The Pennsylvania Commonwealth Court has ruled that zoning hearing boards have the power to grant a de minimis use variance where the variation requested is minor, and rigid compliance with the zoning ordinance is not necessary to protect public policy concerns.

In Soland v. Zoning Hearing Board of East Bradford Township, the appellate court held that there is no rule or legal precedent that restricts such a determination to dimensional variances only. The ruling upholds a zoning approval of a bed and breakfast (B&B).

Township Zoning Ordinance Restriction

The property at issue in Soland was previously improved with a residential home known as the “Paxon House,” along with several accessory structures, including one known as the “Tenant House.” The property owner desired to use Tenant House as a B&B and Paxon House as their private residence. The East Bradford Township Zoning Ordinance restricted B&B uses to Class I historic resources only. While the Paxon House was a Class I historic resource, the Tenant House was not. Therefore, a use variance was sought.

The Zoning Hearing Board (ZHB) granted the variance finding the variance was de minimis. However, a trial court reversed the ZHB’s decision, determining that the variance was self-created as the property owner could have rearranged the living spaces. The court rejected the ZHB’s finding the variance was de minimis, holding that such variances were exclusively reserved for dimensional variances.

No Rigid Rule

Now the Commonwealth Court has reversed the trial court’s decision. The court acknowledged that the de minimis variance doctrine has historically been rejected in use variances cases, but found there was no rigid rule against applying it in the use variance context.

“Contrary to the trial court, we hold that a use variance can be de minimis,” the court stated.

The relief in a de minimis variance has no set criteria, the court noted, and the grant of a de minimis variance depends upon the circumstances of each case. But the court also stated that application of the de minimis doctrine to use variance requests should be rare and limited to extraordinary situations.

Therefore, while the Soland decision provides property owners with an avenue to pursue a de minimis use variance, a property owner would be wise to navigate this avenue carefully and present the facts of the specific circumstances in a way that satisfies this rare and extraordinary standard.

Please feel free to contact Daniel Lyons at daniellyons@foxrothschild.com or 215.918.3693 if you have questions about zoning laws or wish to pursue a use variance for your property.