Renaissance Real Estate Holdings, L.P. v. City of Phila. Zoning Bd. of Adjustment, 199 A.3d 977 (Pa. Commw. Ct. 2018).

A continuation of a nonconforming use may be prohibited by a zoning ordinance if the property was voluntarily destroyed.
Case Details:

Applicant owned a three-family dwelling located in an area zoned for single-family detached homes.  The dwelling was a lawful nonconforming use in that zoning district. Applicant applied to the Department of Licenses and Inspections (Department) for a permit to demolish the existing three-family dwelling and for “the erection of a new three-unit multi-family dwelling with porch, rear deck, and accessory roof deck(s) with pilot house(s) to enclose stair(s) and landing(s)…” The application was denied because three-family dwellings were not permitted in the zoning district. The Applicant appealed the decision to the Zoning Board of Adjustment (ZBA). The ZBA affirmed the Department’s decision because the proposed use was impermissible in the zoning district and the Zoning Code did not permit a continuation of a nonconforming use after voluntary destruction. The Applicant appealed to the trial court which affirmed the ZBA’s decision.

On appeal to the Commonwealth Court, the Applicant argued that it was not voluntarily destroying the building and, therefore, the nonconforming use was still valid. The Court noted that a municipality has some authority to deny restoration of a destroyed nonconforming use. The Zoning Code states that “any nonconforming structure, use, lot, parking area, site improvement or accessory sign destroyed through means other than [by fire or act of God or a third party over which the owner has no control] shall be reconstructed in compliance with the Zoning Code.” The Applicant stated in its application that there would be a “complete demolition of all existing structures and [ ] the erection of a new three-unit multi-family dwelling”. Therefore, the Applicant itself referred to the proposed work as a demolition. Relying on precedent with similar facts, the Court determined that, under the Zoning Code, if a nonconforming use is voluntarily demolished, a property owner may be prohibited from reestablishing such use. Consequently, the Court concluded that the Applicant was prohibited from continuing the nonconforming use because the demolition would be voluntary.

Date of Decision: 12/6/18

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