The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hunterstown Ruritan Club, :
: No. 1204 C.D. 2015
Appellant : Submitted: February 19, 2016
:
v. :
:
Straban Township :
Zoning Hearing Board :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE WOJCIK FILED: July 14, 2016
Hunterstown Ruritan Club (Club) appeals from the June 12, 2015
order of the Court of Common Pleas of Adams County (trial court) denying the
Club’s appeal from a decision of the Zoning Hearing Board of Straban Township
(Board), which denied the Club’s application to expand a prior nonconforming use
on property it owns in Straban Township, Adams County.1 For the reasons that
follow, we reverse and remand.
The Club is a local unit of the larger Ruritan community service
organization. In 1955, the Club purchased a 14-acre property along Red Bridge
Road for the purpose of providing the community with recreational opportunities,
1
By order dated January 16, 2016, the Board was precluded from filing a brief in this
matter after failing to comply with this Court’s December 14, 2015 order directing it to do so
within 14 days.
such as baseball fields, picnic areas, swing sets, and other activities typically found
in community recreation parks. (Board’s Findings of Fact Nos. 1-4.)
A portion of the property was informally used for go-cart racing
beginning in the early 1960s. The Club eventually entered into a relationship with
the Hunterstown Kart Club (HKC), some of whose members belonged to both
organizations. Subsequently, the two groups formalized their relationship, and in
1982, they entered into the first written lease governing HKC’s use of the property
for go-cart racing. (Board’s Findings of Fact Nos. 5-6.)
The property was not zoned until 1992, when the township adopted its
first zoning ordinance (Ordinance). The Club’s property is zoned MU-2, and go-
cart racing is not a permitted use in that district. However, the parties stipulated
that go-cart racing was a legal pre-existing nonconforming use when the Ordinance
was adopted.2 In 1992, go-cart racing primarily took place on Saturdays, but races
also were held on occasional Sundays as early as 1972. (Board’s Findings of Fact
Nos. 7-8.)
In 2002, the intensity of the use of the property for go-cart racing
began to increase incrementally, and over time both the use of the land and the
hours of operation expanded. In October 2011, the township’s zoning officer
issued a written notice of zoning violation to the Club. In accordance with
2
Ordinance section 140-26A (nonconforming uses) states:
A. Continuation. Any nonconforming use existing on the effective
date of this chapter or created by an amendment to this chapter
may be continued, although such use does not conform to the
provisions of this chapter. Change in ownership or possession of
the use or property shall not prevent the continuance of the
nonconforming use.
2
Ordinance section 140-27,3 the Club applied for a certificate of nonconformance,
requesting recognition of the use of the property for go-cart racing on Saturdays
and Sundays.4 On February 17, 2012, the zoning officer issued a Certificate of
Non-Conformance that identified the pre-existing nonconforming conditions as
follows: “The non-conforming use consists of Go Kart Racing events located on
the existing track at the above site on Saturdays only with all racing ending at or
before 11 pm. Any expansion of this non-conformity must be approved by the
3
In relevant part, section 140-27 states:
A. An application for a certificate of nonconformance may be
made to the Township by the owner of any nonconformity, with
the assistance of the Zoning Officer, as of the effective date of this
chapter . . . .
B. For previously unregistered nonconformities, the Zoning
Officer shall provide the property owner with an application for a
certificate of nonconformance at the time such nonconformity is
discovered.
C. The certificate of nonconformance shall set forth in detail all of
the nonconforming conditions of said property as of the effective
date of this chapter . . . .
* * *
F. The Zoning Officer shall investigate the content of any
application for registration of nonconformity. If the Zoning
Officer is able to verify the existence of the nonconformity at the
time that the land, use, and/or structure became a nonconformity,
he shall issue a certificate of nonconformity. Otherwise, the
Zoning Officer shall deny the application and advise the applicant
of that decision, and of the applicant’s right to appeal that decision
to the Zoning Hearing Board.
4
The record does not reflect any further information concerning the violation notice.
3
municipality prior to its establishment.” (Applicant’s Ex. 3.) The certificate
further stated:
Issuance of this certificate is based upon evidence
submitted by the applicant and with the mutual
understanding that this certificate does not exempt the
above-described property from the applicable provisions
of the Zoning Code pertaining to non-conforming uses.
