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JENKINTOWN TOWING SERVICE v. ZONING HEARING BOARD UPPER MORELAND TOWNSHIP AND UPPER MORELAND TOWNSHIP. UPPER MORELAND TOWNSHIP (06/17/82)

decided: June 17, 1982.

JENKINTOWN TOWING SERVICE, DAVID THOMAS AND ROBERT THOMAS
v.
ZONING HEARING BOARD OF UPPER MORELAND TOWNSHIP AND UPPER MORELAND TOWNSHIP. UPPER MORELAND TOWNSHIP, APPELLANT



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Jenkintown Towing Service, David Thomas and Robert Thomas v. Zoning Hearing Board of Upper Moreland Township, No. 79-23007.

COUNSEL

Raymond Jenkins, with him George B. Ditter, Jenkins, Tarquini & Jenkins, for appellant.

Mabel D. Sellers, with her Donald A. Semisch, Semisch and Grau, for appellee.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig. Judge Mencer did not participate in the decision in this case.

Author: Craig

[ 67 Pa. Commw. Page 184]

The Township of Upper Moreland, as intervenor, appeals from an order of the Court of Common Pleas of Montgomery County which reversed the Upper Moreland Zoning Hearing Board's decision denying a zoning variance to applicant Jenkintown Towing Service.

The applicant operates a business of vehicle towing and repair which qualifies as a nonconforming use in a C-1 commercial zone. The applicant, to accommodate its expanded business, requested the variance to permit the construction of an addition to its existing two-story building, which would enclose a site presently used for truck repair.

The proposed addition would incorporate retaining walls erected under a valid permit in 1978 and leave the structure five feet from the side boundary line, in contravention of ordinance provisions which establish the minimum side yard in a C-1 district as

[ 67 Pa. Commw. Page 185]

    thirty feet and limit the expansion of a nonconforming use to 25% of its building area, as calculated at the time the use became nonconforming.*fn1

The board, after a hearing, denied the variance. Upon appeal, the court of common pleas initially remanded the case to the board for the purpose of taking

[ 67 Pa. Commw. Page 186]

    additional testimony on the hardships alleged by the applicant. Thereafter, the common pleas court reversed the board's reiterated denial and held that the applicant was entitled to a variance. The township, on appeal here, argues that, where the proposed expansion of a nonconforming use is in conflict with zoning requirements, the applicant must show more than "economic" hardship to be entitled to a variance.

For many years, Pennsylvania courts have grappled with the conflicts between the nonconforming use's constitutionally protected right of natural expansion and the power of municipalities to impose restrictions on conforming and nonconforming uses alike.

Expansion in Conflict With Use Requirements Only -- The Inherent Right of A Nonconforming Use

The right to expand a nonconforming use to provide for the natural expansion and accomodation of increased trade "is a constitutional right protected by the due process clause." Silver v. Zoning Board of Adjustment, 435 Pa. 99, 102, 255 A.2d 506-07 (1969); Gilfillan's Permit, 291 Pa. 358, 140 A. 136 (1927). Accordingly, "a municipality cannot prohibit per se the natural expansion of a non-conforming use." Silver, 435 Pa. at 103, 255 A.2d at 508. Nevertheless, the Pennsylvania Supreme Court has stated that:

[The right of expansion] is not unlimited, however. The contemplated expansion must not be detrimental to the public health, welfare and safety. We have never questioned the right of a municipality to impose reasonable restrictions on the expansion of a non-conforming use.

Id. at 103, 255 A.2d at 507. See also Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277, 281-82, 263 A.2d 123, 126 (1970).

[ 67 Pa. Commw. Page 187]

Expansion over previously-used area without encountering dimensional restrictions

Our Supreme Court has held that where the expansion of a nonconforming use, as here, is over property acquired before the adoption of a zoning ordinance establishing that use as nonconforming, the owner may enclose the open-air portion of his operation without obtaining a variance, provided that the open-air portion has been "an integral part of the property used in the furtherance of the nonconforming purpose." In Re Pierce's Appeal, 384 Pa. 100, 106, 119 A.2d 506, 507 (1956). Apparently, the enlargement in that case did not run afoul of any dimensional limits in the ordinance.

Expansion over area not previously used

However, if the open-air portion has not been lawfully used in furtherance of the use before the prohibition, but is reasonably necessary to accommodate the requirements of the natural growth of the business, the remedy "would be by way of a variance." Id.*fn2

[ 67 Pa. Commw. Page 188]

Expansion Also in Conflict With Dimensional Requirements

Proposed expansions of nonconforming uses, in addition to conflicting with the use classification, also may encounter dimensional restrictions in zoning ordinances, such as: (1) those which impose dimensional limitations on all property within a particular zoning district classification, e.g., height limitations and side yard regulations, and (2) those, directed specifically at nonconforming uses, which limit the expansion of such uses by specified percentage limitations, e.g., as here, a limitation on the expansion of a nonconforming use building to 25% of its coverage at the time the zoning ordinance became effective. See Humphreys v. Stuart Realty Corp., 364 Pa. 616, 73 A.2d 407 (1950), in which the court gave effect to a 25% structural expansion limit.

In Mattero v. Township of Upper Chichester Zoning, 38 Pa. Commonwealth Ct. 322, 325, 395 A.2d 584, 586 (1978), we recognized that the right to expand a nonconforming use "is subject to applicable zoning building regulations and the interest of the public health, safety and welfare," and rejected the argument of an owner of a nonconforming use that he was entitled as of right ...


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