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A nonconforming use can be expanded as of right when the nonconformity is not increased. However, a new structure entirely different from the nonconforming use cannot be constructed without obtaining a variance.
Narberth JKST Tennis Club, Inc. v. Narberth Borough Zoning Hearing Board, (Pa. Commw. Ct. 2007).
Tennis Club has four outdoor tennis courts, which are nonconforming uses. The Tennis Club filed an application for a permit to build a structure enclosing two of the tennis courts stating that no zoning relief would be required to enclose the tennis courts. The Zoning Officer denied the application.
Tennis Club appealed to the Board again arguing that no variance was needed because the current tennis courts are “structures” under the Zoning Code and that the proposed structure is merely expanding the current nonconforming use and will not increase any of the nonconformities. However, the Board found that the proposed structure was not just an extension of the existing use, but was a new structure entirely. The trial court agreed with the Board, and found that the tennis courts could not be enclosed as of right and Tennis Club was required to apply for a variance.
On appeal to the Commonwealth Court, the Tennis Club argued that no variance was required because the tennis court was already a nonconforming structure and enclosure of the court would not increase any nonconformities. The Commonwealth Court agreed that the tennis courts were structures; however, the court found that the proposed enclosure will be a new structure completely. Therefore, the Tennis Club was not permitted to construct the enclosure as of right.
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