Good Fences and Your Neighbors. Boundary Disputes in Pennsylvania

          Robert Frost’s poem says “good fences make good neighbors”, but what if the fence is in the wrong place?  Is the fence on the actual border or not?  In our litigious and increasing socially isolated world, where neighbors sadly often don’t get along, what do you do if you review your deed and realize that your neighbor has been possessing property as long as you can remember that belongs to you according to your legal description that you just read.  This is property that you are paying taxes upon.  Worse, what if your neighbor approaches you after he obtains a fancy new survey that states that your garage, built twenty years ago, is really on his property and he wants you to tear it down immediately or pay him exorbitant rent?  What can you do and what issues do you need to consider? 

  • Legal Description Nightmares.  While the precise dimensions of city lots are normally, (although not always) reasonably well established, trying to determine the precise dimensions of a rural parcel can often be a nightmare.  In rural properties, for example, the description may say, “600 feet from Miller’s Oak tree” with nary an Oak in sight or “100 feet south of the large rock” with no rock.
  • Family Compound Confusion.  Also, in rural properties, often a portion is subdivided and given to children, but the land is used practically as one large parcel by the whole family as a quasi-family compound and the borders are practically blurred or non-existent, adding confusion for subsequent non-family buyers.
  • Survey and Description vs. History.  The question we are asking is, what if the practical and historical use of the property between neighbors and parcels is contrary to the legal description or survey result?  What controls?  While a good survey and a clear legal description are certainly the best evidence to show you own the property under dispute, can the survey be defeated based upon the historical use of the property?  The surprising answer sometimes is yes.  If there is ambiguity in the ownership of a disputed portion of property the Pennsylvania legal doctrines of adverse possession, consentable boundaries, consentable lines, and/or acquiescence, may apply and vest ownership, title, and possession in the party that the “survey says” is not the record owner.
  • How Does this Work?  Although the precise elements of these doctrines vary by circumstances, the gist of them is that if the neighbors (or the prior landowners) historically agreed or permitted to exist a common border for a long period of time, despite it not being the actual border, the law may vest title in the neighbor who is not the record owner and affirm the factual situation on the ground.  The party trying to contradict the survey or legal description must prove that their acts and declarations (and those of their predecessors in interest in their real property) have clearly and exclusively occupied and claimed for over 21 years the land in dispute.  They also must prove that their neighbor, whom the survey says is the record owner, by their acts and declarations (and those of their predecessors in interest in their real property) have clearly recognized and /or acquiesced that the other party, their neighbor, is the sole owner and possessors of the land in dispute for over 21 years.  Further in most cases it must be proven that the party claiming ownership on these historical usage grounds and their predecessors in interest in their real property have actually, distinctly, continuously, uninterruptedly, exclusively, visibly, notoriously, and hostilely possessed the entire subject real property, including disputed portion thereof, for a period of time over 21 years.  That entire litany of adjectives have distinct legal meanings and must be explored, but it the right factual circumstances, it can be proven and title can be given to the non-record title holder. 
  • Legal Procedure – Ejectment or Quiet Title?  How would one proceed under the Pennsylvania Rules of Civil Procedure with these issues?  There are complex rules on these matters, but generally speaking, in our first hypothetical, where the landowner discovers that his neighbor is possessing land that is actually his, he would bring an action in Ejectment because the neighbor is in possession and he now wants possession.  In the second hypothetical, where the landowner is approached by the neighbor that his garage is on his property, the landowner would bring an action in Quiet Title, as he is in possession.  This would proactively force the neighbor to bring his own action in Ejectment to remove him from the property within a certain period of time or be forever barred from asserting any claim in the property.  
  • More Details.  This is just the forest, not the trees, in boundary dispute issues.  Feel free to call our office to schedule a free consultation to discuss these issues in more depth. Have a lovely weekend.  Dominus Vobiscum!

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All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

 

Fracking and Zoning – Pig in the Parlor instead of the Barnyard?

The post is a follow-up to last week’s post regarding the recent Supreme Court decision that, among other things, arguably gave citizens a private cause of action against their local municipalities for failing to take into account their Pennsylvania constitutional rights to clean air and water.  The decision also stated that fracking is clearly an industrial use and rejected the Act 13 provision that tried to force local municipalities to permit fracking in all Zoning Districts, including residential areas.

