holding that construction of enclosed tennis court on portion of nonconforming country club was natural expansion of country club activity
How later courts described this case
- holding that construction of enclosed tennis court on portion of nonconforming country club was natural expansion of country club activity
- “Structures may be erected on open land previously devoted to a nonconforming use, as of right.” “However, the erection of structures upon land not previously so used, may only be accomplished by way of variance, the requisites of which are hardship to the owner and absence of detriment to the public interest.”
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Judge Crumlish, Jr. :
I am in agreement with and join in the opinion of Judge Kramer. However, I would further hold that, even if the ten percent restriction on expansion were to be upheld generally, this limitation is unconstitutional as applied to appellees.
In Schiller-Pfeiffer, Inc. v. Upper Southampton Township Bd. of Adj., 1 Pa. Commonwealth Ct. 588 , *141 276 A. 2d 334 (1971), while agreeing to the denial of expansion, I set forth in my concurring opinion what I believe to be the issues controlling expansion of nonconforming uses beyond limitations permitted by zoning ordinances: “The right to expand nonconforming uses to meet natural business expansion is necessary to protect the original property interests in the tract. Hanna v. Board of Adjustment, 408 Pa. 306 , 183 A. 2d 539 (1962). This does not mean, however, that municipalities must allow expansion or enlargement of a business to the fullest extent that the tract will hold . . . [Schiller-Pfeiffer] has not shown that to limit expan: sion to 50% would so jeopardize the entire operation of Schiller-Pfeiffer so as to threaten its property interests, i.e., the existence of its plant. Neither has it shown that the remaining portion of its tract. is so small or irregular so as to prohibit its use in conform^ anee with the zoning ordinance. Absent a showing that the. limitation on expansion would jeopardize the existing nonconforming use, or would prohibit any reasonable use of the remaining land, I cannot hold the limitation unconstitutional as applied.” 1 Pa. Commonwealth Ct. at page 596 .
In the case before us, the appellant has demonstrated the existence of both of the above requirements. The area over which he desires to expand cannot feasibly be used for a residential dwelling after the permitted ten percent increase is constructed. The appellant is merely requésting an extension to the rear of his building which would still conform to all set back and yard requirements. In addition, there is testimony, tó the effect that appellant’s existing úse has outgrown his structure and can no longer operate effectively within its present confines, even with the permitted increase. To refuse the expansion requested by this appellant would result in both the confiscation of Ms nonconforming use and the forced nonuse of his remaining *142 property without due process of law. Therefore, in this case the denial of the request because of the ten percent restriction in the zoning ordinance is an unconstitutional application of that limitation. I would affirm the order of the court below.