language in zoning ordinance that certificate to continue nonconforming use “should be filed” within a year of the effective date of ordinance amendments was permissive, not mandatory
How later courts described this case
- language in zoning ordinance that certificate to continue nonconforming use “should be filed” within a year of the effective date of ordinance amendments was permissive, not mandatory
- neither the ordinance nor the MPC requires notice or a public hearing before the issuance of a certificate of nonconforming use
Written by the judges who cited it.
The opinion
CONCURRING OPINION BY
Judge SIMPSON.
I concur with the majority’s thoughtful disposition of this case, which affirms the respected trial court. I write separately to offer an additional response to the argument that a certificate of nonconformance must be issued within one year after the nonconformity is created; otherwise, the right to continue the nonconforming use is lost, and municipal authorities are powerless to recognize the nonconforming use.
The provisions in the Lower Windsor Township Zoning Ordinance providing for registration of nonconforming uses and issuance of certificates of nonconformance are typical of many ordinances. Appellate courts, however, have yet to clearly decide how these provisions affect lawful nonconforming uses which are not timely registered or issued certificates. See Smalley v. Zoning Hearing Bd. of Middletown Twp., 575 Pa. 85 , 834 A.2d 535 (2003).
Because the right to continue a lawful nonconforming use is a property right of constitutional dimension, the right to continue cannot be taken without due process. In its most basic form, procedural due process requires notice and an opportunity to be heard. Therefore, I believe that a zoning ordinance cannot extinguish the right to continue a lawful nonconforming use based solely on the passage of time, such as the passage of a registration period. There should also be proof that the *771 owner knew of the registration requirement and the consequences of failui'e to register. This position is consistent with learned commentary on the topic. See Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 7.1.9 (2009).
While it is permissible for zoning ordinances to shift burdens of proof or create presumptions regarding abandonment of lawful nonconforming uses, ordinances must provide the owner with notice (such as clear language in the ordinance of the effect of passage of time), a hearing, and an opportunity to prove an intent to continue the use. Otherwise, the owner is deprived of a property right without due process.