Robertson v. Henry Clay Township Hearing Bd., 911 A.2d 207 (Pa. Cmwlth. Ct. 2006).
A dimensional variance is proper in rebuilding or replacement projects to prevent the extinguishment of a non-conforming use.
Landowner’s property consisted of a long and narrow .26-acre lot in an Agricultural Zoning District. Since the 1950s, Landowner’s family had kept a camper on the property and used it as a recreational retreat area. The camper constituted a non-conforming use of the property due to its non-compliance with the setback requirements of the Zoning Ordinance.
In 2001, Landowner acquired the property outright, took down the deteriorated camper, and then applied to the Township for a permit to construct a new structure where the camper previously existed. Although the Township denied the application due to the non-conforming setbacks of the proposed structure, Landowner proceeded without the permit, which prompted a notice from the Township to remove the structure. Landowner appealed the order, arguing, among other things, that the Zoning Ordinance was inapplicable to the structure because the structured constituted the continuation of a pre-existing nonconforming use. The Zoning Hearing Board and the Court of Common Pleas affirmed that Landowner had abandoned the pre-existing nonconforming use.
On appeal, the Commonwealth Court concluded that Landowner’s use of the property violated the setback requirements of the Zoning Ordinance, but that she could continue the non-conforming use unless the Township showed that she had intended to and actually did abandon the pre-existing non-conforming use. In this case, Landowner did not intend to abandon the use because she took down the old camper and promptly replaced it with a new structure.
In addition, the Commonwealth Court confirmed the general validity of requiring new or replacement structures to conform to ordinance requirements; however, it concluded that dimensional variances are appropriate where such provisions have the effect of extinguishing prior non-conforming uses.
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