Arter v. Philadelphia Zoning Board of Adjustment,
916 A.2d 1222 (Pa. Cmwlth. 2007).
A crematory and funeral home are primary uses of land and not customary and incidental to a cemetery use under the Philadelphia Zoning Code. The natural expansion doctrine does not apply to a new and different use.
Landowner filed a zoning and use registration application with the Philadelphia Department of Licenses and Inspections (L&I) to obtain approval to develop a funeral home and crematory on the grounds of a cemetery located in an R-4 residential zoning district. L&I denied the permit. Landowner appealed to the Philadelphia Zoning Board of Adjustment (ZBA), which granted a variance for the proposed crematory. Objectors appealed to the trial court, which affirmed the variance, and then to the Commonwealth Court, which reversed.
Objectors argued that the ZBA’s finding that a proposed human crematory would not be adverse to the public health, safety or welfare was not supported by substantial evidence. The ZBA found that the crematory would not endanger the public health or safety because it would have to follow strict regulations and would not pose a danger to the community. The Commonwealth Court stated that this is not substantial evidence to prove that the crematory would not be adverse to the public health, safety or welfare; rather, it found that having a crematory would be adverse to the public welfare the character and nature of the historic residential neighborhood would change.
In addition, the Commonwealth Court agreed with Objectors that a human crematory and funeral home are primary uses (not accessory) to an existing cemetery.
Finally, the Commonwealth Court concluded that the proposed use constituted a new and different use, not an expansion of a current non-conforming use. Although the Court noted that an owner of a non-conforming use may introduce modern technology into a business without fear of losing that business, the right to expand does not include the right to add a new non-conforming use.
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