In McLogie Properties v. Kidder Twp ZHB (Carbon County) ___ A.3d ____, 2023 WL 4276962 (Pa.Cmwlth. June 30, 2023), the Pa. Commonwealth Court ruled that the property owner was entitled to a variance by estoppel to leave a house as constructed, even though it violated the zoning ordinance.  The Commonwealth Court basically determined that the Building Code Official should have coordinated the permitting requirements.

The case had some strange facts that occurred during construction of the building in terms of the plans not being in accordance with site conditions, but it is a bit of a concern that the Court imputed the knowledge of the BCO to the Township and seemed to place more responsibility on the BCO than what you usually may expect.

The Commonwealth Court found that it was the Township, through its BCO, that “had a legal duty to ascertain whether a new zoning permit would be required for the particular plan change.” The Commonwealth Court also found that the Township’s zoning officer had the obligation to inspect the construction before the occupancy permit was issued. The language was that the homeowner “was entitled to assume the Township had performed its statutory and regulatory duties to assure that the plan change complied with applicable zoning.” 

There was a dissenting opinion on a waiver argument.