Finegan v. Board of Supervisors of Earl Twp., 826 A.2d 76 (Pa. Cmwlth. 2003), 6/18/03:

Case Details:

Finegan is the owner of a restaurant/bar in Earl Township. Finegan’s Property, and the structure thereon, have been operating as a restaurant and bar since the mid-1950’s. In 1972, the township enacted its first zoning ordinance that designated Finegan’s property as Woodland-Agricultural-Conservation Zoning District. The use of Finegan’s property as a restaurant and bar represents a pre-existing nonconforming use. A nonconforming use is any use, structure, or combination thereof, which came into existence prior to an otherwise applicable zoning restriction, but which now, violates that restriction.

Pennsylvania law recognizes the doctrine of natural expansion of a nonconforming use, which states that a nonconforming use may be extended in scope as the business increases in magnitude, over ground previously occupied by the owner for that business at the time of the enactment of the applicable zoning ordinance. In the present case, Finegan, in 1990, obtained an expansion of a nonconforming use by special exception for outdoor seating at his restaurant and bar. The original restaurant/bar did not have outdoor seating. In 1999, Finegan again attempted to expand his outdoor seating from 14 tables to 44 tables. The ZHB denied Finegan’s Application for Approval of a Conditional Use and Finegan filed an appeal.

While recognizing the doctrine of natural expansion of nonconforming uses, the Commonwealth Court opined that such expansion remains subject to applicable zoning regulations and recognized that the ordinance capped the expansion of a non-conforming use at 25%. The Court held that the application of the 25% expansion provision required findings on the amount of land utilized as of the time of the enactment of the zoning ordinance that rendered the use nonconforming, including parking areas and accessory buildings, and remanded the matter to the trial court for such findings. The Court further directed that the area of a prior expansion permitted by special exception must be subtracted from the total 25% expansion area. In granting the earlier special exception, the zoning hearing board had concluded that there had been no prior use of that portion of the property, which was the subject of the expansion. The Court declined to hold that the expansion previously permitted, as a special exception was itself a nonconforming use.

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