Property owners in Pennsylvania just got powerful new ammunition in zoning disputes. On May 4, 2026, the Commonwealth Court reversed a trial court decision and held that a landowner cannot be forced to subdivide and sell its property to neighbors as an alternative to obtaining a use variance — even where those neighbors have informally used the land for years.

The decision in Demko v. City of Pittsburgh ZBA reinforces that courts may not substitute their judgment for that of a zoning board when substantial evidence supports the board’s findings, and it clarifies that a board’s use of the word “impractical” rather than the statutory phrase “cost prohibitive” is not automatically reversible error.

For developers and zoning practitioners, the opinion is a strong reaffirmation of the deferential “substantial evidence” standard of review and a practical signal that lay testimony, historical photos, and contextual evidence of surrounding uses can be enough to sustain a variance — no expert witness required.

The Dispute

Chekantz Clan, LLC — a family entity that inherited a long, narrow parcel at 1131 Loraine Street in Pittsburgh — applied for a variance to formalize what had been a reality for decades: parking. The property, roughly 20 feet wide and stretching the full length of a block behind several residential lots on a steep slope, has been used for parking since at least 1980. Because “Commercial Parking (Limited)” is a prohibited use in the R1A-H residential district, the family needed a variance from the City’s Zoning Board of Adjustment.

The ZBA approved the variance in April 2024, subject to conditions: compliance with site development standards, landscaping, and limitation to long-term leases only. Neighboring residents — David Demko, Seth Hallam, and Nicholas Furar — appealed to the Allegheny County Court of Common Pleas, which reversed, finding that the applicant had failed to satisfy three of the five statutory criteria for a use variance under Pittsburgh Code § 922.09.E. The family then appealed to the Commonwealth Court.

The Court’s Decision

Writing for the majority, Judge Covey reversed the trial court and reinstated the ZBA’s approval. The court found that substantial evidence — including the family member’s lay testimony, historical photographs, and maps showing surrounding parking uses — supported the ZBA’s conclusions that the property’s unique physical conditions (its irregular narrow shape, perpendicular orientation to adjacent lots, and steep slope) created an unnecessary hardship preventing conforming residential use.

On the subdivision question, the court was emphatic: “[T]here is no requirement that a property owner subdivide its property for the abutting landowners’ benefit, rather than obtain a use variance.” The fact that neighbors had informally used the property for years, the court explained, “is not a valid consideration for the ZBA” and “does not prove that the proposed use as a parking lot is not the minimum variance needed to provide the required relief.”

The court also addressed the ZBA’s use of the word “impractical” — the same word its witness had used at the hearing — rather than the Code’s statutory language of “no possibility” or “cost prohibitive” for the second variance criterion. The majority held this did not constitute reversible error where the record as a whole demonstrated that unique physical conditions prevented conforming development.

A Sharp Dissent

President Judge Renée Cohn Jubelirer dissented, arguing that the ZBA’s “impracticality” language was not harmless shorthand but a substantive failure to analyze the second statutory criterion. She wrote that the ZBA’s findings never actually addressed whether the property could reasonably be developed in strict conformity with the Code or whether such development would be cost-prohibitive — noting, for example, that the ZBA found only that construction would “require digging,” leaving open the possibility of reasonable, cost-effective development.

The dissent would have remanded for the ZBA to make adequate findings on the second criterion.

Takeaways

First, the deferential standard of review for zoning board decisions remains robust in Pennsylvania. A reviewing court may not substitute its judgment for the ZBA’s when a reasonable mind might accept the evidence as adequate to support the board’s conclusion.

Second, a zoning board’s use of the term “impractical” will not be treated as reversible error where the record demonstrates that unique physical conditions in fact prevent conforming use. Practitioners should, however, be mindful of the dissent’s critique and consider advising boards to use statutory language in their findings to insulate decisions from challenge.

Third, there is no legal obligation for a property owner to subdivide and sell land to neighbors as an alternative to obtaining a use variance — regardless of how long those neighbors may have informally used the property. This is a bright-line rule that should simplify variance proceedings going forward.

For more information, please contact Hannah Soisson at hsoisson@foxrothschild.com or 215.918.3548 or any member of Fox Rothschild’s Real Estate Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the author(s) and not necessarily this law firm or its clients. Prior results do not guarantee a similar outcome.