A. The Board shall hear requests for variances where it is alleged that the provisions of this chapter inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer(s). The Zoning Hearing Board may grant a variance, provided that all of the following findings are made, where relevant, in a given case:
(1) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property and that the unnecessary hardship is due to such conditions and not the circumstances or condition generally created by the provisions of this chapter in the neighborhood or district in which the property is located;
(2) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this chapter and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
(3) That such unnecessary hardship has not been created by the appellant;
(4) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, not substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(5) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
B. In granting any variance, the Zoning Hearing Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of the MPC and this chapter.
C. A variance, whether labeled dimensional or use, is appropriate only where the property, not the person, is subject to hardship. Types of variances are as follows:
(1) Dimensional variance. A dimensional variance is the most common type of variance and is appropriate only where the property, not the person, is subject to hardship. An applicant is not entitled to a dimensional variance where the application merely seeks to maximize the economic value of the property or enterprise.
(a) To justify the granting of a dimensional variance, the Zoning Hearing Board may consider:
[1] The economic detriment to the applicant if the variance is denied; and
[2] The financial hardship created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.
(b) In determining unnecessary hardship, the Zoning Hearing Board may consider whether:
[1] The physical features of the property are such that it cannot be used for a permitted purpose; or
[2] That the property can be conformed for a permitted use only at a prohibitive expense; or
[3] That the property has no value for any purpose permitted by this chapter.
(2) Use variance. A use variance provides relief from the restrictions as to the use of the property. The Zoning Hearing Board may grant a use variance in lieu of rezoning, a curative amendment or validity challenge. A use variance is appropriate only where the property, not the person, is subject to hardship. The applicant must demonstrate and prove to the Zoning Hearing Board that:
(a) The physical features of the property are such that it cannot be used for a permitted purpose; or
(b) That the property can be conformed for a permitted use only at a prohibitive expense; or
(c) That the property has no value for any purpose permitted by this chapter.
(3) Validity variance. A validity variance is intended to prevent the operation of municipal regulation on a parcel of property, such that the property is in effect confiscated, and to permit the proposed use of land where such use is reasonable.
(a) The applicant must also establish, to the Zoning Hearing Board's satisfaction, that:
[1] The effect of the regulations complained of are unique to the applicant's property and not merely a difficulty common to other lands in the neighborhood; and
[2] The regulation deprives the owner of the use of the property.
(b) The Zoning Hearing Board may also grant a validity variance when a property owner shows that the land has no value or only distressed value as a result of the regulation. This includes the applicant providing proof that either:
[1] The physical features of the property are such that it cannot be used for a permitted purpose;
[2] That the property can be conformed for a permitted use only at a prohibitive expense; or
[3] That the property has no value for any purpose permitted by this chapter.
(4) De minimus variance. A de minimus variance grants a minimal reduction of a dimensional zoning requirement. Because such a variance does not affect the public interest, it may be granted by the Zoning Hearing Board even though the traditional statutory grounds for a variance as set forth herein have not been established.
(a) The Zoning Hearing Board may grant a de minimus variance if the applicant proves:
[1] That only a minor deviation from the dimensional uses of this chapter is sought; and
[2] That rigid compliance with this chapter is not necessary to protect the public policy concerns inherent in this chapter.
(b) De minimus variances are granted by the Zoning Hearing Board according to the particular circumstances of each case.
(5) Variance by estoppel. A variance by estoppel is a claim in equity that arises when a property owner establishes that municipal inaction has amounted to active acquiescence in an illegal use. [Note: This claim in equity is distinct from a claim to a vested right (affirmative action by the municipality, e.g., issued permit).] The Zoning Hearing Board may grant a variance by estoppel if the property owner establishes all of the following:
(a) A long period of municipal failure to enforce the law, when the municipality knew or should have known of the violation, in conjunction with some form of active acquiescence in the illegal use;
(b) The landowner acted in good faith and relied innocently upon the validity of the use throughout the proceeding;
(c) The landowner made substantial expenditures in reliance upon his belief that his use was permitted; and
(d) The denial of the variance would impose an unnecessary hardship on the applicant.
D. A property owner shall have 12 months from the date of issuance and approval of a variance to secure applicable zoning and building permits. If a property owner fails to secure applicable zoning and building permits within 12 months from the date of the variance approval, the variance shall expire. The Zoning Officer may conclusively presume that the applicant/property owner has waived, withdrawn or abandoned approvals and permits and may consider all such approvals and permits to have become null and void.
E. The Zoning Officer shall issue written notification to the property owner that the variance has expired and is null and void and that no future zoning or building permits shall be issued without the property owner securing a new variance.
F. A property owner shall commence construction within 12 months of the issuance of the first zoning and/or building permit, as it pertains to the issuance of a variance. If a property owner has timely secured his/her zoning and building permits, but does not, however, commence construction on said permits within 12 months from the first date of issuance, then the variance and accompanying zoning and building permits shall expire. The Zoning Officer may conclusively presume that the applicant/property owner has waived, withdrawn or abandoned approvals and permits and may consider all such approvals and permits to have become null and void, at which point the Zoning Officer shall issue written notification to the property owner that the variance has expired and is null and void and that no future zoning or building permits shall be issued without the property owner securing a new variance.
G. In response to a property owner stating good cause, in writing, the Zoning Officer may extend, in writing, the time limit for completion of work to a maximum of 36 months from the date the first zoning or building permit was issued after the issuance of the variance.
