William Benner successfully represented a group of residents in Bedminster Township of Bucks County who had opposed the introduction of a commercial enterprise into their residentially-zoned community.
As sometimes happens in zoning cases, the zoning hearing board was sympathetic to the applicant granting a use variance relying on the de minimis variance doctrine as its legal foundation.
The applicant successfully argued to the zoning hearing board that his planned commercial enterprise of selling autos over the internet had little or no tangible impact on the neighborhood. The applicant could not qualify for a no-impact home based business because his business plan included storing up to five cars on the property. Feeling aggrieved, several neighbors appealed the decision to the Bucks County Court contending that the zoning hearing board improperly expanded the de minimis variance doctrine.
The issue on appeal was whether a zoning hearing board could grant a use variance relying on the de minimis variance doctrine. The de minimis variance doctrine is itself a very limited exception to the law of variances that typically requires proof that the property cannot be reasonably used as zoned. Most reported appellate decisions applying the doctrine arose in the context of dimensional variance requests. In the case at issues, Landis v Bedminster Township Zoning Hearing Board 2011-10254, the Bucks County Court had to confront the question of whether to apply the de minimis variance doctrine to a use variance.
President Judge Susan Scott accepted the argument developed by real estate attorney William Benner who argued that the zoning hearing board committed error at law when it expanded the doctrine to apply to a use variance . Judge Scott, thus reversed the granting of the variance concluding that the applicant failed to meet its burden of proving that his property could not reasonably be used as zoned.
Variance applications are not easy. One must consider carefully whether the intended use variance has local opposition; for if it does, the chances of prevailing either before the zoning hearing board or before a court on appeal are not good.
For additional insights, contact William Benner at firstname.lastname@example.org