ZONING VARIANCES, WAIVERS, MODIFICATIONS  & HARDSHIPS

 

HOLD THE LINE ON GRANTING VARIANCES   
We need to trust that our Zoning Hearing Board is standing up for our  rights. We expect they will uphold the  laws and that variances to our codes, regulations & laws will not granted the minute we are not looking .   The men & women who sit on the Zoning Hearing Board put in many hours and we need to be glad that someone is willing to do that - but we also need to ask them to start holding the line on granting variances giving rights to some residents  while others lose theirs.

The granting of variances  becomes a slippery slope. If you grant a sign variance for one business, how do you not allow  the next business owner the same privilege?   If you grant a side yard variance for one homeowner, how will you deny the next homeowner the same privilege? Unfortunately, some of us have come to realize that the variances already granted are going to change the nature of our Township.  We need to be paying attention



Here is some information on the very strict guidelines that govern Variances , Waivers, Modifications

   WHAT IS THE DIFFERENCE BETWEEN A WAIVER OR MODIFICATION AND A VARIANCE?

Subdivision and land development ordinances typically contain provisions granting the governing body the right to grant waivers or modifications of the provisions of the subdivision and land development ordinance. The governing body does not have the right to grant variances from provisions of the zoning ordinance. Only a Zoning Hearing Board can grant variances from the provisions of a zoning ordinance. Just as with variances, where a landowner seeks a waiver or modification of a subdivision and land development ordinance provision, typically the subdivision and land development ordinance contains standards and specifies the burden of proof the applicant must meet in order for the governing body to grant such relief.
This is from a PA law firm w/offices in Stroudsburg and Bethlehem
https://www.newmanwilliams.com/real-estate-law/zoning-land-use/

 

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 Section 512.1. Modifications.
 (a) The governing body or the planning agency, if authorized to approve applications within the subdivision and land development ordinance, may grant a modification of the requirements of one or more provisions if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of the ordinance is observed.

(b) All requests for a modification shall be in writing and shall accompany and be a part of the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision or provisions of the ordinance involved and the minimum modification necessary.

(c) If approval power is reserved by the governing body, the request for modification may be referred to the planning agency for advisory comments. (d) The governing body or the planning agency, as the case may be, shall keep a written record of all action on all requests for modifications.
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 HARDSHIPS NEEDED – FOR WAIVERS IN  ABINGTON SALDO CODE, TOO
Profit cannot be a  hardship  – Lack of profit is not a hardship – Greater profit cannot be the motive-
Can’t be self created  - must be in writing – must accompany the application
It shall be reviewed by the Planning Commission ( not just go to Commissioners and be approved)
The Planning Commission shall send a report to the Commissioners
https://ecode360.com/9009808?highlight=hardship&searchId=12103127089638450#9009808

Code/Ch 146: Subdivision and Land Development/Ch 146 Art VIII: Modification and Validity
§ 146-50Modification for hardship .
A. Granting of hardship ; proof.
(1) The Board of Commissioners may grant a modification of the requirements of one or more provisions of this chapter if the literal enforcement will exact undue hardship  because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of this chapter is observed.
(2) Proof of undue hardship  must be presented to the township by the subdivider/land developer. It shall not be considered sufficient proof of hardship  to show that greater profit would result if the variance were granted. Furthermore, the hardship complained of cannot be self-created and must be suffered directly by the property in question.

B. Procedure for modification.
(1) All requests for a modification shall be submitted to the Zoning Official in writing and shall accompany and be a part of the application for development. The request shall state in full the grounds and facts of unreasonableness or hardship on which the request is based, the provision(s) of this chapter involved and the minimum modification necessary to abate the hardship  .
(2) The Township Planning Commission shall review the applicant's request and submit a report to the Board of Commissioners.
(3) The Board of Commissioners shall review and approve or disapprove the request and keep a written record of all action on the matter.
(4) A written summary of any exception shall be appended to the record plan.