This certificate also does not relieve the Owner or Lessee
from the responsibility to collect and submit any required
Amusement Tax or from compliance with any other
Municipal regulation or ordinance.
(Id.) Neither the certificate nor the February 17, 2012 letter to the Club from the
zoning officer, (Township Ex. 1), advised the Club that it had a right to appeal.
Thereafter, the Club filed an “Application to the [Board] for a Zoning
Hearing” on March 5, 2012, accompanied by a copy of the certificate of
nonconformance. (Board Ex. 1.) In completing the first page of the three-page
form, the Club described the proposed use of the property as “expansion of activity
to allow current use after 11:00 p.m. on Saturday and on Sunday.” On the next
page, the Club checked the box for requesting a nonconforming use change, adding
that it sought expansion of a prior-existing nonconforming use to allow for racing
on Saturday after 11:00 p.m. and on Sunday. At the April 18, 2012 hearing, the
Club amended the application to remove the request to allow racing after 11:00
p.m. on Saturday. Counsel for the Club also stated that the application was filed as
a request for expansion under section 140-26B of the Ordinance.5
5
Section 140-26B states as follows:
Extension. Extension of the nonconforming use shall be approved
by the Zoning Hearing Board as a special exception, subject to the
following standards and the provisions of §140-61E of this chapter.
(Footnote continued on next page…)
4
Larry Blount, the Club’s president, testified that the Club was
chartered in 1955 under the Ruritan National Organization of Dublin, Virginia. In
1957, the Club purchased the property at issue at a tax sale for the purpose of a
community park. Blount has lived in the area since 2001. He became involved
with the Club in 2002 and stated that it was primarily used for go-cart racing since
that time. (R.R. at 18a-21a, 28a.)
Blount stated that he completed the request form for the certificate of
nonconforming use in December 2011 seeking approval to continue racing on
Saturdays and Sundays. Blount said that the zoning officer asked for more
information and that the Club has been looking through their extensive records for
relevant documents. He identified a treasurer’s report from 1972 and testified that
(continued…)
(1) Extensions shall be limited to the lot containing the use at the
time the use became nonconforming.
(2) The extension of the nonconforming use shall not replace a
conforming use.
(3) The extension shall conform to the requirements of the
underlying district and applicable supplementary regulations,
including, but not limited to, lot, building, setback, coverage,
buffering, height, parking and sign requirements.
(4) The volume and area devoted to the extension shall meet the
requirements set forth below:
(a) [Related to the extension of nonconforming uses within or
to existing structures].
(b) Land operations which are nonconforming uses (e.g.,
mineral recovery operations, agriculture activities, junkyards, and
landfills) may be extended greater than 20% upon the approval of
the Zoning Hearing Board.
5
it reflected at least two Sunday races during June and July of that year. (R.R. at
28a-29a.)
Blount testified that the Club disagreed with the terms of the
certificate of nonconformity that excludes Sunday racing and asked its attorney “to
file to expand the prior existing nonconforming use certificate.” (R.R. at 29a.) He
added that the Club reviewed the criteria of Ordinance sections 140-26B and 140-
61E and that the Club satisfied those specific requirements. Blount noted that the
property is now used exclusively for go-cart racing. He added that the Club
contributes several thousand dollars to the community every year in various ways,
including scholarships. (R.R. at 30a-37a.)
Blount testified that the Club applied for recognition of racing on both
Saturdays and Sundays as a pre-existing nonconforming use when it filed the
request for the certificate of nonconformance. Blount further stated that the Club
submitted evidence to establish the existence of Saturday and Sunday racing and
never received an explanation as to why the certificate did not include
authorization for racing on Sundays. (R.R. at 54a.)
Keith L. Blumenstein, Sr., president of the HKC, testified that he had
been racing at the property since 1989. He estimated that he raced ten to twelve
times at the property that year. He stated that approximately 28 races took place in
2011, with eight of those races scheduled on Sundays. Blumenstein testified that
although Saturday racing was more popular in the 1990s, Sunday is now the more
popular day, and he believed that the ability to hold races on Sundays was essential
to the continued existence of the HKC.
Blumenstein testified that alcohol was not allowed on the property.
He stated that trash is picked up the day after racing and a waste company picks up
6
the dumpster on Wednesdays. “Porta-potties” are leased. Parking of cars, trucks,
and trailers is overseen and patrons are directed to parking places; when
occasionally people park on the street, they are asked to move their cars.
