A recent decision from the Pennsylvania Commonwealth Court suggests that municipalities should be mindful of the consequences of failing to strictly enforce their Zoning Ordinances.
In McLogie Properties v. Kidder Township Zoning Hearing Board, the Court applied the doctrine of equitable estoppel to prevent the Zoning Hearing Board from enforcing the Zoning Ordinance against the landowner in connection with construction of a single-family residence and thus, found that the landowner was entitled to a variance by estoppel.
Variance by estoppel may awarded if:
- a municipality fails to enforce its Zoning Ordinance for a long period of time, when the municipality was aware or should have been aware of the zoning violation but acquiesced in the unlawful use;
- the landowner reasonably and in good faith relied on the validity of the land use;
- the landowner incurred substantial expenditures in reliance on a belief that the land use was permitted; and
- the landowner suffered unnecessary hardship from the denial of a variance.
Briefly stated, the Court found that a landowner was entitled to variance relief even though the building exceeded the maximum height and story requirements under the Township Zoning Ordinance. After receiving approval and obtaining a building permit from the Township to construct a single-family residence, the landowner discovered that the foundation was several feet lower than what was originally portrayed in the plans once construction began. A revised plan was submitted to the Township’s building and code inspection officer. The officer approved the revised plan even though the building would exceed the height limit and maximum number of stores under the Zoning Ordinance. The Township Zoning Officer was not informed of the revised plan’s approval. One year later, the Zoning Officer discovered that the building was in violation of the Zoning Ordinance and issued an enforcement notice, alleging that the landowner failed to obtain a zoning permit to exceed the requirements. The landowner appealed this notice and concurrently requested variance relief to keep the building as constructed.
The Court found that the landowner was entitled to variance relief by estoppel. The landowner was entitled to assume that the Township had performed its duties to assure that the revised plan complied with the Zoning Ordinance’s requirements. In failing to revoke the building permit and in failing to enforce the Zoning Ordinance’s building height and story requirements, the Township acquiesced in the unlawful height of the building. The Township also conducted multiple inspections as construction progressed and did not make any attempt to halt construction, concluding with the Township issuing an occupancy permit once construction was complete. Bringing the building into compliance with the Zoning Ordinance would require the landowner to expend about $50,000. This constitutes a substantial expenditure on the part of the landowner that could have been avoided if the Township had followed its own ordinance provisions.
The Court found that the landowner’s reasonable reliance on the Township’s acquiescence in the unlawful building height prevents the Township from enforcing the Zoning Ordinance’s building height and story requirements against the landowner. The doctrine of equitable estoppel applies when an entity makes an informal promise implied by its representations that induce reasonable reliance by another to his detriment. As discussed above, the Court found that the landowner relied to its detriment on the Township’s acquiescence given that, if the Township could enforce the Zoning ordinance against the landowner now, the property would be unusable or significant financial resources would need to be devoted to bringing the building into compliance.
The Commonwealth Court’s decision in McLogie Properties v. Kidder Township Zoning Hearing Board serves as a reminder to municipalities as to the consequences of failing to strictly enforce their zoning ordinances.
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