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 VARIANCE -  IF ZONING HEARING BOARD IS GRANTING IT
Pursuant to Section 910.2 of the Municipalities Planning Code, in order for a ZHB to grant a variance, the applicant must prove the following:   ( ALL the following criteria must be met)

1) There is unnecessary hardship created by the unique physical conditions of the property.
Physical conditions include  irregularity, narrowness, shallowness of lot size or shape or exceptional topographical or other physical conditions that are not created by the provisions of the local zoning ordinance.

2) Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance, and the authorization of a variance is needed to enable the reasonable use of the property.

3) Such unnecessary hardship has not been created by the applicant.

4) The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located,

5) The variance, if authorized, will not substantially or permanently impair the appropriate use or development of adjacent property
-------- will not be detrimental to the public welfare  

----- and will  represent the minimum variance that will afford relief , the least modification possible of the regulation at issue.

https://content.civicplus.com/api/assets/51b893ed-2b93-4277-a2fc-a8df468e93db   or https://www.legis.state.pa.us/WU01/LI/LI/US/HTM/1968/0/0247..HTM


( Note  The law goes on to further allow for public participation and comment  and also provides for  appeals to be made within 30 days – though caselaw may offer extensions when there have been  irregularities in the process.  The failure to properly notify might be one of those  . ( See :         Borough of Jenkintown v. Board of Commissioners of Abington Twp. Penecale Caselaw created over mistake at Foxcroft circa 2003   That Property was developed in 2022-2023 https://scholar.google.com/scholar_case?case=13756891065311157284&q=Borough+of+Jenkintown+v.+Board+of+Commissioners+of+Abington+Twp.&hl=en&as_sdt=6,39&as_vis=1

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SOME OF THE ABOVE IS REPEATED BELOW THIS LINE  _ nEED TIME TO EDIT

HARDSHIPS

Variances are not supposed to be granted without hardships. this is supposed to uphold the integrity of your Township zoning.  Hardships are required to be named in any application for zoning relief.  If hardships are granted with little or no regard to whether a true hardship exists, it undermines the fabric of your zoning, as one applicant can refer to another applicants approval to plead for the same treatment.

EXAMPLE OF "SPOT ZONING " The Baederwood Shopping Center had been in the throes of decline as the owners there sought in every way to develop beyond what their current rights allow. You can read the entire issue by clicking here.  In a nutshell, the Baederwood Shopping Center owners  have about 8 acres of beautifully green, wooded, sloped land  behind them. This land is zoned R1 - single family residential where each house would require approximately one acre. But the similar zoning all around the parcel has been given variances over the years to the extent that hundreds and hundreds of units were allowed. As of 5-09 the Baederwood owners have hired an attorney to claim that they deserve the same privilege and say that the law supports them. The "spot" zoning allowed by our Zoning Hearing Board has created a challenge to the validity of our ordinance. The owner suggests the law does not allow us to "re-zone" for one and then not for another. But is this happening all over the township.  The time for residents to be concerned is now.

 EXAMPLE OF SIGN VARIANCES  Here and there throughout the Township there are digital signs appearing. A  large sign with a digital banner presenting  messages to the travelers on York Rd  was  installed at Noble Plaza (2007-2008 ) and was promoting an anti-union message.  It was the message that caught everyone's eye. But the underlying issue here is: how did the large digital sign get there that required a variance to our sign laws.  Were we notified. Did anyone come? What will result if we allow this again & again?
           Residents of Abington took their time over the years to protest digital signs. They wanted their township to look nice and they took the time to see that codes, regulations and ordinances were passed to preserve that.  The concern over the the variances issued becomes  greater when we see individuals getting exceptions that are unnecessary, and do not seem to reflect any hardship ---- and greater still when the people receiving these variances sit on our Economic Development board, which should hold the preservation of our character and well- being at the top of its list.
         Without those residents having taken their own time to protest this sign, which happened because of the message, and to write about it in the paper, many of us would never have known even about the variances that were issued in this case.

        Variances do amount to "spot zoning". And the hardships under which they are granted should be reviewed carefully and held to the greatest possible standards for the preservation of the property rights of the owners of all of the nearby properties as well as for the preservation of our township into the future.

