CAN A USE VARIANCE EVER BE “DE MINIMIS”?

The Commonwealth Court in a recent decision, held that, yes, a use variance can be de
minimis. Soland et al. v. Zoning Hearing Board of East Bradford Township et al., 2024 WL
675968 (Pa. Cmwlth. 2/20/2024).

In this case, the Marshalls owned about ten acres that contained a historic residence and
a tenant house. The residence was classified as a Class I historic resource, but the tenant house
was not. The Marshalls intended to reside in the residence and use the tenant house as a bed and
breakfast. However, the zoning ordinance only allowed a bed and breakfast in an owner-
occupied Class I historic building. The Marshalls applied for and received a use variance from
the zoning hearing board on the grounds that locating the guest rooms in the tenant house was
reasonable and keeping with the intent and spirit of the zoning ordinance for adaptive reuse of
the historic structures. The zoning hearing board did not consider the traditional hardship
requirements for a use variance implicitly finding that the request was de minimis. The trial court
reversed the zoning hearing board. The trial court applied the traditional requirements for a use
variance, finding that the proposed use of the tenant house as a bed and breakfast was a self-
created hardship, and that the de minimis doctrine only applied to dimensional variances.

The Commonwealth Court reversed the trial court finding that a use variance can be de
minimis. While the de minimis doctrine had never been applied to a use variance before, that did
not mean that it could not be applied if the circumstances justified it. The Commonwealth Court
felt that the facts in this case justified the application of the de minimis doctrine. Although the tenant
house was not classified as a Class I historic resource, the entire ten-acre property was listed as a
Class I historic property, and in addition to the residence, there was at least one other structure on
the property classified as a Class I historic structure. The Commonwealth Court found that the
variance requested was more technical than substantial and that the grant of the variance posed
no adverse effect on the public interest. The Commonwealth Court did note that the de minimis
doctrine, as applied to a use variance, should be rare and limited to extraordinary situations. Since
a de minimis variance has no set criteria and depends on the circumstances of each case, it
remains to be seen whether this decision will open the proverbial floodgates for requests for a de
minimis use variance.