economic hardship does not constitute uniqueness necessary to justify issuance of a variance
How later courts described this case
- economic hardship does not constitute uniqueness necessary to justify issuance of a variance
Written by the judges who cited it.
The opinion
Concurring Opinion by
Judge Craig:
This opinion signifies joinder in all of the sound and well-stated textual body of the majority opinion, and joinder in the result as well.
However, the statements made in footnote 12 cannot be included in that joinder. In that footnote, the majority opinion characterizes some additional arguments of the Township as “issues” and hence declares them waived because the Township did not articulate them below. But the real issues of this case, properly described in the majority opinion, are as follows:
1. Are there unique circumstances?
2. Is there unnecessary hardship?
3. If so, is that hardship a self-inflicted one?
4. Would the variance be detrimental to the community?
*435 All of the points listed in footnote 12 are merely arguments relating to one or more of those issues.
The “solely economic” claim and the “rezoning” claim are just additional aspects of the uniqueness and hardship issues; those claims represent contentions put forth in many zoning cases involving variances.
Moreover, because the “self-inflicted” issue has been in this case all the way, no party is barred from raising additional argument “theories” on appeal. The appellate process need not be a carbon copy of the legal debate below. Any party may pursue a fresh argument and submit additional citations so long as the other side is not ambushed by a new issue.
The decisions cited in footnote 12 do not support the proposition for which they are submitted. In Center City Residents Assoc. v. Zoning Board of Adjustment, 48 Pa. Commonwealth Ct. 416 , 410 A.2d 373 (1980), this court barred objectors from raising, upon appeal, an issue with respect to notice because that was genuinely a new procedural question entirely distinct from the substantive variance questions which had been pursued below. In Rhoads v. Lancaster Parking Authority, 103 Pa. Commonwealth Ct. 303 , 520 A.2d 122 (1987), petition for allowance of appeal denied, 515 Pa. 611 , 529 A.2d 1084 (1987), this court properly declined to entertain an issue involving common law governmental immunity when the parties had pursued only questions of statutory immunity up to that point.
The Township claims and contentions, as listed in footnote 12, are not sufficient to support any result different from that reached by the majority opinion. Discarding them as waived issues is not appropriate and could mislead court and counsel in resolving variance cases in the future.