Matthew M. McKeon

By Matthew M. McKeon 

There you and your attorney are at the municipal building on a weekday evening, ready to tell the members of the Zoning Hearing Board why they should grant you the variances you want to build your home addition. You are feeling confident. When the Board’s solicitor asks if anyone in the audience wishes to make a statement or become a party to the hearing, you see at least two of your neighbors raise their hands. You had not approached them before tonight about your application. Now what? 

Many applicants for zoning relief do not realize that their neighbors can have a powerful impact on their zoning applications.  

It starts with notice requirements. Every borough and township in Pennsylvania requires that some level of mailed notice of a zoning application and hearing be mailed directly to the applicant’s neighbors. The scope of who gets this notice ranges from only immediately adjacent neighbors to all neighbors within a certain radius of the applicant’s property. Generally, the Board will determine that any neighbor who received notice under the municipal requirements has standing to become a party to the hearing on the zoning application. Once a party to the hearing, the neighbor will be able to offer their own testimony, cross-examine the applicant’s witnesses, and will have standing to appeal the decision of the Board. 

So, why would the Board care what your neighbor has to say? The answer is that Zoning Hearing Boards want to be sure that your proposed work on your property will not negatively impact neighboring properties. In the case of an applicant seeking a variance, this is an express requirement; the Pennsylvania Municipalities Planning Code requires that an applicant seeking a variance demonstrate that “the variance, if authorized, will not . . . substantially or permanently impair the appropriate use or development of adjacent property[.]” 53 P.S. § 10910.2 (a)(4). In determining if you have satisfied that requirement, the Board will give careful attention to what your neighbor has to say. 

Imagine for a moment that you had never approached the neighbors who raised their hands to explain your application. They tell the solicitor that they wish to become parties to the application, and when their time to testify comes they talk at length about their concerns about your project. They tell the Board that not only did you not approach them before they received notice, but that you never met with them when they did receive notice and wanted to get a better idea of the work you wished to perform. Although their concerns could have been easily addressed with a few days to revise the plans, now it is too late. The Board goes into executive session behind closed doors, and when the members come back the chairperson announces that the Board is denying your application. 

Back to reality. Your neighbors who raised their hands clarify that they just want to make statements in support of your application. Weeks ago, at the recommendation of your land use attorney, you approached these neighbors and told them that they would be receiving notice from your township about the hearing. You explained the work you wanted to within the property line setback facing their property, talked through any concerns that they had, and you agreed to plant some fast-growing plants along the property line to create a visual buffer. Their concerns addressed, they agreed to attend the hearing to support your application. The Board is relieved. Because of your neighbors’ support – and because your attorney prepared testimony and exhibits establishing the other criteria for relief – the Board grants you a variance. 

Even neighbors who support your application may not be able to attend the hearing. In such cases, the Board often will give equal consideration to a signed letter of support from your neighbor. The Board will give more weight to support from neighbors immediately adjacent to or at least very nearby your property. 

If you have questions about obtaining zoning relief or other land use or zoning issues, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. 

By Matthew M. McKeon

On more than a few occasions, a prospective client – usually a residential homeowner planning some kind of addition — will ask me some variation of this question: “I think I need zoning relief . . . what if I just build without letting the municipality know and without getting the permits or zoning relief?” My answer is always the same: don’t.

Simply building without getting necessary permitting or zoning relief (such as a variance, a special exception, or a conditional use) can be a tempting short-cut for property owners planning relatively modest improvements to their property. The prospect of spending the time, money, and effort going before at least one (and sometimes three) municipal bodies is understandably daunting and may lead you to wonder: why not just build?

To start, the fact that your municipal representatives voted to enact certain zoning requirements means you should not knowingly violate those requirements. However, there are also more practical reasons why you should not build without obtaining necessary permits or zoning relief:

1. When you sell your house, the standard seller’s disclosure statement requires you to disclose if there are any violations of zoning ordinances or other local law or regulations relating to your property. A truthful answer in the affirmative could jeopardize the sale, and a false answer risks you being sued by the buyers if the unauthorized work is discovered after the sale.
2. Many municipalities require homeowners who are selling their property to first allow the municipal codes officer to perform a use and occupancy inspection of the property. The inspection would more than likely reveal any work for which you would need zoning relief, leading to a notice of violation which you must resolve – all while you may already be under contract to sell the house.
3. Most codes officers are already on the lookout for any signs of home construction or alterations, even looking for the vehicles of contractors in front of homes or in driveways. Expect to get a call or knock on the door from the codes officer asking about the nature and extent of the work, and whether you have the necessary permitting and zoning relief.
4. Most reputable contractors will refuse to do work if the necessary permits have not been obtained.
5. If you are caught – and you are likely to get caught – it can be difficult to then obtain the necessary zoning relief you avoided getting in the first place. The municipal staff and the zoning hearing board may be annoyed that you attempted to dodge the correct procedure, so simply begging forgiveness may not work. Similarly, municipalities may not believe claims that you were simply unaware of the zoning requirements.

You may not like the process of obtaining necessary permits and zoning relief, but it is always preferable to the consequences of not obtaining it and then getting caught. Don’t take the risk: get the necessary permits and zoning relief.

If you have questions about your rights concerning your property lines or other land use or zoning issues, you may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.