You’re finally ready to put in that swimming pool, build that addition, or subdivide a property. However, when you consult your engineer or your municipality’s zoning officer, you are told that you need to first apply for a special exception, conditional use, or variance. You wisely plan to hire an attorney specializing in land use and zoning to handle the application, but you understandably have some questions about the overall process of obtaining zoning relief. Below are a few of the most frequently asked questions received on the subject from property owners.
Q: What is the difference between a special exception, conditional use, and variance?
A: Special Exception:
The term “special exception” is something of a misnomer because it is not an exception to a zoning ordinance’s requirements. Instead, a use “by special exception” is a use which is permitted subject to the applicant establishing that the use will comply with certain objective criteria set out in the zoning ordinance for that particular use. A special exception application is decided by the municipality’s zoning hearing board after one or more hearings.
Conditional Use: A conditional use is essentially the same type of relief as a special exception, in that the use is permitted subject to certain criteria and conditions. The only distinguishing feature of a conditional use application is that it is decided by the municipality’s governing body, not the zoning hearing board.
Variance:
A variance is a deviation from the use or dimensional requirements of the zoning ordinance and, importantly, there is no right to a variance. For example, you would seek a use variance if you seek to operate a commercial use in a zoning district in which that use is not permitted by the zoning ordinance. A dimensional variance is required when the physical dimensions of a lot or structure do not satisfy the bulk/area requirements of the zoning ordinance. Generally, you must show that: (1) there are unique physical circumstances or conditions on the property, which (2) create unnecessary hardship in that they unreasonable inhibit the usefulness of the property, (3) the hardship is not self-inflicted, (4) the grant of the variance will not adversely impact public health, safety, and welfare, and (5) the variance sought is the minimum variance that will afford you relief. The evidentiary burden for a dimensional variance is lighter than that of a use variance, although you are still generally required to satisfy the five-part test.
Q: What is the process for obtaining these types of zoning relief?
A: Once it is apparent that you require zoning relief, the first step is to prepare an application to the appropriate municipal body which you submit with the application fee. It is also wise to have an attorney prepare a narrative statement in support of the application that describes the project and why the municipal body should grant the requested relief. Most municipalities require that you also submit a plan prepared by an engineer or surveyor showing the dimensions of the property and any proposed improvements. Depending on the application, it may also be advisable to have the attorney submit aerial photographs, letters of support, and other items which support or explain the project. The hearing itself must occur within 60 days from submission of the application unless you grant an extension of that time. After submitting the application, the municipality will advertise the hearing date in a local newspaper, and either you or the zoning officer (depending on the local zoning ordinance) will both post notice of the hearing on your property and notify neighboring property owners within a specified distance of your property.
Q: Do I need an attorney?
A: While not legally required, hiring an attorney to handle your application for zoning relief is strongly recommended. Although a hearing before a municipal body may seem more informal than a proceeding in court, the stakes are actually quite high. The municipal body is looking for compliance with very specific legal requirements and will be advised by its own attorney, called a solicitor, who will attend the hearing. The municipal hearing is also your first and best chance to obtain the relief you seek. Should you appeal a denial of your application to the Court of Common Pleas, the judge is not required to take additional evidence, and must give substantial weight to the municipal body’s interpretation of the local zoning ordinance. Given the stakes of the municipal hearing, it is wise to hire an attorney who specializes in this field to prepare your application and then represent you at the hearing.
Q: What are my chances of success?
A: It is difficult to approximate the chances of success for general categories of zoning relief, because the outcome usually depends on the degree of the relief sought and the specific property, use, and/or improvements at issue. In very general terms, a use variance is more difficult to obtain than a special exception or conditional use. A dimensional variance can be less onerous to obtain than a use variance, but here too the degree of variance sought is still very important. Because special exceptions and conditional uses are for uses which are already permitted subject to approval by the municipality and/or certain conditions, they are less difficult to obtain than a variance, but conditions imposed on the grant of relief may be the subject of intense negotiations.
Q: Will my neighbors get to weigh in on my application?
A: Yes – and you never know who may oppose your application until the hearings are concluded. Your attorney should anticipate and be prepared to address the probable questions or concerns objecting parties might have.
If you plan on submitting an application for zoning relief, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any p
