# Bellosi Et Ux. v. Zhb, Clifton Hb

> Commonwealth Court of Pennsylvania · March 21, 1986 · 96 Pa. Commw. 83

URL: https://www.frixlaw.com/law-library/cases/9728050

## Case

- **Full name:** Frank B. Bellosi and Sandy J. Bellosi, His Wife, Appellants v. the Zoning Hearing Board of Clifton Heights Borough and John Cacciola and Norma Cacciola, His Wife, Appellees
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 21, 1986
- **Citations:** 96 Pa. Commw. 83; 506 A.2d 997; 1986 Pa. Commw. LEXIS 2016
- **Precedential status:** Published
- **Opinion:** Dissent by Kalish
- **Judges:** MacPhail, Colins, Kalish, Doyle
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728050

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728050. Public record. Not legal advice.