Appeal of Horsham Township

520 A.2d 1226, 103 Pa. Commw. 508, 1987 Pa. Commw. LEXIS 1914
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 5, 1987
DocketAppeal, No. 2909 C. D. 1985
StatusPublished
Cited by4 cases

This text of 520 A.2d 1226 (Appeal of Horsham Township) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Horsham Township, 520 A.2d 1226, 103 Pa. Commw. 508, 1987 Pa. Commw. LEXIS 1914 (Pa. Ct. App. 1987).

Opinion

Opinion by Judge Craig,

Horsham Township appeals an order of the Court of Common Pleas of Montgomery County, which affirmed the order of the Zoning Hearing Board of Horsham Township, granting applicant Patch Up, Inc., a variance to expand its existing structure.

The applicant owns and operates, along with Nam-corp, Inc., its lessee, a tavern, which it terms a “stopless go-go bar,” featuring live entertainment. The structure, which predates the townships current zoning ordinance, is located in an area of Horsham Township now zoned 1-2, and does not conform to the ordinances use or dimensional requirements.1

The applicant seeks to expand its existing structure by 24.8% in order to increase the taverns seating capacity. However, the expansion would exacerbate the present dimensional nonconformities; in particular, as [511]*511proposed, the expanded structure would come within four feet and seven inches of the applicant’s sideyard property line on the northern side.

Because the applicant did not, by cross-appeal, presently address its entitlement to expand as a matter of right by reason of an increase in trade, we do not address that issue, except to note that the trial court properly concluded that the right of nonconforming use expansion is not absolute, and that the property owner of a nonconforming use may expand beyond ordinance dimensional limitations only by obtaining a variance.2 Jenkintown Towing Co. v. Zoning Hearing Board of Upper Moreland Township, 67 Pa. Commonwealth Ct. 183, 446 A.2d 716 (1982).

In order to establish entitlement to a variance for that purpose, the applicant has the burden of meeting each of the criteria set forth in section 912 of the Pennsylvania Municipalities Planning Code (MFC).3 Hager v. Manheim Township, 23 Pa. Commonwealth Ct. 361, 352 A.2d 248 (1976).

In Jenkintown, this court summarized those criteria. (1) [T]he property must possess unique physical circumstances; (2) those circumstances, in combination with the regulations, must cause unnec[512]*512essary hardship — an unreasonable inhibition of usefulness of the property; (3) the hardship must not be self-inflicted; (4) the granting of a variance must not have an adverse impact on the health, safety and welfare of the general public; and (5) the variance sought must be the minimum variance that will afford relief.

67 Pa. Commonwealth Ct. at 190, 446 A.2d at 720.

Therefore, beyond the point at which nonconforming use expansion encounters dimensional barriers applicable in the district, the right of the nonconforming use to expand, and the entitlement of the nonconforming use to a variance to expand involve the same analysis.

In Jenkintown, this court stated:
[I]n studying the proper judicial balance between the interests of a nonconforming business use and the municipal power reasonably to restrict its expansion, we perceive the same distinction as that which has been well expressed in Ryan, Pennsylvania Zoning Law and Practice, §7.4.5 (1981), as follows:
‘[A]ny protection of the expansion right must relate to a protection of the preexisting use itself. Certain types of modernization or expansion are necessary to the survival of a commercial or industrial enterprise. Where the permission which the owner seeks falls in this category, protection of the nonconforming use itself requires that the right of expansion be recognized in the absence of evidence of a compelling injury to the public interest. At the other extreme, some forms of expansion which have been permitted by the courts clearly are not essential either to preserve the use as a viable entity or to accommodate growth. . . . Expansion of this type probably is subject to regulation or prohibition by ordinance.
[513]*513The 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. Probably the correct line is a quantitative one which would allow a municipality to restrict the growth of a nonconforming use to a percentage of the original use reasonably calculated to protect the community. . . .’

67 Pa. Commonwealth Ct. at 194-95, 446 A.2d at 721-22 (citation omitted).

With reference to Mr. Ryans third criterion, which suggests a quantitative restriction upon the nonconforming uses right to expand, the present Horsham ordinance allows expansion up to a 25% increase of building area, but adds that:

[A]ny structure alteration, extension or addition shall conform with all the height, area, width, yard and coverage requirements for the District in which it is located.

Horsham Township Zoning Ordinance of 1969, as amended, art. XXIV, §2405.

The applicants proposed expansion of 24.8% is within the permitted 25%, but, as the zoning hearing board found, the applicants plan does not conform to the setback requirements in an 1-2 district. Thus, the proposal indeed requires a variance.

In Jenkintown, we set forth the standard which such an applicant must meet to demonstrate entitlement to a variance:

[514]*514[W]here the application to expand feces sideyard limits generally applicable and also a percentage limitation directed at nonconforming use expansion in particular, 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.

67 Pa. Commonwealth Ct. at 195, 446 A.2d at 722.

Therefore, we face the following pivotal question: Is the proposed expansion of the first variety suggested by Ryan, an expansion or modernization necessary for survival, as to which the right to expand must be accommodated by a variance subject only to injury to the public, or is it of the third variety, expansion only for business growth, not for survival, and therefore subject to quantitative limits and not entitled to a variance to transcend them? (Clearly, this proposal is not of the second variety, a nonconforming use expansion not encountering any ordinance dimensional limits.)

The zoning hearing board made the following findings:

12. The proposed dimensional variance sought is not harmful to the health, safety and welfare of the community.
13. The premises is subject to an unnecessary hardship in that the setback requirements, coupled with the location of the existing structure effectively bar any expansion. This impact is created by the present zoning classification.

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Related

Matter of Larsen
616 A.2d 529 (Supreme Court of Pennsylvania, 1992)
Namcorp, Inc. v. Zoning Hearing Board
558 A.2d 898 (Commonwealth Court of Pennsylvania, 1989)
Ralph & Joanne's, Inc. v. Neshannock Township Zoning Hearing Board
550 A.2d 586 (Commonwealth Court of Pennsylvania, 1988)

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Bluebook (online)
520 A.2d 1226, 103 Pa. Commw. 508, 1987 Pa. Commw. LEXIS 1914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-horsham-township-pacommwct-1987.