In Coyle v. City of Lebanon Zoning Hearing Bd., --- A.3d ---, 2016 WL 1128292 (Pa. Commw. Mar. 23, 2016), the Pennsylvania Commonwealth Court rejected the argument that the standard for a temporary variance differs from that of a permanent variance and also reaffirmed that the de minimis doctrine does not apply to use variances.
In Coyle, the applicant sought a variance to rent out two bedrooms of her home as part-time offices for two attorneys to be used two days a week. The property was already being used by the applicant to operate a part-time law practice as a lawful home occupation. In applying for the temporary variance, the applicant claimed that the unique physical circumstances and unnecessary hardship requirements for a variance under the Pennsylvania Municipalities Planning Code (MPC), 53 P.S. § 10910.2, "did not apply." The applicant further claimed that because the two other attorneys would only use the property two days a week, granting the variance would not alter the neighborhood's essential character and the requested variance was the minimum to afford relief. At the zoning hearing, a neighboring objector appeared through counsel and objected to the variance application.
The zoning hearing board unanimously granted the variance, subject to three conditions: (1) limited to two part-time attorneys each renting one room; (2) each attorney is limited to two days of practice a week; and (3) the conditional variance would be reviewed by the board every four years to determine continuance of the variance. The objector appealed the board's decision to the trial court. The trial court denied the objector's land use appeal and upheld the board's decision granting the applicant a temporary variance. The objector appealed to the Commonwealth Court, which reversed the trial court order.
The Commonwealth Court held that the board erred by granting the applicant a temporary variance without proof by substantial evidence that all of the requirements for a variance under Section 910.2(a) of the MPC were met. The court rejected any contention that a temporary use variance should be granted under a more relaxed hardship standard because a temporary variance is less harmful to the overall zoning scheme than a permanent variance. The court found that while a time limited variance is a viable form of relief, it does not excuse an applicant from establishing all of the traditional variance criteria. The court made clear that a zoning board must make specific findings of fact and conclusions of law regarding each of the key variance requirements.
The court further noted that where there is a hardship and it is temporary, a temporary variance is preferable to a permanent one. The court cited with approval Robert S. Ryan, Pennsylvania Zoning Law & Practice, § 6.2.15 (1997), which provides that "temporary variances can be a suitable remedy if used to reduce hardships of a temporary nature or as an aid in transitional situations. But regardless of whether a party is seeking a temporary or permanent variance, all of the criteria set forth in Section 910.2(a) of the MPC must be met. The court held that in this case the board abused its discretion by granting a temporary variance because it failed to make findings based upon substantial evidence supporting all of the variance criteria.
In addition, the court held that the trial court erred by declaring the variance granted by the board de minimis. The de minimis doctrine is a narrow exception to the heavy burden of proof generally placed on a party seeking a variance. The court noted that the de minimis doctrine has exclusively been applied in cases where only minor deviations from dimensional zoning are sought. The court found no precedent for approving a use variance based on the de minmis approach and was unwilling to create any such precedent in this case.
In sum, the Coyle decision demonstrates the difficulty of establishing entitlement to a variance and the courts' unwillingness to create judicially recognized exceptions.
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