  HERE ARE THE GUIDELINES FOR VARIANCES 
Only the zoning hearing board has authority to hear and decide upon an application for variance from a requirement of the zoning ordinance. The zoning officer has no power to grant variances. The governing body has no power to grant variances. Section 910.2(a) of the MPC contains the criteria for the grant of a variance. A municipality has no authority to modify these criteria by different provision in its zoning ordinance. The zoning hearing board is required to apply these criteria to the application for variance that has been presented. REQUIREMENTS FOR A VARIANCE PAGINATOR 15 AT THIS LINK https://dced.pa.gov/download/Planning%20Series%2007:%20Special%20Exceptions,%20Conditional%20Uses%20and%20Variances/?wpdmdl=59696 The zoning hearing board hears requests for variances where it is alleged that the provisions of the zoning ordinance, if strictly applied, would cause unnecessary hardship. The zoning hearing board may, by rule, prescribe the form of application and may require preliminary application to the zoning officer. Although a zoning ordinance is to be liberally construed to allow for the broadest use of land, an applicant for a variance bears a heavy legal burden. Section 910.2 of the MPC sets forth the criteria that must be met for the grant of a variance. The zoning hearing board may grant a variance provided that it has made the following findings 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 conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located; The physical circumstances or conditions that necessitate a variance must be unique to the property for which application has been made. A physical circumstance or condition general to the zoning district as a whole or in a portion of the zoning district in which the property is located does not warrant the grant of a variance. A variance is not appropriate merely because the zoning ordinance is in conflict with the landowner’s desired use of the land. The circumstances or conditions that necessitate a variance must be physical in nature. For improved property, unnecessary hardship unique to the property exists if the property cannot be conformed to a permitted purpose without extensive demolition or reconstruction. Goldstein v. Zoning Hearing Bd. of Lower Merion, 19 A.3d 565 (Pa. Cmwlth. 2009). Except as noted in the discussions of types of variances below, financial conditions (economic hardship) may not be considered. 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 the zoning ordinance 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 applicant; 4. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to 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. In granting a variance, the zoning hearing board may not disregard the language of the zoning ordinance under the pretext of pursuing the spirit of the intended regulation. In granting any variance, the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purpose of the MPC and the zoning ordinance. It is important to note that the zoning hearing board may base its variance decision on only these five findings, and the municipality may not establish additional criteria. Furthermore, it is important to note that a variance is appropriate only where the property, not the person, is subject to hardship





   SEE ZONING documents  FOR MORE INFORMATION

Our codebook is in 2 parts 
Part 1   Township's Codebook    except for  zoning
Part 2 Zoning Portion of Township Codebook

or go to http://www.abingtonpa.gov/info/newcodebook.htm

  
    Please feel free to send your  information to us  and please be sure to  tell us about any information you believe to be incorrect - write  lel@abingtoncitizens.com

 

 

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Abington Township revamped the entire Township website at the end of 2015 and broke all the links to the information. In 2017, under Richard Manfredi, someone inexperienced was assigned to redo the entire website again. The public was not asked what problems they would like to see fixed. Their new plan was not well thought out, so everything was very hard to find and there were giant paragraphs you had to slog through in order to find the pertinent one or two lines that you needed. Or if you were lucky enough to even find the meetings and agenda page, there was (and still is) a whole page of nonsense on top, so you think you're on the wrong page. Zoom limks are burrid in a giant paragraph, so people can't find them to attend the meeting. They know about these  problems - but have just decided to ignore us.... for the whole of Richard Manfredi's time here (with Tom Hecker's consent).

 Now, in 2025, we are due to get a new Manager, and there are funds put aside to, once again, upgrade the Township website. We can only hope for a fresh chance at fixing some of these things, as our Township website is the best tool we have for communication and should be an easy, user friendly site for all.

We need volunteers willing to work together to help improve the Township site that everyone has to use,  to make it functional and accessible. 

 We will be repairing our broken links in this Abington Citizens site, too, and fixing some of our many, many typo's as much as is possible. (Yes, it's quite evident that, unlike the Township, WE don't have a paid staff of 275+ or a $93 million budget).

 So...please let us know if you find broken links or typos. Send us the URL and/or and the name of the page it is on, so we can correct it.
Thanks for the help.

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