Blumenstein estimated that 250 people raced on the Sunday prior to
the hearing. He said that traffic is manageable because races are scheduled by
division for racers ages five to sixty and people come and go at different times. He
stated that a new public address system had been installed; the speakers all face the
track and there are no speakers on the side of the property near houses.
Blumenstein testified that the prizes for some races are t-shirts or trophies, and
some are cash purses of up to $10,050.
Finally, addressing pedestrian access, Blumenstein testified that there
are no sidewalks anywhere in the Hunterstown area. He also noted that go-carts
are not street legal and must be trailered to the property. (R.R. at 55a-66a, 68a,
75a-76a, 83a-84a.)
Robert Clem Malot, the township’s zoning officer, testified that the
Club did not provide any documentation to demonstrate that racing took place
prior to 1992. He believed that a cover letter he sent with the certificate
sufficiently explained the reasons for his determination. (R.R. at 86a-89a.)
Frank Thomas testified that he has lived directly across the street from
the property since at least 1992. He stated that no Sunday racing had taken place at
the property until about 2007. Thomas said that when the Club was first
considering the track, it stressed that racing would only occur on Saturdays and
end by 11:00 p.m. to appease his father and get community support for the track.
Thomas complained that the go-carts are very loud and that cars park all along the
road. He testified that he cannot enjoy his outdoor property during racing because
7
of the noise; he said he understood that the track has existed for 47 years and he
tolerates racing on Saturdays, but he would like to be outside on Sundays. (R.R. at
91a-98a.)
George Brown, owner of property adjacent to the track, testified that
when he purchased his house in 1976, racing took place only on Saturdays, and
Sunday racing did not begin until after 2000. Like Thomas, Brown said that due to
the noise, he cannot enjoy a picnic or even hold a conversation outside when racing
is taking place. He also said that there were more go-carts and much greater noise
on Sundays than Saturdays. (R.R. at 102a-06a.)
In addition to the findings summarized above, the Board found that
the Club had not demonstrated that the proposed expansion of the nonconforming
use satisfied the requirements of the underlying zoning district and applicable
supplementary regulations. Specifically, the Board determined that the proposed
use does not meet applicable buffering or parking requirements. The Board also
found that the proposed use does not satisfy the special exception standards at
section 140-61E of the Ordinance. In that regard, the Board found that the
proposed expansion will significantly devalue neighboring properties. (Board’s
Finding of Fact No. 17(b).) The Board also found that: the Club failed to
demonstrate that the use is consistent with the logical extension of public services,
such as water or sewer; the Club did not establish planning with respect to
environmental issues, where the proposed use increases noise, traffic, parking
needs, pedestrian use of the land, and removal of vegetation; the Club did not
demonstrate safe and adequate access to streets for vehicles or for pedestrian
access to the property; the Club has not provided fencing or screening, which is a
factor in the devaluation of adjoining properties; the proposed use does not satisfy
8
the parking requirements of the Ordinance: the number of spaces were not
established, and the spaces are not marked to identify parking for standard vehicles
and handicapped parking; and the Club did not establish either the adequacy of
illumination of the property or its effects on adjacent properties. (Board’s Findings
of Fact Nos. 17-(a)-(g).)
The Board explained that, in rendering its decision, it recognized that
the Club has a pre-existing nonconforming use. The Board next noted that the
Club did not appeal from the use certificate issued by the zoning officer. However,
the Board stated that this fact “does not control the decision in this case since the
nonconforming use certificate as well as the testimony at hearing establishes that
the use existed on the date [the Ordinance was adopted],” and the Board
acknowledged that “[t]he contents of the certificate do not freeze the use as it
existed at the time of Ordinance adoption.” (Board decision, discussion.) The
Board observed that the application submitted by the Club requested an expansion
of a nonconforming use under the provisions of Ordinance section 140-26, under
which an applicant must satisfy the requirements for a special exception. Based on
the findings summarized above, the Board concluded that the Club failed to satisfy
the special exception standards of the Ordinance and denied the Club’s application
for an expansion of its nonconforming use.
