Philadelphia v. Angelone

Dissenting Opinion by

Judge Kramer :

Once again this Court is confronted with issues concerning the expansion of a nonconforming use of zoned property, and once again I must respectfully dissent. Contrary to the statements found in the majority opinion that the Pennsylvania Supreme Court has approved th'e use of an arbitrary percentage (here 10%) in municipal zoning ordinances for permissible expansion of nonconforming uses, this writer has not found any such pronouncement. The majority relies upon two cases (Humphreys et al. v. Stuart Realty Corp., 364 Pa. 616 , 73 A. 2d 407 (1950), and Philadelphia Art Alliance v. Philadelphia Zoning Board of Adjustment, 377 Pa. 144 , 104 A. 2d 492 (1954) as support for the use of such arbitrarily set expansion percentages; but a careful reading of those cases indicates that the Pennsylvania Supreme Court has not ruled specifically upon this issue to date. The Humphreys case was a nuisance case which turned on whether storage tanks were structures. The Philadelphia Art Alliance case was a case where the expansion was within the set percentage (there 25%) and onto an adjoining lot not covered by the then existing nonconforming use. Even under the reasoning of this dissent, a variance for adjoining property is proper.

In Schiller-Pfeiffer, Inc. v. The Upper Southampton Township Board of Adjustment, 1 Pa. Commonwealth Ct. 588 , 276 A. 2d 334 (1971), this writer set forth, in a dissenting opinion, the reasons why a fixed expansion percentage without proof of its applicability is confiscatory, in those cases where the municipality, by a *132 subsequent zoning ordinance or an amendment thereto, restricts a nonconforming nse (of what had been a conforming use) by such an arbitrary and unsupported use of police powers. Everything I said there is equally applicable here.

None of the cases cited by the majority, or the Board in its brief, is applicable to the facts of this case. All of such citations are cases (1) where the property owner requested a variance, or (2) the zoning ordinance, or its amendment, creating the nonconformity was passed before the property owner acquired such use, or (3) the expansion was onto adjoining property.

By comparison, here we have a property owner who was permitted, under a use certificate, to invest in and develop his property for a lawful use which was thereafter transformed into a nonconforming use, and who now seeks a building permit but is restricted from a natural expansion by an arbitrary percentage written into the zoning ordinance amendment.

There is not one word of testimony or one piece of evidence in the record of this case which supports the 10% restriction to appellees’ requested expansion. Without such support the restriction should be unenforceable.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining an appeal of Leandro Angelone and his wife (appellees here) from an adjudication of the Zoning Board of Adjustment (Board) of the City of Philadelphia (City), which had refused a variance * to the appellees. *133 The lower court directed the Board of Adjustment to grant the variance requested. The court below did not take any additional testimony but decided the case on the record made before the Board.

In 1965, the appellees were granted a use permit to establish a funeral home (a permitted use) in what was then zoned a C-2 Commercial zone. Later, on November 22, 1965, the City of Philadelphia rezoned this area where the funeral home exists to a R-9 Residential. Because funeral homes are not a permitted use in an R-9 zoned area, the funeral home thereby became a nonconforming use. In 1968, the appellees filed an application to expand the funeral home by the erection of a structure measuring 18 feet by 35 feet, * as an addition to the existing building. This addition would be a one-story addition to the two-story structure, together with a basement. The entire lot is approximately 19 feet in width by 120 feet in length. It should be noted here that the application also requested approval for construction onto the front of the building, but this was withdrawn at the hearing. The amended application concerns only a construction onto the rear of the existing two-story funeral home. If the addition, as requested, is permitted, there will still be open land to the rear of the property measuring 19 feet by 37 feet. The majority infers that the rear of the property was not used for funeral business purposes. However, an examination of the photographic evidence indicates to this writer that it is used for funeral business purposes.

The Zoning Code of the City of Philadelphia at Section 14-104 provides as follows:

“Section 14-104 Non-Conforming Structures and Uses

*134 '•'It is the purpose of this section to discourage and eventually eliminate nonconforming uses and structures because they are detrimental to the orderly development of the City. (Emphasis added.)

“(7) Extension of Structures Containing Nonconformity Uses. No structural extensions or additions to a structure containing a nonconforming use shall be made after July 15, 1957, which, when added to all structural extensions and additions made since the use first began to be nonconforming, shall cause the aggregate gross floor area of all such structural extensions and additions to exceed 10% of the gross floor area of the structure when the use first began to be nonconforming, subject to the following provisions:

“(a) Any such structural extensions or additions shall be in conformity with the area and height regulations of this Title for the district where the structure is located, and shall be contained within the boundaries of the lot occupied by the structure at the time the use first began to be nonconforming; . . .” (Emphasis added.)

