Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., 143 A.3d 538 (Pa. Commw. Ct. 2016)
A preexisting legal nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain. In addition, a certificate that a preexisting legal nonconforming use exists represents a procedural advantage, not an independent property right; therefore, the lack of a certificate results in a procedural disadvantage and not in the loss of a property right.
Landowner runs a go-cart racing enterprise on its’ property (Property). Go-cart racing existed on the Property prior to it being zoned in 1992. When the area was zoned, go-cart racing was not a permitted use, which made the activity a legal preexisting nonconforming use. Since 1972, Landowner held go-cart races on Saturdays and Sundays. Due to the increase in popularity of the activity, more patrons attended the venue and the hours of operation expanded. As a result, the Township’s Zoning Officer issued a written notice of zoning violation (Notice) to Landowner. Landowner applied for a certificate of nonconformance, requesting recognition of the nonconforming use of the Property for go-cart racing on Saturdays and Sundays. The Zoning Officer issued a certificate of non-conformance (Certificate) that identified the legal pre-existing nonconforming conditions as go-cart racing events held on Saturdays only, with all races ending by 11 pm. Landowner had no knowledge of its right to appeal and did not do so. However, the Certificate provided that Landowner could seek approval of any expansion of the nonconformity from the Township. Landowner sought such approval to allow go-cart racing on Sundays. Landowner testified it had been engaging in the use on Saturdays and Sundays prior to the adoption of the ordinance and specifically requested this recognition when it sought the certificate of nonconformance. The Zoning Hearing Board (ZHB) found that, among other things, Landowner failed to demonstrate the expansion would satisfy the requirements of the zoning district and denied relief. Landowner appealed to the trial court which affirmed the decision of the ZHB. Landowner then appealed to the Commonwealth Court.
In coming to its decision, the Commonwealth Court stated legal preexisting nonconforming uses “establish a vested property right which cannot be abrogated or destroyed unless it is found to be a nuisance, is abandoned, or is extinguished by eminent domain.” Landowner had been engaging in the use before the zoning ordinance was adopted and had not abandoned the use. Landowner’s receipt of a certificate of nonconforming use which does not recognize usage on a Sunday did not deprive Landowner of its right to continue the nonconforming use. Importantly, the court stated “a certificate represents a procedural advantage, not an independent property right. Conversely, the lack of a certificate results in a procedural disadvantage and not in the loss of a property right.” Further, the right to expand a nonconforming use to preserve economic viability or to reap the benefits of an increase in business is constitutionally protected. Nonconforming uses may be restricted, but not by way of a certificate of nonconformance because such certificates simply confirm the existence of a nonconforming use—they do not limit constitutionally protected property rights.
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