The Club appealed to the trial court, arguing that it was not proposing
a change in use or to physically expand the area used for racing but only to conduct
the same racing that had occurred for years. The township countered that the issue
before the Board was not whether there was a prior nonconforming use for Sunday
racing but whether the Club was able to meet Ordinance requirements to expand
racing to include Sundays. The trial court reasoned that the Club’s failure to
9
appeal from the certificate of nonconformance as well as its application for a
nonconforming use change indicated that the Club was not challenging the
limitation of its nonconforming use to Saturdays only, but was seeking to expand
the use to include Sundays. The trial court further concluded that the Board did
not deny the Club its right to the natural expansion of its nonconforming use but,
instead, “accepted the Certificate of Nonconformance as establishing the prior use
(racing on Saturdays only) and then denied the request to extend racing to
Sundays” based on a failure to satisfy Ordinance standards. (Trial court op. at 5.)
Accordingly, the trial court denied the Club’s appeal.
On appeal to this Court,6 the Club first argues that it never abandoned
the nonconforming use of go-cart racing on Sunday. The Club maintains that the
Board’s Finding of Fact No. 8 confirms that fact and supports the Club’s position
that the lawful nonconforming use includes racing on both Saturday and Sunday. 7
We agree.
6
Where, as here, the parties present no additional evidence to the trial court, our scope of
review is limited to determining whether the zoning hearing board committed an error of law or
abused its discretion. Good v. Zoning Hearing Board of Heidelberg Township, 967 A.2d 421,
423 n.5 (Pa. Cmwlth. 2009).
7
The Club also argues that the Board erred in requiring it to satisfy the standards of
section 140-26B3, which are applicable to nonconforming use expansions that involve a change
in physical characteristics or footprint. The Club contends that such requirements are not
applicable to an established use that is conducted within an established footprint, when the only
issue for consideration is the operation of the same use on a different day. Specifically, the Club
asserts that the Board erred in applying section 140-26B3, requiring the Club to satisfy the
Ordinance provisions governing lot, building, setback, coverage, buffering, height, parking and
sign requirements, where the proposed expansion is merely temporal. The Club emphasizes that
Sunday racing does not involve an enlargement of the track or facilities, such as parking,
concessions, or toilets, but utilizes existing parking and facilities on the same property with the
existing buffers, etc., that accommodate the preexisting nonconforming use.
(Footnote continued on next page…)
10
A lawful nonconforming use is a use that predates the enactment of a
prohibitory zoning restriction, DoMiJo, LLC v. McClain, 41 A.3d 967, 972 (Pa.
Cmwlth. 2012), and the right to continue a legal nonconforming use is entitled to
the constitutional protection of due process. Smalley v. Zoning Hearing Board of
Middletown Township, 834 A.2d 535, 539 (Pa. 2003). In Pennsylvania Northwest
Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584 A.2d 1372,
1375 (Pa. 1991), the court explained that the fundamental basis for the protection
of uses and structures that were lawful when instituted is the “inherent and
indefeasible” right of this Commonwealth’s citizens to possess and protect
property guaranteed by Pa. Const. art. I, §1. Thus, “[a] lawful nonconforming use
establishes in the property owner a vested property right which cannot be
abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished
by eminent domain.” 584 A.2d at 1375. In this case, the Board specifically found
that Sunday racing took place prior to the enactment of the Ordinance, and nothing
in the record suggests that such use was abandoned.
In DoMiJo, we contrasted a property owner’s constitutionally
protected property right to continue a legal nonconforming use, which is an interest
(continued…)
As to the special exception standards set forth in Ordinance section 140-61E, the
Club further asserts that, since no public water or sewer services are available in the area of the
property, a rural and substantially undeveloped area of the Township, the Board abused its
discretion by finding that the Club failed to offer evidence of a logical extension of public
utilities. The Club also argues that the Board erred in finding that off-street parking and lack of
pedestrian access present safety hazards and that lack of fencing or screening are factors that
devalue adjoin properties. According to the Club, the testimony of objectors was entirely
speculative and insufficient to establish harm to the public health, safety and welfare.
11
that runs with the land, with a certificate of nonconforming use, which is personal
to the property owner. Id. at 972.
A certificate proves the existence of a nonconforming
use. The mere absence of a certificate [of
nonconforming use] does not deprive the landowner of
his right to continue a lawful nonconforming use.
Rather, in an administrative proceeding such as this,
absence of a certificate generally deprives a landowner of
the most efficient method of proving the existence of the
use, and shifts to the landowner the burdens of proof and
persuasion. In short, a certificate represents a procedural
advantage, not an independent property right.
Conversely, the lack of a certificate results in a
procedural disadvantage and not in the loss of a property
right.