It is also interesting to note that the city ordinance of November 22, 1965, which transformed the funeral home property of the appellees from C-2 Commercial to R-9 Residential, is restricted to a triangular-shaped tract of property 70 feet by 60 feet by 60 feet. The record shows that the purpose of this amendatory ordinance was to prohibit these particular appellees from further utilizing their property as would have been permitted under the commercial classification, and was directed specifically to them and not as a general overall city planning measure. In other words, it is clear to this writer that the City has used its zoning powers for the sole purpose of singling out these appellees for a freeze treatment of what was a lawful permitted use. After the appellees were enticed into a lawful business venture, the City changed the rules of the game. The *135 platitudes of the majority do not alter the fact that these appellees have had substantial property rights taken from them.

The record indicates that the appellees are unable to use the existing structure, which is approximately 19 feet wide by 36 feet long, for the natural growth purposes (now nonconforming) of operating their funeral home. The established reason for the expansion is to permit the appellees to provide more seating and standing room for visitors attending funeral services in connection with the viewing of deceased persons. Although some question was raised concerning the parking facilities, this was adequately answered by the submission of a letter from Temple University authorizing appellees to use Temple parking facilities nearby.

Inasmuch as the court below did not take additional testimony, the scope of review by this Court involves a question of whether the Zoning Board of Adjustment abused its discretion or committed an error of law. Village 2 at New Hope, Inc., Appeals, 429 Pa. 626 , 241 A. 2d 81 (1968); DiSanto v. Zoning Board of Adjustment, 410 Pa. 331 , 189 A. 2d 135 (1963).

The Board argues that in light of the Zoning Code, as quoted above, which limits the expansion of a nonconforming use to ten percent of the gross floor area of the structure when the use first became nonconforming, the appellees were duty-bound to meet the burden of proof to establish a right to a variance. This means that the appellees would be required to prove unnecessary hardship upon and which is unique or peculiar to their property, and secondly, that the proposed variance is not contrary to the public safety, health, morals or general welfare. However, we note that in all of the cases cited by the Board, such as Clifton Heights Appeal, 440 Pa. 101 , 270 A. 2d 400 (1970) and Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277 , 263 A. 2d 123 (1970), the property owner who *136 was seeking the expansion of a nonconforming use had purchased the realty after the zoning ordinance had been enacted or amended. In this case, as the related facts indicate, the appellees purchased and established their funeral home use prior to the time the City changed the rules of the game and made it nonconforming, and this fact makes the difference.

I agree with the majority that it is well recognized that a municipality may restrict the use of property through a zoning ordinance within its police powers to protect the public health, safety, morals and general welfare. This principle is so well-established, it needs no citation. However, there is another well-established constitutional principle that the exercise of this police power must not be unreasonable, unduly oppressive, or patently beyond the necessities of the case. When the government attempts to regulate property rights by means of a zoning ordinance, it must have a real and substantial relation to the object sought to be obtained. Cott Beverage Corporation v. Horst, 380 Pa. 113 , 110 A. 2d 405 (1955).

We have long recognized that “Retroactive legislation is so offensive to the Anglo-Saxon sense of justice that it is never favored.” Appeal of Sawdey, 369 Pa. 19, 22 , 85 A. 2d 28, 30 (1951). In this case, the City of Philadelphia clearly intended to discourage and eventually eliminate this nonconforming use by its retroactive application of its zoning amendment. This is an attempt to take appellee’s property for a public purpose without paying for it.

Another constitutional principle involved in this matter is that of the citizen’s rights pertaining to his private property, and the Court in the case of the Lord Appeal, 368 Pa. 121, 125 , 81 A. 2d 533, 535 (1951) said: “Both our Federal and State Constitutions provide for and guarantee to every citizen certain unalienable rights and liberties; and with respect to property, *137 limit the paramount right of the Sovereign State to an owner’s land for a public use only, and even then, only if it pays the owner just compensation: Fifth and Fourteenth Amendments of the Constitution of the United States; Article I, Section 10; Article XVI, Section 8, Constitution of Pennsylvania. . . .” And further, Justice Bell in the majority opinion said: “. . . an owner of property is still entitled in Pennsylvania to certain unalienable constitutional rights of liberty and property. These include a right to use his own home in any way he desires, provided he does not (1) violate any provision of the Federal or State Constitution; or (2) create a nuisance; or (3) violate any covenant, restriction or easement; or (4) violate any laws or zoning or police regulations which are constitutional. It is now well settled that zoning acts and ordinances passed under them are valid and constitutional as structural or general legislation, whenever they are necessary for the preservation of public health, safety, morals or general welfare, and not unjustly discriminatory, or arbitrary, or unreasonable, or confiscatory in their application to a particular or specific piece of prop&tdy [citing many cases].” (Emphasis added.)

