Marketing Efforts / Existing Nonconforming Use Insufficient to Establish Unnecessary Hardship Justifying Use Variance

On June 26, 2015, Commonwealth Court again considered what circumstances constitute an “unnecessary hardship” justifying a use variance.

Mary E. Schadt (“Schadt”) owned a property containing a 164-year old three-story single family dwelling on Main Street in the City of Bethlehem.  The property was dual zoned High Density Residential and Historic.    The property  contained 2 legally nonconforming book shops that predated the zoning ordinance, and rental apartments.

Schadt listed the property for sale for 4 months, during which time there were 19 showings.  There was  interest in the property, although potential buyers were having difficulty obtaining financing.

The property was ultimately placed under agreement by a company intending to use the existing dwelling for a financial services office.  The financial services office use was not permitted on the property.  Schadt applied for a use variance and the City of Bethlehem Zoning Hearing Board denied the variance request.

On appeal, Schadt contended that the presence of nonconforming commercial uses (the bookstores) on the property was a unique physical condition justifying a variance, since the commercial uses rendered sale of the property as a residence difficult.  Schadt cited her marketing efforts as evidence of the hardship.

Commonwealth Court disagreed, holding that Schadt did not demonstrate an unnecessary hardship to justify a variance, as required by the Pennsylvania Municipalities Planning Code.  Specifically, Commonwealth Court found:

• Schadt’s family, and its predecessors, had resided in the home for centuries
• An inability to sell a property in less than 4 months did not equate to unnecessary hardship (at the most, it was “mere economic hardship”)
• There was a bona fide interest in the property “as is”
• The existence of the bookstores did not constitute a “unique physical condition”

This case is particularly interesting because of the court’s analysis of the marketing efforts to sell the property.  Here, 4 months of marketing and 19 showings was insufficient to demonstrate an unnecessary hardship, particularly where there was a general interest in the property as is.

Click here to read: Schadt v. City of Bethlehem Zoning Hearing Board, 1032 C.D. 2014 (Pa. Cmmw. Ct. June 26, 2015).

Edited by:

Michael E. Peters, Esq.