Here, the [Board] determined [that the applicant] was not
entitled to continue the nonconforming use because it
failed to timely re-register the use after purchasing the
subject property. The [Board] erred in reaching this legal
conclusion. Because the right to continue a
nonconforming use arises from constitutional protections
and not from regulatory provisions, the right cannot be
lost in this way.
Id. at 973 (emphasis added). Similarly, the Board erred in this case by concluding
that the Club was not entitled to continue its nonconforming use because the use
was not reflected in the certificate of nonconformance.
Additionally, under the doctrine of natural expansion, “the right to
expand [a nonconforming use] as required to maintain economic viability or to
take advantage of increases in trade, is also constitutionally protected.” Nettleton
v. Zoning Hearing Board of Pittsburgh, 828 A.2d 1033, 1037 n.3 (Pa. 2003).
Consequently, “a nonconforming use cannot be limited by a zoning ordinance to
the precise magnitude thereof which existed at the date of the ordinance . . . .”
12
Humphreys v. Stuart Realty, 73 A.2d 407, 409 (Pa. 1950). See, e.g., Limley v.
Zoning Hearing Board of Port Vue Borough, 625 A.2d 54 (Pa. 1993) (use of
property as a public restaurant and bar was a permissible expansion of a prior
nonconforming use as a private club); Pappas v. Zoning Board of Adjustment of
City of Philadelphia, 589 A.2d 675 (Pa. 1991) (full-service pizza restaurant was a
permissible expansion of a takeout sandwich shop); Chartiers Township v. William
H. Martin, Inc., 542 A.2d 985 (Pa. 1988) (upholding the protected right of
operators of a nonconforming landfill to increase the daily intake of solid waste);
Silver v. Zoning Board of Adjustment, 255 A.2d 506 (Pa. 1969) (invalidating as
unconstitutional a zoning provision that prohibited any increase in the number of
dwelling units in an apartment building that was lawfully nonconforming as to
use); Itama Development Associates, LP v. Zoning Hearing Board of Rostraver,
132 A.3d 1040 (Pa. Cmwlth. 2016) (increase in the intensity of a prior use such as
variations in the types of vehicles and hours of operation did not justify a finding
of a new or different use); Foreman v. Union Township Zoning Hearing Board,
787 A.2d 1099 (Pa. Cmwlth. 2001) (mere increase in the frequency of adult
entertainment does not render the current use of the property a new or different
use); Clanton v. London Grove Township Zoning Hearing Board, 743 A.2d 995
(Pa. Cmwlth. 1999) (processing topsoil by drying and bagging it prior to transport
was a continuation of the nonconforming use of trucking loose topsoil away for
bulk sale).8
8
These protections are applicable only to nonconforming uses. In contrast,
nonconforming structures have no protected right to expand in violation of the applicable
regulations. Nettleton, 828 A.2d at 1037 n.3 (citing Miller & Son Paving, Inc. v. Wrightstown
Township, 451 A.2d 1002, 1007 (Pa. 1982), and Fagan v. Philadelphia Zoning Board of
Adjustment, 132 A.2d 279, 281 (Pa. 1957)).
13
While the right to continue a legal nonconforming use is entitled to
constitutional protection, the right to natural expansion is not unlimited, and
municipalities may impose reasonable restrictions on expansions of
nonconforming uses. Smalley, 834 A.2d at 544; Silver v. Zoning Board of
Adjustment, 255 A.2d 506, 507 (Pa. 1969) (expansion may not be detrimental to
public health, welfare, and safety). Thus, “conditions on the land associated with
the protected use” may be subject to reasonable regulation. Baer v. Zoning
Hearing Board of Quincy Township, 782 A.2d 597, 601 (Pa. Cmwlth. 2001);
Cornell Uniforms, Inc. v. Abington Township, 301 A.2d 113 (Pa. Cmwlth. 1973)
(zoning board has continuing authority to place reasonable restrictions on a
nonconforming use).
