March 16, 2020
For those dealing with zoning variances in Philadelphia, it is important to remember that in December 2013, City Council revised the Zoning Code to make expressly clear that parties seeking a use variance have to prove that the variance is the minimum variance that will afford relief. A year earlier, in SOSNA v. ZBA, the Commonwealth Court had questioned applying the minimum variance standard to use variances. A copy of that opinion can be found here.
Revised Zoning Code § 14-303(8)(e)(.1)(.b) appears to be in direct response to that decision, at least in Philadelphia. The 2013 revised language states, “The variance, whether use or dimensional, if authorized will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue.” As section 14-303(8) provides that “the Zoning Board shall grant a variance only if it determines that the applicant has demonstrated that the criteria of this § 14-303(8)(e) (Criteria for Approval) have been met,”, it would not seem possible that a court could choose to omit the criteria in section 303(8)(e)(.1)(.b) while addressing use variances, since that section expressly states it must be applied to use variances. The specific issue is still to be decided by the courts.
Please note that the foregoing does not constitute legal advice and should not be relied on as such in taking any legal action. The specific issue of whether the 2013 Code Revision overwrites the 2012 Commonwealth Court holding is still to be decided by the courts.