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Bernotas v. Zoning Hearing Board of City of Bethlehem

Commonwealth Court of Pennsylvania

June 7, 2013

Al Bernotas, Walter Ward, and Guishu Fang, Appellants
v.
Zoning Hearing Board of the City of Bethlehem and Ghassan G. Elias, d/b/a Elias Market

Argued: March 11, 2013

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge.

OPINION

BONNIE BRIGANCE LEADBETTER, Judge

Al Bernotas, Walter Ward, and Guishu Fang (Objectors) appeal from the orders of the Court of Common Pleas of Northampton County (trial court) that affirmed the decisions of the Zoning Hearing Board of the City of Bethlehem (Board) granting Ghassan G. Elias (Applicant), d/b/a Elias Market, variances and a special exception to allow an expansion of the nonconforming use of his property. The Objectors question whether Applicant established entitlement to the requested expansion of the nonconforming use. We affirm.

I.

Applicant is the co-owner of a 1.82-acre lot located at the intersection of Johnston Drive and State Route (S.R.) 191 (Linden Street) in the City of Bethlehem (City). S.R. 191 is a busy arterial street separating the medium density residential zoning district to the east and the R-R Rural Residential zoning district to the west where Applicant's lot is located. The original structure on the lot was constructed in 1870. There are currently three buildings on the lot: a main building consisting of 11, 067 square feet, and two outbuildings consisting of 2217 and 1152 square feet. The outbuildings are located 10 to 12 feet north of the main building. The larger outbuilding recently sustained fire damages and has been condemned and scheduled to be demolished. There are 85 parking spaces on the lot. The main building is accessed from Johnston Drive and S.R. 191, and the outbuildings have a separate access from S.R. 191 through a loop road. There are single-family dwellings on the west and north of the lot, apartment buildings on the east across S.R. 191, and a church and a vacant lot on the south across Johnston Drive.

Applicant purchased the subject property in 2006 and has operated a farmers' market/grocery store, known as Elias Market, in the main building. Although the record is unclear when such use was established on the lot, it is undisputed that Elias Market is a preexisting nonconforming use under The Zoning Ordinance of the City of Bethlehem (Ordinance), enacted to be effective September 25, 1970 and amended in March 2008.[1] Article 1323, Section 1323.03 of the Ordinance provides that "[t]he lawful use of any building, any structure or the lawful use of any land existing at the effective date of this Ordinance may be continued although such use does not conform with the provisions of this Ordinance except as otherwise provided in this Article."

Prior to Applicant's purchase, the former owners expanded the nonconforming use on the lot by 50% after obtaining special exceptions pursuant to Section 1323.04 of the Ordinance, which provides in relevant part:

A lawful nonconforming use or structure shall only be expanded if the following requirements are met:
(a) The total building floor area or total land area occupied by the nonconforming use or structure, whichever is more restrictive, shall not be increased by greater than 50 percent beyond the area that existed at the time the use or structure first became nonconforming.
(1) The 50 percent maximum shall be measured in aggregate over the entire life of the nonconformity. Therefore, for example, if a use became nonconforming in 1971, and was expanded by 20 percent in 1980, then one 30 percent expansion would be permitted today.
(2) These provisions apply regardless of whether the use or structure is expanding within an existing building or an addition.
(b) Special exception approval shall be required, except that a one-time expansion of up to 5 percent of the nonconforming first floor building footprint in existence as of the adoption date of this [O]rdinance shall be permitted by right.
(c) Any expansion of a nonconforming use or structure shall meet all required setbacks and all other requirements of this Ordinance. No new ...

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