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
*189 LARSEN, Justice,
dissenting.
I join in the Dissenting Opinion of Mr. Justice Flaherty.
This Court has stated that
where a zoning ordinance, provides in general terms, for the continuance of a lawful existing use, it imposes no restraint upon broadening the scope of the existing use, even though the use, as exercised at the time the ordinance was enacted, did not utilize the entire tract of land. In such a case ..., “The prohibition of the Ordinance is directed to new uses; it imposes no restraint upon broadening the scope of the existing use.”
Eitnier v. Kreitz Corporation, 404 Pa. 406, 411-12 , 172 A.2d 320, 323 (1961).
I would hold that appellant’s current use of his land simply constitutes a broadening of the scope of the existing use. Appellant now uses his land in the same way he has always used it. The only change of circumstances in this case is that the portion of appellant’s land now devoted to single-family bungalows is different from that portion of his land which was originally devoted to the bungalows; however, the use itself — the maintenance of one-family residences on appellant’s property — has remained the same.
I would also add that I think the majority speaks too broadly when it concludes that “the use must not enlarge beyond its natural expectations, nor can it be moved from its original setting.” At 1106. The Bern Township Zoning Ordinance itself provides for an enlargement or increase of a nonconforming use by up to 50% upon land which was not even owned at the time the use became nonconforming. Yet the majority has concluded that a property owner may not even move — not enlarge or increase, but simply move— his nonconforming use from one portion of his land to another portion of the same property.
I would reverse the order of the Commonwealth Court.