In this ease, the City of Philadelphia in patently intending to “eliminate” this nonconforming use, passed a piece of special legislation thereby bringing the use of the property under the ten percent expansion of nonconforming use section of the Zoning Code. There is not one word of testimony in the record of this case before the Board on how an expansion in excess of the ten percent in any way is detrimental to the public health, safety, morals and general welfare of the City of Philadelphia or the community where this property exists. To prohibit the appellees from using their property reasonably, by the application of a set percentage which was arbitrarily set and made applicable to all of the property in the entire area of the City of Phila *138 delphia, can have no application to the facts in this case unless the City so proves it to be applicable. The absence of proof as to the applicability of the set percentage makes the restriction unreasonable and confiscatory.

The City, in an attempt to sidestep the clear ruling of the Pennsylvania Supreme Court in the case of Gilfillan’s Permit, 291 Pa. 358 , 140 A. 136 (1927) and Silver v. Zoning Board of Adjustment, 435 Pa. 99 , 255 A. 2d 506 (1969), has established this ten percent maximum expansion of a nonconforming use. In Gilfillan, the Court said: “Petitioner’s business had been established at its present location long before the passing of the zoning ordinance and was actively conducted at the time the ordinance went into effect; accordingly, as the property was then used for lawful purposes, the city was without power to compel a change in the nature of the use, or prevent the owner from making such necessary additions to the existing structure as were needed to provide for its natural expansion and the accommodation of its increased trade, so long as such additions would not be detrimental to the public welfare, safety and health.” In Silver , the Court said: “What the city cannot do is indiscriminately forbid all natural expansion . . . this right 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 nonconforming use.” What the City has attempted here is to meet the conditions which the Supreme Court discussed by providing what the City believes would be a proper expansion of the natural growth of all nonconforming uses. This it cannot do with impunity. It is assumed that the only reason the City of Philadelphia did not set the percentage at one percent is that that would be so obviously unreasonable and *139 confiscatory that it could not stand the test of scrutiny. I say that a blanket ten percent maximum is likewise unreasonable and confiscatory.

It is also interesting to note that the Board has taken it upon itself to require an applicant who requests an expansion of a nonconforming use beyond the ten percent to bear the heavy burdens which must be met to support a variance. In my opinion, a variance and an expansion of a nonconforming use are two different things. Variance is used when a property owner desires to expand (or do any other thing which might be contrary to the regulations for the zone in which his property exists) under circumstances where the property owner has no other rights. I agree with the majority when it cites cases (Peirce Appeal, 384 Pa. 100 , 119 A. 2d 506 (1956); Mack Appeal, 384 Pa. 586 , 122 A. 2d 48 (1956); O’Neill et al v. Zoning Board of Adjustment, 434 Pa. 331 , 254 A. 2d 12 (1969); Walter v. Philadelphia Zoning Board of Adjustment, 437 Pa. 277 , 263 A. 2d 123 (1970) ; and Clifton Heights Appeal, 440 Pa. 101 , 270 A. 2d 400 (1970)) that where there is a petition for a variance or where the expansion is onto property not within the nonconforming parcel, the property owner must bear the burden of a variance; but those are not the facts here. A nonconforming owner has additional rights under which he may expand on his property to the natural growth of his use without the need to prove those elements necessary to substantiate a variance. Some courts have consistently countenanced the need to prove a variance in all expansion of nonconforming use cases. I take issue with such an approach. I believe an implication is to be made from Silver, supra, that, if a municipality attempts to restrict expansion of a nonconforming use entirely, the property owner need not prove a variance but rather only that he has requested to expand within the limits of “natural growth”. The law does not per *140 mit the municipality to restrict that natural growth entirely or to ten percent for all nonconforming uses over such a large area as the City of Philadelphia. It is an unreasonable restriction whether it is “entirely” or a percentage not shown to be reasonably applicable^ If the property owner has proven that the expansion of his nonconforming use is reasonably within the natural growth of that use, and the municipality cannot prove that the restrictively set percentage is justified under its police powers, then the application for a use permit should be granted. As I said in Schiller-Pfeiffer, supra, this does not mean that set percentages may not be used at all. Rather, it means that if the municipality desires to restrict “natural expansion” permitted under the Silver, supra, doctrine, the municipality should be required to prove that its set percentage restriction is reasonably appropriate to the property and use in question.

In this case, the record amply justifies a conclusion that the expansion requested through the application for a use permit was within the reasonable natural growth of the use and should have been granted by the Board. To the extent that the order of the court below transformed the application to a request for a variance, the Order should be reversed. With regard to the Order reversing the Board and granting the permit to extend the funeral home structure to the rear, the Order should be affirmed.

Before getting into the facts of the case, it should be noted that the record indicates that the appellees made application for a zoning permit to erect an extension to their existing funeral home building. The appellees did not request a variance. However, during the course of the hearing, the Board transformed these proceedings into a request for a variance. The lower court and the majority gloss over this questionable procedure. How the *133 Board and the court below are permitted to make this transformation without authority from the Legislature shaU remain a mystery.

According to the majority, the zoning ordinance would permit an extension 10'6" x 19'.