Opinion

Bellosi Et Ux. v. Zhb, Clifton Hb

  • 96 Pa. Commw. 83
  • 506 A.2d 997
  • 1986 Pa. Commw. LEXIS 2016
Court
Commonwealth Court of Pennsylvania
Filed
Mar 21, 1986
Status
Published
Author
Kalish
On the bench
MacPhail, Colins, Kalish, Doyle
Cited by
9 cases
Authority
More cited than 9.6%

The opinion

Dissenting Opinion by

Senior Judge Kalish:

I respectfully dissent.

At issue here is a nonconforming business which needs to expand because of business increases. Zoning restrictions prohibit the expansion; thus, the applicant seeks a variance. If a variance is necessary to keep the business viably competitive, then there is a sufficient hardship and a business necessity to warrant the granting of a variance. The expansion need not be necessary for the business’ survival. In Jenkintown Towing Service v. Zoning Hearing Board, 67 Pa. Commonwealth Ct. 183 , 446 A.2d 716 (1982), this court, in discussing ex *91 pansion to accommodate growth, quoted Ryan, Pennsylvania Zoning Law and Practice, §7.4.5 (1981):

The more difficult and more usual case involves expansion which is not essential to a continuation of the business but is needed to provide for its normal growth. There is no general principle which allows a growing business to expand at the expense of the requirements of the zoning ordinance. ... [A] rule which would prevent any increase in nonconforming businesses would place these at a competitive disadvantage.

Id. at 194-195, 446 A.2d at 722 (emphasis added).

Thereafter, in Jenkintown, this court concluded that “entitlement to a variance for expansion beyond those restrictions must be based upon a showing that the proposal involves a modernization or other revision essential to the continued viability of the business as distinguished from merely ‘taking advantage of the normal increase’ of the business.” Id. at 195 , 446 A.2d at 722 .

I would conclude from the preceding that taking advantage of the normal increase of the business, per se, would be insufficient to constitute a hardship. However, taking advantage of this normal increase in order to preserve the business’ viability, not as a going business, but rather as a competitor, would be sufficient to constitute a hardship.

Here, the trial court concluded that this expansion was necessary “to keep the business competitive and viable.” Bellosi v. Zoning Hearing Board of Clifton Heights Borough (No. 83-9966, filed November 28, 1984), slip op. at 7. I believe this is the correct standard and if supported by substantial evidence should be affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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