denying continuance of nonconforming use and stating that owner was ‘essentially in the same position as any victim of eminent domain’
How later courts described this case
- denying continuance of nonconforming use and stating that owner was ‘essentially in the same position as any victim of eminent domain’
- denying continuance of non-conforming and stating that owner was “essentially in the same position as any victim of eminent domain”
- "continuance of nonconforming use is permitted to avoid a wrong notwithstanding that the use is an obstruction to a public purpose. The balance is settled by avoiding the injury to the property owner only so long as the governmental body fails to compensate for its loss."
Written by the judges who cited it.
The opinion
FLAHERTY, Justice,
dissenting.
I dissent. Prior to making a conveyance in lieu of condemnation, appellant maintained as a pre-existing non-conforming use the bungalows in question, upon the same forty acre tract of land as he now seeks to maintain them. Appellant has not sought to move the bungalows to another tract of land, and, indeed, the structures themselves are the very same ones that have at all relevant times been upon the forty acre tract. Appellant does not even seek to expand the non-conforming use, by enlarging the number or size of the bungalows. Rather, appellant seeks only to continue the very same use that has always been allowed as a non-conforming use upon the tract in question, by simply relocating the situs of the use upon the same tract. To deny the continued use of the land in this manner is to too narrowly construe the landowner’s constitutional right to maintain land uses that existed prior to enactment of the zoning ordinance. I would, therefore, reverse the order of the Commonwealth Court, and order that the zoning permit in question be issued.
LARSEN and PAPADAKOS, JJ., join this dissenting opinion.