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FREID-EL CORPORATION (03/22/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 22, 1978.

IN RE: FREID-EL CORPORATION, A PENNSYLVANIA CORPORATION, FROM THE DECISION OF THE ZONING HEARING BOARD OF THE TOWNSHIP OF HEMPFIELD, WESTMORELAND COUNTY, PENNSYLVANIA. HEMPFIELD TOWNSHIP, APPELLANT

Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of In Re: Freid-El Corporation, a Pennsylvania corporation, from the decision of the Zoning Hearing Board of the Township of Hempfield, Westmoreland County, Pennsylvania, No. 1363 of 1976.

COUNSEL

Thomas J. Godlewski, for appellant.

Harvey E. Robins, with him Brennan, Robins & Daley, for appellee.

Judges Crumlish, Jr., and Blatt, sitting as a panel of two. Opinion by Judge Blatt.

Author: Blatt

[ 34 Pa. Commw. Page 342]

Hempfield Township (Township) appeals here from an order of the Court of Common Pleas of Westmoreland County which reversed a decision of the Township Zoning Hearing Board (Board) and directed that the Freid-el Corporation (Freid-el) be granted a variance to subdivide its property in the Township.

The real estate in question is a complex of townhouses consisting of eight buildings each containing eight townhouses. Each building is located on a single lot. The townhouses were constructed by Freid-el's predecessor in title before the Township adopted its zoning ordinance in 1969. The district in which the townhouses are located was zoned A-1 agricultural, and the townhouse complex therefore became a nonconforming use. In two transactions in 1973 and 1975, Freid-el purchased the complex and initially utilized it as a rental property. Freid-el subsequently decided to sell the individual townhouses and requested a variance from the Board to subdivide the larger lots on which each building was located into individual lots for each of the eight townhouses. The request was denied on the basis that Freid-el had not demonstrated an unnecessary hardship justifying the variance. On appeal, the lower court took additional evidence and reversed the Board, holding that the variance was incident to Freid-el's constitutional right

[ 34 Pa. Commw. Page 343]

    to a natural expansion of its nonconforming use of its property. This appeal followed.

Our scope of review in zoning cases where the court below heard additional evidence is limited to a determination of whether or not the lower court committed an error of law or abused its discretion. Borough of Baldwin v. Bench, 11 Pa. Commonwealth Ct. 410, 315 A.2d 911 (1974).

The lower court reasoned that Freid-el's plan to sell the individual townhouses rather than to continue to rent them was an expansion of its prior nonconforming use of the property, and, of course, the right to the natural expansion of a valid nonconforming use is a constitutional one protected by the due process clause. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 102, 255 A.2d 506, 507 (1969). The owner of a nonconforming use, however, may be required to meet the rigorous standards necessary for a variance before his right to expand the use may be exercised.*fn1

[ 34 Pa. Commw. Page 344]

Freid-el could sell the individual townhouses rather than continue to rent them. We believe that the proposed change could reasonably be considered a natural expansion of Freid-el's residential use of the property and that an unnecessary hardship would be imposed by refusing the variance. Moreover, the record amply supports the lower court's conclusion that the expansion would not be detrimental to the welfare of the community, for properties containing townhouses located in close proximity to Freid-el's were then being used in a similar manner with the approval of the Township.

The order of the lower court is affirmed.

Order

And Now, this 22nd day of March, 1978, the order of the Court of Common Pleas of Westmoreland County, dated February 1, 1977 and docketed at 1363 of 1976, is hereby affirmed.

Disposition

Affirmed.


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