4154 Roosevelt St., LLC v. Zoning Hearing Bd. of Twp. of Whitehall, 93 A.3d 901 (Pa. Commw. Ct. 2014).
Apartment complex permitted as replacement to nonconforming manufacturing use where evidence demonstrates that the apartment complex will not be more detrimental to the neighborhood and public welfare than the existing nonconforming use.
Applicant owns four adjacent lots – two with improvements and two that are vacant – located in two different residential zoning districts. Applicant previously was denied multiple special exceptions and variances to convert the manufacturing facility on the property, which was a nonconforming use, to over fifty studio apartments including various amenities. Applicant filed a second application seeking the same relief except for forty-nine larger studio apartments, including a proposal for on- and off-site parking, but that also recognized the property as nonconforming with respect to certain distance and dimensional requirements of the Zoning Ordinance. To change from one nonconforming use to another, as Applicant intended, the special exception standards required a showing that Applicant establish the proposed use would be less detrimental to the neighborhood and public welfare than the existing nonconforming use.
The evidence indicated that the proposed use would yield less traffic than the existing use. In addition, testimony indicated that the proposed use would be less detrimental to the neighborhood and public welfare than the existing use. Still, the Zoning Hearing Board denied the application and Applicant appealed. On appeal, the Commonwealth Court found that the expert testimony constituted substantial evidence in support of a finding that the proposed nonconforming use was less detrimental to the neighborhood, surroundings, and public welfare than the existing use. As such, the proposed use would not substantially increase traffic congestion on the nearby streets, and the application satisfied the Zoning Ordinance’s requirements and should be approved.
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