Hafner v. Zoning Hearing Board of Allen Township, 974 A.2d 1204 (Pa. Commw. 2009).

In order to establish a valid, nonconforming use, the landowner has the burden of demonstrating legal use of the property for the activity in question prior to enactment of the zoning in question; to demonstrate right to variance by estoppel, landowner must produce evidence that without such variance, the property would be rendered valueless.
Case Details:

This case involves use of landowner’s property for tool repair and concrete cutting businesses.  Neighboring landowners challenged a decision by the zoning officer that both businesses were lawful, preexisting nonconforming uses.  After a hearing, the Zoning Hearing Board determined that the tool repair business was a lawful, nonconforming use, but the concrete cutting business was not.  The parties appealed.  While the appeal was pending, landowner submitted a request for a variance by estoppel to continue operating both businesses.  The Zoning Hearing Board denied this request, resulting in an appeal.  The three matters were consolidated before the Common Pleas Court.   The Court did not take any additional evidence and affirmed the Zoning Hearing Board’s decisions.  The neighboring property owners appealed the decision that the tool repair business was permitted as a nonconforming use, and the landowner appealed the decision that the concrete cutting business was not permitted as a nonconforming use or through variance by estoppel.

The record evidence showed that the tool repair business grew steadily from 1989 when the activity was limited to one person working each day.  The Zoning Hearing Board determined, based on this evidence, that the repair shop was permitted until the 2000 rezoning and since he operated the same prior to that time, it constituted a lawful, nonconforming use.  Because the concrete cutting business did not predate the zoning changes, it was not a valid nonconforming use.  These decisions were affirmed.  On appeal, landowner alleges this was contrary to the evidence.  The Commonwealth Court rejected this argument because there was no evidence whatsoever that the property was used as a concrete business prior to 1969, the date of the ordinance prohibiting such use.  Landowner could not supplement the record through a later, unrelated hearing.  Further, the Court reversed the decision that the repair business was a lawful, nonconforming use – because the only evidence was operation in 1989, when the ordinance required a site plan and permit which landowner never obtained – it was not a lawful use prior to the zoning change and, therefore, cannot be a valid, nonconforming use.

With respect to the request for variance by estoppel, the evidence was that the landowner’s father was told, by township representatives, that he could utilize the property for tool repair business.  There were also representations that a township representative told the landowner that no permit was necessary after the 1993 cease and desist order because the business was “grandfathered.”  The Board denied the variance by estoppel request based on a lack of evidence that landowner admitted he had not reviewed the ordinance preventing good faith reliance, the Township acted promptly after learning of the business and there was no evidence of unnecessary hardship.  The Commonwealth Court upheld this determination because the landowner failed to meet the good faith reliance element required under Pennsylvania law – one who commences a use without inquiry as to whether it is permitted does so at his own risk.  Further, grant of variance by estoppel requires evidence of unnecessary hardship – more than some economic loss, there must be evidence the property would be rendered valueless.  here, the evidence was that the property had value and would continue to be used as landowner’s residence thus the request for variance by estoppel was properly denied.

Date of Decision: 5/21/09

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