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 Manderino:
There is a difference between the expansion of a structure and the expansion of a use. The Angelones wish to expand their existing structure. There is nothing in the record to indicate that the existing structure is a nonconforming structure so far as the requirements of the zoning district are concerned. The addition which the Angelones wish to make to their existing structure in order to expand the nonconforming use cannot be prevented unless the addition would be detrimental to the public welfare, safety and health. In Silver v. Zoning Board of Adjustment, 435 Pa. 99 , 255 A. 2d 506 (1969), the Court reaffirmed the principle permitting the natural expansion of a nonconforming use as enunciated in Gilfillan’s Permit, 291 Pa. 358 , 140 A. 136 (1927). In that case it was specifically stated that an owner could not be prevented from making additions to existing structures unless the addition would in some way be detrimental to the public welfare, safety and health.
The record in this case contains no findings or conclusions that the expanded structure would violate any of the requirements of the present zoning law for the district. Without such a finding it cannot be said that the new structure (the old portion and the new addition) would be a nonconforming structure. Thus, the Angelones would certainly be permitted, so far as this record indicates, to build the addition which they want to build, except for only one fact — the use in the new structure.
*143 The only reason given why the Angelones would not be permitted to expand the use in the new structure when it is completed is that the Philadelphia Zoning Ordinance states that a nonconforming use cannot be expanded beyond ten percent of the original existing nonconforming use. A nonconforming use is not the same as a nonconforming structure. Generally, 'however, there is no way to measure the expansion or contraction of a nonconforming use without relating it some way to a physical structure. Uses, whether conforming or nonconforming, do not float in midair. Thus, the Philadelphia Zoning Ordinance has attempted to control the expansion of a nonconforming use by stating that the permitted ten percent expansion is to be measured by the floor area devoted to the nonconforming use.
As I stated in my dissenting opinions in Schiller-Pfeiffer, Inc. v. Upper Southampton Township Board of Adjustment, 1 Pa. Commonwealth Ct. 588 , 276 A. 2d 334 (1971) and Torak et al. v. Board of Adjustment of Upper Merion Township, 2 Pa. Commonwealth Ct. 48 , 277 A. 2d 521 (1971), a blanket ten percent expansion on nonconforming uses is arbitrary and bears no relationship to the health, safety or welfare of the surrounding area.
If the new structure would not be in violation of any of the requirements of an E-9 area, the Angelones cannot be prevented from expanding the structure. They also cannot be prevented from expanding the use by devoting more floor area to the nonconforming use simply because of an arbitrary ten percent limitation existing in the ordinance on expansions of nonconforming uses.
Any other interpretation would mean that the structure which the Angelones currently own could be expanded by an addition so long as the use was conforming. This would mean that whatever interference *144 there might be with the air, light or vision of neighbors would be permitted if there were one use within the structure but would not be permitted if there were another use within the structure. This makes no sense at all — at least not to adjoining neighbors.
If the Angelones were asking to expand an existing structure which would in some way violate the requirements of an R-9 district as to height or width of structures, then it might be proper to consider whether or not they would qualify for a variance. No variance is needed if the expanded structure would conform in all respects to the requirements of the R-9 area. They would then be entitled to a natural expansion of their nonconforming use within the new structure which would be a conforming structure. I would remand this case for a determination as to whether or not the new structure (.the old structure and the proposed new addition) would in any way be in violation of the requirements for structures in an R-9 area.