However, such regulation cannot be accomplished by way of a
certificate of nonconformance, which, as the Board correctly noted, can neither
expand nor limit a lawful nonconforming use. Indeed, it is now well settled that
the grant or denial of a nonconforming use certificate has no bearing on an
individual’s property rights. Slusser v. Black Creek Township Zoning Hearing
Board, 124 A.3d 771 (Pa. Cmwlth. 2015).9 The issuance of a nonconforming use
certificate does not grant a landowner any additional property rights, id., and the
9
In Slusser, objectors appealed the issuance of a nonconforming use certificate to a
nearby landowner. The trial court affirmed the dismissal of the appeal as untimely, and this
Court affirmed on different grounds. Specifically, we concluded that an application for a
nonconforming use certificate is not an “application for development” under section 914.1 of the
Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of
December 21, 1988, P.L. 1329, 53 P.S. §10914.1 (“No person shall be allowed to file any
proceeding with the board later than 30 days after an application for development, preliminary or
final, has been approved . . . .”). We held that the issue of whether the appeal was timely was
irrelevant and that, because the approval of the nonconforming use certificate did not grant the
landowner any additional property rights, or authorize new development or construction, the
zoning officer’s issuance of the certificate was not appealable under section 914.1 of the MPC.
14
absence of a certificate does not deprive landowner of his right to continue a lawful
nonconforming use. TKO Realty, LLC v. Zoning Hearing Board of Scranton, 78
A.3d 732 (Pa. Cmwlth. 2013). The purpose of a nonconforming use certificate is
simply to document the existence of the nonconforming use. Slusser, 124 A.3d at
774. Consequently, the failure to appeal from the terms of a certificate of
nonconformance results only in a procedural disadvantage and not in a restriction
or limitation of constitutionally protected property right. DoMiJo.
Here, while the Board purportedly recognized the legal insignificance
of the certificate, it nevertheless failed to recognize that the Club’s preexisting
lawful use of the property for Sunday racing was entitled to constitutional
protection. After receiving a document that, on its face, deprived the Club of its
lawful nonconforming use of the property on Sundays, the Club was forced to
request a hearing, during which it presented evidence to establish that Sunday
racing preceded the adoption of the Ordinance, see Board’s Finding of Fact No. 8,
that such use expanded over time, and that Sunday racing is essential to the
continued viability of the Club. See, e.g., R.R. at 62a-65a. In addition to arguing
that the increase in Sunday races over time was a natural expansion of a lawful
nonconforming use, the Club acknowledged the concerns expressed by its
neighbors and represented that it would comply with all aspects of the Ordinance.
(R.R. at 124a-25a.) Given this record, the Board erred in determining that the Club
is not permitted to hold any races on Sunday, and the trial court erred in affirming
the Board’s decision.10
10
We do not address whether the Club’s present use of the property for Sunday racing
falls within the natural expansion doctrine because the Board made no findings in this regard.
Although the Club presented evidence concerning the existence and expansion of the Club’s
(Footnote continued on next page…)
15
Accordingly, we reverse the trial court’s order and remand this matter
to the trial court for further proceedings, which may include remand to the Board.
MICHAEL H. WOJCIK, Judge
(continued…)
nonconforming use of the property for Sunday races, the Board did not find, even in the
alternative, that the use exceeded the bounds permitted under the natural expansion doctrine.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hunterstown Ruritan Club, :
: No. 1204 C.D. 2015
Appellant :
:
v. :
:
Straban Township :
Zoning Hearing Board :
ORDER
AND NOW, this 14th day of July, 2016, the order of the Court of
Common Pleas of Adams County, dated June 12, 2015, is reversed, and the matter
is remanded to the trial court for further proceedings consistent with the forgoing
opinion.
Jurisdiction relinquished.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Hunterstown Ruritan Club, :
Appellant :
:
v. : No. 1204 C.D. 2015
: Submitted: February 19, 2016
Straban Township Zoning Hearing :
Board :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
DISSENTING OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 14, 2016
It is generally accepted that when an administrative determination is
made, with reasons given, an appeal can be taken to an administrative agency with
subsequent appeals allowed to trial courts and appellate courts. That determination,
unless reversed on appeal, is final and cannot be collaterally attacked. Properly
relying on DoMiJo, LLC v. McClain, 41 A.3d 967 (Pa. Cmwlth. 2012), the majority
holds that an administrative determination embodied in a certificate of
nonconformance1 is not final, is not binding on the person who receives it, and
1
Section 107 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as
amended, 53 P.S. §10107, defines a “Nonconforming use” as “a use, whether of land or of structure,
which does not comply with the applicable use provisions in a zoning ordinance or amendment
heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of
such ordinance or amendment, or prior to the application of such ordinance or amendment to its
location by reason of annexation.”
