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Property owners must apply for recognition of a nonconforming use.
Krupa v. Fayette County Zoning Hearing Board, (Pa. Commw. Ct. 2008).
Property owners who kept horses and chickens in contravention of their R-2 Residential Zoning District received an enforcement notice, which also indicated that they could be in compliance if they applied for a re-zoning. Property owners appealed to the Zoning Hearing Board (“ZHB”) contending that their use of the property was a pre-existing nonconforming use. The Solicitor for the County Office of Planning, Zoning and Community Development agreed that farming and agricultural purposes were used on the property at all times since 1958. The Solicitor then offered to withhold any future enforcement if the property owners applied for recognition of a nonconforming use.
Property owners refused to apply for recognition of a nonconforming use and appealed arguing that the enforcement notice was defective because it did not set forth a specific section of the Zoning Ordinance that they were violating and that they were entitled to a nonconforming use without having to file a rezoning application. The Commonwealth Court found that the information provided in the enforcement notice was sufficient and that the lack of a citation to a specific section thereof did not make the notice defective. The Court also stated that a nonconforming use must be legally existing, recognized and approved. The property owners could have applied for approval and recognition but refused. It is not the duty of the applicable municipality to recognize the existence of a nonconforming use. Rather, the Court stated that if property owners want such a remedy, they should file an application for approval and recognition of the nonconforming use.
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