The case left open many questions, however.  Must fracking be limited to industrial zones only?  Can it be permitted in agricultural or commercial zones with conditions, as it is now in most places?  If a local municipality wants to permit fracking in a residential area with conditions, can it?  What about “spot zoning”?

In attempting to answer these question, its helpful to look to the Commonwealth Court’s earlier decision in the same case that the Supreme Court affirmed, but focused on the environmental rationale.  What about the property rights of individuals in a residential area who bought their property never desiring to live in the midst of heavy industry?

What follows is an excellent analysis by the Commonwealth Court of the relationship between zoning and fracking by Judge Pellegrini in Robinson Twp. v. Commonwealth, 52 A.3d 463.  Enjoy:

 

While recognizing that their power to regulate zoning is only by delegation of the General Assembly, the municipalities contend that Act 13 is unconstitutional because it forces municipalities to enact zoning ordinances in conformance with 58 Pa. C.S. §3304 allowing, among other things,  mining and gas operations in all zoning districts which are incompatible with the municipalities’ comprehensive plans that denominates different zoning districts, making zoning irrational. Simply put, they contend that they could not constitutionally enact a zoning ordinance if they wanted to, and it does not make an ordinance any less infirm because the General Assembly required it to be passed.

Zoning is an extension of the concept of a public nuisance which protects property owners from activities that interfere with the use and enjoyment of their property. In City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33, 115 S. Ct. 1776, 131 L. Ed. 2d 801 (1995), the United States Supreme Court described the purpose of zoning as follows:

Land-use restrictions designate “districts in which only compatible uses are allowed and incompatible uses are excluded.” D. Mandelker, Land Use Law § 4.16, pp. 113-114 (3d ed.1993) (hereinafter Mandelker). These restrictions typically categorize uses as single-family residential, multiple-family residential, commercial, or industrial. See, e.g., 1 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 8.01, pp. 8-2 to 8-3 (4th ed. 1995); Mandelker § 1.03, p. 4; 1 E. Yokley, Zoning Law and Practice § 7-2, p. 252 (4th ed. 1978).

Land use restrictions aim to prevent problems caused by the “pig in the parlor instead of the barnyard.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303, 4 Ohio Law Abs. 816 (1926). In particular, reserving land for single-family residences preserves the character of neighborhoods, securing “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.”Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974)see also Moore v. East Cleveland, 431 U.S. 494, 521, 97 S.Ct. 1932, 1947, 52 L.Ed.2d 531 (1977) (Burger, C.J., dissenting) (purpose of East Cleveland’s single-family zoning ordinance “is the traditional one of preserving certain areas as family residential communities”).

So there is not a “pig in the parlor instead of the barnyard,” zoning classifications contained in the zoning ordinance are based on a process of planning with public input and hearings that implement a rational plan of development. The MPC requires that every municipality adopt a comprehensive plan which, among other things, includes a land use plan on how various areas of the community are to be used. Section 301 of the MPC, 53 P.S. §10301. The municipality’s zoning ordinance implements the comprehensive plan. Section 303 of the MPC, 53 P.S. §10303.

 A typical zoning ordinance divides the municipality into districts in each of which uniform regulations are provided for the uses of buildings and land, the height of buildings, and the area or bulk of buildings and open spaces. See Section 605 of the MPC, 53 P.S. §10605. Permitted or prohibited uses of property and buildings are set forth for each zoning district, e.g., residential, commercial, and industrial. Use districts are often further sub-classified, for instance, into residential districts and then restricted to single-family houses and those in which multiple-family or apartment structures are permitted; commercial districts into central and local, or those in which light manufacturing is permitted or excluded; for heavy but non-nuisance types of industry; and nuisance or unrestricted districts.  Height regulations fix the height to which buildings or portions thereof may be carried. Bulk regulations fix the amount or percentage of the lot which may be occupied by a building or its various parts, and the extent and location of open spaces, such as building set-backs, side yards and rear yards. Zoning ordinances segregate industrial districts from residential districts, and there is segregation of the noises and odors necessarily incident to the operation of industry from those sections in which the homes are located. Out of this process, a zoning ordinance implements a comprehensive zoning scheme; each piece of property pays, in the form of reasonable regulation of its use, for the protection that the plan gives to all property lying within the boundaries of the plan.

