Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Appeal of Horsham Township from the Decision of the Zoning Hearing Board of Horsham Township -- In Re: Patch Up, Inc., No. 85-05523.
Linda Carol Post, with her, Thomas M. Del Ricci, Hamburg, Rubin, Mullin & Maxwell, for appellant.
Paul D. North, Duffy, North, Wilson, Thomas & Nicholson, for appellee, Zoning Hearing Board of Horsham Township.
Sean P. Flynn, Waters, Gallager & Trachtman, for appellees/intervenors.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.
[ 103 Pa. Commw. Page 510]
Horsham Township appeals an order of the Court of Common Pleas of Montgomery County, which affirmed the order of the Zoning Hearing Board of Horsham Township, granting applicant Patch Up, Inc., a variance to expand its existing structure.
The applicant owns and operates, along with Namcorp, Inc., its lessee, a tavern, which it terms a "stopless go-go bar," featuring live entertainment. The structure, which predates the township's current zoning ordinance, is located in an area of Horsham Township now zoned I-2, and does not conform to the ordinance's use or dimensional requirements.*fn1
The applicant seeks to expand its existing structure by 24.8% in order to increase the tavern's seating capacity. However, the expansion would exacerbate the present dimensional non-conformities; in particular, as
[ 103 Pa. Commw. Page 511]
proposed, the expanded structure would come within four feet and seven inches of the applicant's sideyard property line on the northern side.
Because the applicant did not, by cross-appeal, presently address its entitlement to expand as a matter of right by reason of an increase in trade, we do not address that issue, except to note that the trial court properly concluded that the right of nonconforming use expansion is not absolute, and that the property owner of a nonconforming use may expand beyond ordinance dimensional limitations only by obtaining a variance.*fn2 Jenkintown Towing Co. v. Zoning Hearing Board of Upper Moreland Township, 67 Pa. Commonwealth Ct. 183, 446 A.2d 716 (1982).
In order to establish entitlement to a variance for that purpose, the applicant has the burden of meeting each of the criteria set forth in section 912 of the Pennsylvania Municipalities Planning Code (MPC).*fn3 Hager v. Manheim Township, 23 Pa. Commonwealth Ct. 361, 352 A.2d 248 (1976).
In Jenkintown, this court summarized those criteria.
(1) [T]he property must possess unique physical circumstances; (2) those circumstances, in combination with the ...