Developers seeking variances must establish that they are seeking “the minimum necessary to make reasonable use of the property,” the Pennsylvania Commonwealth Court has ruled.

In Prime Development Group v. Upper Makefield Township ZHB, the developer submitted an application for several variances to construct a single-family home on a non-conforming half-acre lot where the zoning ordinance required a minimum lot area of one acre.

In a zoning hearing, Prime’s engineer did not testify that the proposed residence was the smallest that could be built on the property, instead indicating that the proposed residence was of a size and style the Prime believed to be marketable. The engineer also acknowledged that he did not consider a smaller residence which would have reduced the required zoning relief.

Accordingly, the ZHB denied the zoning relief holding that Prime did not establish that the variance requested was the minimum necessary to make reasonable use of the property; emphasizing that, to satisfy the variance criteria, the requested variance must represent the least modification of the ordinance.

Both the trial court and the Commonwealth court upheld the ZHB’s decision finding that the requested variance must afford relief that “will represent the least modification possible to the regulation in issue.”

In its decision, the Commonwealth Court found that Prime did not properly establish a record to show that the proposed home, together with the relief required for it, satisfied the “lease modification” criteria. The manner in which testimony is presented in these types of cases (i.e., building a single-family home on a non-conforming lot) is crucial to satisfy the requirement for the requested relief as the reviewing agency must allow some reasonable development of a non-conforming lot.

If you have any questions concerning development of non-conforming lots, please contact Rob Gundlach at 215.918.3636 or rgundlach@foxrothschild.com.