To determine whether a zoning ordinance is unconstitutional under Article 1, §1 of the Pennsylvania Constitution and Fourteenth Amendment to the United States Constitution, a substantive due process inquiry must take place. When making that inquiry, we take into consideration the rights of all property owners subject to the zoning and the public interests sought to be protected. Quoting from Hopewell Township Board of Supervisors v. Golla, 499 Pa. 246, 255, 452 A.2d 1337, 1341-42 (1982), our Supreme Court in In re Realen Valley Forge Greenes Assocs., 576 Pa. 115, 132, 838 A.2d 718, 728 (2003), stated that:

[t]he substantive due process inquiry, involving a balancing of landowners’ rights against the public interest sought to be protected by an exercise of the police power, must accord substantial deference to the preservation of rights of property owners, within constraints of the ancient maxim of our common law, sic utere tuo ut alienum non laedas. 9 Coke 59–So use your own property as not to injure your neighbors. A property owner is obliged to utilize his property in a manner that will not harm others in the use of their property, and zoning ordinances may validly protect the interests of neighboring property owners from harm.

The Court went on to state that under that standard for zoning to be constitutional, it “must be directed toward the community as a whole, concerned with the public interest generally, and justified by a balancing of community costs and benefits. These considerations have been summarized as requiring that zoning be in conformance with a comprehensive plan for growth and development of the community.” Id. (Emphasis added).

The Commonwealth argues that Act 13 mandates that zoning regulations be rationally related to its objective: (1) optimal development of oil and gas resources in the Commonwealth consistent with the protection of the health, safety, environment and property of Pennsylvania citizens; (2) protecting the safety of personnel and facilities employed in coal mining or exploration, development, storage and production of natural gas or oil; (3) protecting the safety and property rights of persons residing in areas where mining, exploration, development, storage or production occurs; and (4) protecting the natural resources, environmental rights and values secured by the Constitution of Pennsylvania. 58 Pa. C.S. §3202.

However, the interests that justify the exercise the police power in the development of oil and gas operations and zoning are not the same. In Huntley & Huntley, Inc., 600 Pa. at 222-24, 964 A.2d at 864-66, our Supreme Court explained that while governmental interests involved in oil and gas development and in land-use control at times may overlap, the core interests in these legitimate governmental functions are quite distinct. The state’s interest in oil and gas development is centered primarily on the efficient production and utilization of the natural resources in the state. Zoning, on the other hand, is to foster the orderly development and use of land in a manner consistent with local demographic and environmental concerns. It then stated, as compared to the state interest in oil and gas exploration:

 [T]he purposes of zoning controls are both broader and narrower in scope. They are narrower because they ordinarily do not relate to matters of statewide concern, but pertain only to the specific attributes and developmental objectives of the locality in question. However, they are broader in terms of subject matter, as they deal with all potential land uses and generally incorporate an overall statement of community development objectives that is not limited solely to energy development. See 53 P.S. § 10606see also id., § 10603(b) (reflecting that, under the MPC, zoning ordinances are permitted to restrict or regulate such things as the structures built upon land and watercourses and the density of the population in different areas). See generally Tammy Hinshaw & Jaqualin Peterson, 7 Summ. Pa. Jur.2d Property § 24:12 (“A zoning ordinance reflects a legislative judgment as to how land within a municipality should be utilized and where the lines of demarcation between the several use zones should be drawn.”). More to the point, the intent underlying the Borough’s ordinance in the present case includes serving police power objectives relating to the safety and welfare of its citizens, encouraging the most appropriate use of land throughout the borough, conserving the value of property, minimizing overcrowding and traffic congestion, and providing adequate open spaces. See Ordinance § 205-2(A).

Id. at 224, 964 A.2d at 865

In this case the reasons set forth in 58 Pa. C.S. §3202 are sufficient to have the state exercise its police powers to promote the exploitation of oil and gas resources. This is the overarching purpose of Act 13 which becomes even more evident by 58 Pa. C.S. §3231 which authorizes the taking of property for oil and gas operations.

58 Pa. C.S. §3304 requires that local zoning ordinance be amended which, as Huntley & Huntley, Inc. states, involves a different exercise of police power. The public interest in zoning is in the development and use of land in a manner consistent with local demographic and environmental concerns. 58 Pa. C.S.§3304 requires zoning amendments that must be normally justified on the basis that they are in accord with the comprehensive plan, not to promote oil and gas operations that are incompatible with the uses by people who have made investment decisions regarding businesses and homes on the assurance that the zoning district would be developed in accordance with comprehensive plan and would only allow compatible uses. If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and fireworks plants in residential zones for a variety of police power reasons advancing those interests in their development. It would allow the proverbial “pig in the parlor instead of the barnyard.”

