: “an unnecessary hardship will result if the variance is denied, due to the unique physical circumstances or conditions of the property; because of such physical circumstances or conditions the property cannot be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; the hardship is not self-inflicted; granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and the variance sought is the minimum variance that will afford relief.”
In reversing the trial court’s decision, a divided Commonwealth Court concluded that the “trial court committed an error of law by not addressing the MPC’s requirement that the hardship justifying the variance not be self-inflicted.”
The majority, agreeing with the zoning board, found that any hardship resulting from the denial of the variance was self-inflicted because the landowner purchased the property knowing the applicable zoning regulations.
The majority heavily criticized the landowner’s reliance on the Commonwealth Court’s previous decisions in In re Appeal of Grace and Vacca v. Zoning Hearing Board of Borough of Dormont.
In Grace, the Commonwealth Court vacated the denial of a variance request to allow the construction of a single-family dwelling in a residential district on a pre-existing nonconforming lot that did not meet the township’s dimensional requirements. Due to new size and set back requirements of subsequently enacted zoning regulations, the property in Grace became nonconforming. The hardship in Grace was that the zoning ordinance’s dimensional and set back requirements prohibited the construction of a single-family dwelling on a residentially zoned lot because of the lot’s size, which pre-dated the zoning ordinance.
Unlike Grace, the majority believed that the hardship in Wilson was created by the purchase itself, not by the characteristics of the property. The majority reasoned that: the “hardship, which derives from [the] [l]andowner’s inability to utilize the [p]roperty solely as an office, was known or knowable at the time of purchase and prior to the renovations. In Grace, it was not just the current property owner, but also every subsequent owner of the property, that would not be able to construct a residence within the restrictions of that residential district. Here, the evidence of record reveals that, not only can [the] [l]andowner utilize the [p]roperty for a permissible Home Occupation, but also he and other neighboring landowners are currently operating permissible Home Occupations. Thus, the facts of this case are distinguishable from Grace because, here, [the] [l]andowner’s claimed hardship does not derive from the inherent characteristics of the [p]roperty but, rather, from his personal desire to gain a greater use of the [p]roperty from the permissible and currently viable uses allowed in the R-2 District.”
Moreover, the majority noted that Vacca actually supported a denial of the landowner’s requested variance. In Vacca, the landowner sought a variance to allow the commercial use of his residentially zoned property presenting evidence of the commercial uses of surrounding property and his property’s placement on a heavily traveled road. Affirming the denial of the requested variance, the Commonwealth Court in Vacca concluded that “the property’s current use, as a single-family rental property, established that it was, in fact, being put to a reasonable use as zoned and, thus, did not justify the grant of a variance” and “further reasoned that the claimed hardship was self-inflicted because the landowner had recently paid a high price for the property under the false assumption that he would receive a variance.”
In Wilson, the majority pointed out that, similar to Vacca, the landowner purchased “the [p]roperty under a false assumption, or with prior knowledge, that he could not use his [p]roperty solely as an office.”
DISSENT
In a passionate dissent opinion, Judge Robert Simpson disagreed with the majority’s discussion of self-imposed hardship. The judge pointed out that the majority twisted the hardship at stake in Wilson. The judge noted that the trial court identified the hardship as “the surrounding parcels of land are dissimilar and disharmonious” and “the non-residential and commercial nature of the area near the property renders it largely [unusable] for traditional residential purposes.” In contrast, the judge believed that the majority unreasonably redefined the hardship as the “[l]andowner’s inability to utilize the [p]roperty solely as an office.”
The dissenting judgment then could not fathom “how the dissimilar and disharmonious situation found by the trial court could possibly be created by the landowner’s purchase.” The judge believed that “[t]hese conditions existed independent of any action of or any thought by the landowner. Whether or not these conditions constitute unnecessary hardship (which is a different question), they were not created by and existing for the first time when the property was purchased.”
LESSONS LEARNED
Since Philadelphia is exempt from the MPC, the majority’s decision in Wilson will likely have no direct impact on variance applications made on properties located within the city limits. Landowners in Philadelphia and throughout the Commonwealth, however, should not downplay the potential risk associated with ignoring the use restrictions imposed by applicable zoning regulations; otherwise, they could be prevented from using the property for its anticipated purpose.
Reprinted with permission from the February 27, 2006 edition of The Legal Intelligencer © 2006 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
