Citation:

Dunbar v. Zoning Hearing Bd., 144 A.3d 219 (Pa. Commw. Ct. 2016)

Summary:
Once an applicant proves the proposed use satisfies the zoning ordinance’s objective requirements for special exceptions, the burden shifts to objectors to prove the specific use will have greater detrimental effects than those normally expected from the particular use, and that these impacts will pose a substantial threat to the health and safety of the community. Objectors must present more than unsubstantiated concerns or concerns that are merely vague generalities. In addition, doctrine of natural expansion permits a nonconforming use to be expanded in scope as the business increases in magnitude over the ground occupied by the business owner at the time the zoning ordinance was enacted.
Case Details:

Applicant owns property in a zoning district in the City which prohibits delis and restaurants. However, Applicant operated a preexisting legal nonconforming deli on his property. Applicant wished to change his use to a restaurant. The City’s Zoning Ordinance (Ordinance) permitted the change from one nonconforming use to another by special exception. Applicant also wished to enlarge the building by 50% to accommodate the restaurant. Accordingly, Applicant requested a special exception to change from one nonconforming use to another and a variance to expand the building. The City’s Zoning Hearing Board (ZHB) determined Applicant met the objective criteria of the Ordinance with respect to the special exception and approved the conversion. As the restaurant use was now permitted as a preexisting legal nonconforming use, Applicant was afforded additional rights, including the right to expand for the survival of the business. The ZHB determined the deli had been operated at a financial loss for many years and, therefore, Applicant had to be permitted to convert uses and expand the nonconforming use for the survival of the business. Thus, the ZHB approved the variance request. Objectors appealed to the trial court and argued Applicant failed to meet the conditions in the Ordinance with respect to changing from one nonconforming use to another. Further, Objectors argued the change was not necessary, would alter the character of the neighborhood, and was contrary to the public interest. The trial court denied relief and Objectors appealed to the Commonwealth Court.

The Commonwealth Court affirmed the trial court’s decision. The Court agreed with the ZHB that the change in use was consistent with the intent of the Ordinance and consistent with the most appropriate use of land because the two uses were similar. Further, Applicant had a constitutional right to continue and expand his nonconforming use to keep it viable. The Court agreed the proposed plan complied with the objective criteria for special exceptions in the Ordinance, except for the expansion which was being dealt with by the variance request. Consequently, the burden shifted to Objector to “demonstrate that the use will be detrimental to the public health, safety, and general welfare.” Objector failed to “demonstrate more than unsubstantiated concerns or vague generalities” and Objectors’ speculative concerns as to possible harms (e.g., that Applicant would not actually upgrade the building) were insufficient. Accordingly, the special exception was rightfully granted.

With respect to the variance to expand by 50%, the doctrine of natural expansion permits a nonconforming use to be “expanded in scope as the business increases in magnitude over the ground occupied by the business owner at the time the zoning ordinance was enacted.” In addition, such expansion is warranted when “necessary for the property owner’s business to remain financially viable,” so long as the expansion is “the minimum necessary to support the business” and will not be detrimental to the public welfare. The Court determined the expansion was necessary for the viability of the business. Applicant “demonstrated the difficulties the current establishment present[ed] to the operation of the deli and the inadequacies of the building space, having only enough room for one refrigerated meat case, one refrigerated soda case, and one preparation area.” Accordingly, Applicant’s testimony that “he is unable to compete with other local businesses that have unlimited hours and menu items” carried significant weight. Finally, Objectors’ argument that the proposed restaurant is not a continuation of the deli, but a new use, was rejected by the Court. Precedent permitted a change from a nonconforming private social club to a nonconforming public restaurant and bar, and the change from a deli to a restaurant was of the same vein. Accordingly, the variance was proper.

Date of Decision: 7/18/16

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