A Special Exception Is Not a Variance (And Why That Matters)

Written by Cory Dillinger

One of the most common misconceptions in zoning and land use matters in Pennsylvania is that a special exception, conditional use, and variance are simply different names for the same thing. In reality, each serves a different purpose and follows a different approval process.

A special exception is perhaps the most misunderstood. Despite its name, a special exception is not a request to bypass the zoning ordinance. Rather, it is a use that the municipality has already determined may be appropriate within a zoning district, provided the applicant satisfies specific objective standards established in the ordinance.

A conditional use functions similarly. The primary distinction is that the governing body, such as a board of supervisors or borough council, makes the decision rather than the zoning hearing board. Like a special exception, a conditional use is already contemplated by the ordinance and is not a request for relief from zoning requirements.

A variance is different. A variance is a request for relief from a zoning regulation because unique physical characteristics of a property make compliance unreasonable or impractical. Variances require a showing of hardship and are generally subject to a much more demanding legal standard (interestingly enough, variances are seemingly the most common zoning application we see).

Consider a proposed apartment development. If multifamily housing is permitted as a special exception, the applicant is pursuing a use that the municipality has already determined may be suitable at that location. However, if the same project cannot meet a required setback because of unusual site conditions, the applicant may also need a variance. Although both applications may be heard during the same project review process, they involve very different legal standards.

Understanding the distinction matters. Different forms of zoning relief involve different decision-makers, burdens of proof, and approval criteria. Property owners, developers, municipalities, and residents are often better served when they understand exactly what type of approval is being requested and why.

Not all zoning relief is created equal. Before investing significant time and resources into a project, it is important to understand whether you need a special exception, conditional use approval, a variance, or perhaps no zoning relief at all. The answer can shape the entire approval process.

MPL Law Firm helps property owners, developers, and municipalities navigate Pennsylvania’s zoning and land use landscape with confidence. If you have questions about a development project or zoning application, our team is ready to help.