(Footnote continued on next page…)
because it is personal to the property owner that receives it, does not run with the
land. Because I would overrule DoMiJo and hold that a certificate of
nonconformance issued pursuant to the Municipalities Planning Code (MPC)2 is final
as to the zoning nonconformity of the property, I respectfully dissent.
DoMiJo is based on three points, which are:
A certificate of nonconformance does not fix the
nonconforming use of the property but is only a procedural
advantage or disadvantage in court cases and does not
deprive an owner of the right to other “lawful”
nonconforming uses not applied for and not listed.
A certificate of nonconformance does not run with
the property but is personal to the person who applied for it.
That because the right to continue a nonconforming
use arises from constitutional protections and not from
regulatory provisions, the nonconforming right cannot be
(continued…)
The continuance of nonconforming uses under zoning ordinances is
countenanced because it avoids the imposition of a hardship upon the
property owner and because the refusal of the continuance of a
nonconforming use would be of doubtful constitutionality. Even
though zoning ordinances permit the continuance of nonconforming
uses, it is the policy of the law to closely restrict such nonconforming
uses and to strictly construe provisions in zoning ordinances which
provide for the continuance of nonconforming uses. Nonconforming
uses, inconsistent with a basic purpose of zoning, represent conditions
which should be reduced to conformity as speedily as is compatible
with the law and the Constitution.
Hanna v. Board of Adjustment of Borough of Forest Hills, 183 A.2d 539, 543 (Pa. 1962).
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
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lost by some regulatory provision such as a certificate of
nonconformance.
DoMiJo, 41 A.3d at 972-73.
Let us compare to see if these points are valid when compared with the
statutory scheme that the General Assembly authorized the municipality to issue and
a property owner to challenge a certificate of nonconformance.
A.
Section 613 of the MPC, 53 P.S. §10613, authorizes the municipality to
establish a system to identify the nonconforming uses, i.e., a “census” of those uses
and then provide for the registration of those uses so that all can know with certainty
what the property can be used for. It provides:
Zoning ordinances may contain provisions requiring the
zoning officer to identify and register nonconforming uses,
structures and lots, together with the reasons why the
zoning officer identified them as nonconformities.
As can be seen, this provision authorizes a systematic way for a
municipality to identify all the nonconforming uses, structures and lots that exist, not
just some of those uses that exist on the property. It provides for the identification of
those uses to enable a municipality to administer and enforce the zoning ordinance
regarding such uses as well as to better aid in planning, i.e., rezoning. A “fixed and
final” certificate of nonconformity also enables future owners of the property as well
as adjoining property owners to know what the nonconformity is and how the
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property can be occupied to the same extent that they would know how the property
could be occupied if it was in conformity with the zoning ordinance.
Moreover, nothing in Section 613 of the MPC even suggests that a
determination leading to a certificate of nonconformance is not an adjudication but
some procedural device to be used in some speculative court action. Nor does it
create a system where a certificate of nonconformance is personal to each person who
receives a certificate. Zoning is property based, not people based; it is irrelevant who
owns the property, so when the zoning officer identifies the nonconformity, just like a
variance, the certificate [and variance] runs with the property and not with the
individual.
B.
The central flaw in DoMiJo is that a certificate of nonconformance is a
regulatory device to take away a property owner’s nonconforming rights when it does
no such thing. All that it does is allow the municipality to initially identify whether
the nonconformity of the property is constitutionally allowed to continue. If a
property owner disagrees with that determination, under Section 909.1(a)(3) of the
MPC, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S.
§10909.1(a)(3), that determination can be appealed to the zoning hearing board. That
section provides:
(a) The zoning hearing board shall have exclusive
jurisdiction to hear and render final adjudications in the
following matters:
(3) Appeals from the determination of the zoning
officer, including, but not limited to, the granting or denial
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of any permit, or failure to act on the application therefore,
the issuance of any cease and desist order or the registration
or refusal to register any nonconforming use, structure or
lot.
Through this process set forth in the MPC, the property owner’s
constitutional right to use the property for the nonconforming use is not taken away;
instead, a certificate of nonconformance is used to determine what the property
owner’s constitutionally protected nonconforming use is, with all the due process that
the property owner is entitled to.
Accordingly for the foregoing reason, I respectfully dissent.
______________________________
DAN PELLEGRINI, Senior Judge
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