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Land Use: What Evidence is Required for a Use Variance?

The unreported case of Jenkins v. City of Philadelphia (1470 C.D 2014) should serve as a reminder to all land use attorneys that they must always adequately satisfy all of the applicable proofs when presenting a zoning case. In this instance, the Applicant needed use and dimensional variances in order to utilize a building for commercial and residential purposes. In this instance, the property only permitted industrial uses.

The Philadelphia Zoning Board of Adjustment granted the requested variances. However, after this request a neighbor filed an appeal. The Philadelphia Court of Common Pleas affirmed the approval, at which time the neighbor appealed to the Commonwealth Court.

After reviewing the case, the Commonwealth Court reversed the trial court and observed that the Applicant failed to satisfy its burdens. The Court also noted that the Applicant presented extremely limited testimony to the Zoning Board. Initially, there was no evidence that the property was incapable of being used for any permitted purpose, and the Applicant testified that the property had been vacant for a decade.

That being said, the Applicant never tried to explain why the property was vacant or what marketing efforts were employed to sell/lease the property or use it for any permitted purpose. There was also no presented evidence that showed it was cost prohibitive to utilize the property for any permitted use. Instead, there was simply a statement that the property had been vacant and the permitted uses were not viable, without any adequate data or supporting information.

For this reason, land use cases should always present the requisite proofs in a zoning case, even if it appears that the board is inclined to grant a zoning application. A zoning board’s decision is entitled to great weight, but testimony is still required to support a board’s approval. This is particularly true for a use variance.



About this Author

Eric S. Goldberg, Stark Law, Real Estate Matters Lawyer, Zoning Hearings Representation Attorney

Eric S. Goldberg is a Shareholder at Stark & Stark and member of its Real Estate, Telecommunications, Franchise and Distribution, and Business & Corporate Groups. He focuses on various types of transactions, with an emphasis in the areas of real estate and land use, franchise and corporate law. 

Mr. Goldberg represents developers in zoning and planning hearings in municipalities throughout the state of New Jersey and the eastern and central portions of Pennsylvania. He appears before municipal, county and state agencies in obtaining...