In this case, by requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa. C.S §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise.  Succinctly, 58 Pa. C.S. §3304 is a requirement that zoning ordinances be amended in violation of the basic precept that “Land-use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.” City of Edmonds, 514 U.S. at 732 (internal quotation omitted). If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done.

Because the changes required by 58 Pa. C.S. §3304 do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.

All content on this website is intended for general information only, and should not be construed as legal advice, tax advice, or financial advice applicable to your particular situation.  No attorney-client relationship is created unless and until a binding written representation agreement is signed by both you and our office. Before taking any action based on this website, you should consider your personal situation and seek professional advice.

 

Implications of the Pa Supreme Court’s Broad and Sweeping Decision on Fracking in Robinson v. Commonwealth

In delving into Pa Act 13 and Shale Gas fracking and development for my case load and my current zoning work, this 200 page ROBINSON TOWNSHIP v. COMMONWEALTH opinion from December is the most fascinating and powerful Pa Supreme Court Case, maybe ever. The decision ruled that certain parts of the Act violated the Pennsylvania Constitution.  The opinion then; (1) adds incredible “meat” to the bones of the 1970′s Environment Rights Amendment to the Pa Constitution (Pa is one of only three states to have such an amendment, but it was thought to be of very limited effect); (2) Makes both state and local government officials “trustees” of the environment for future generations; (3) makes state-wide zoning without local approval nearly impossible; (4) constitutionalizes local zoning making the later permitting of more intense uses in restrictive areas nearly impossible; (5) may just give private persons a “constitutional tort” claim allowing them to sue their local government officials for any act or omission that may have an environmental impact in violation of their constitutional rights to a clean environment under the Pa constitution and;  (6) gives potential plaintiffs suing a municipality plenty of ammunition to argue that this activity should be limited to Industrial Zones only, despite the abundance of current drilling going on throughout other more restrictive zones of many municipalities, setting up huge potential conflicts with private property interests under the takings clause of the constitution.  WOW. This case will quite literally fuel at least a decade of litigation for us lawyers to sort out and interpret the scope of Justice Castille’s decision.

“Grandfathered In”- Legal Non-Conforming Uses in Pennsylvania

Introduction

In the early 1940’s, in order to plan their future land development and attempt to improve the quality of life in their communities, the City of Pittsburgh and other local municipalities began adopting comprehensive zoning ordinances, whereby the local municipal governing bodies divided and compartmentalized their municipalities into distinct districts or zones whereby only certain uses of land were permitted in each zone.[1]  The enactment of a comprehensive zoning plan, though, can create a problem for an already substantially developed area, as the City of Pittsburgh was at the time (in 1940 the City of Pittsburgh was home to 550,322 people[2] ).  As stated by land-use scholar Daniel R. Mandelker, “to superimpose a land-use map upon an established urban area must inevitably result in creating large numbers of non-conforming uses”.[3]

A non-conforming use is “any activity or structure which came into existence prior to the zoning restriction involved and violates that restriction”.[4]  However, a non-conforming use can also arise when, “a use or building came into existence under a permissive zoning ordinance and now finds itself in violation of a restrictive amendment to that ordinance” at a much later date.[5]  A landowner who claims that her particular property is a valid, legal non-conforming use, “seeks permission to violate a zoning restriction” based on the “simple proposition that her activity predate the zoning restrictions and is exempted for that reason”.[6]

I will discuss the core aspects of non-conforming use law in the Commonwealth of Pennsylvania with an emphasis on examining and exploring practical concepts that often come up in legal practice.[7]  These core areas are; (1) the constitutional rationale for protecting non-conforming uses; (2) the establishment of a legal non-conforming use; (3) the amortization of non-conforming uses; and (4) the abandonment or termination of non-conforming uses by the landowner.  I will attempt to explain these core concepts through a detailed analysis of the cases that established them and the Pennsylvania courts further interpretation of them through the most current cases.  The goal is to provide a practical, real world, understanding of how these concepts apply to common fact patterns in the world of zoning law.[8]

Constitutional Rationale for the Protection of Non Conforming Uses

The Pennsylvania Legislature has specifically defined a non-conforming use as, “a use, whether of land or of structure, which does not comply with the applicable use provisions of a zoning ordinance or amendment thereto, where such a use was lawfully in existence before the enactment of such ordinance or amendment, or before the application of such ordinance or amendment to its location by reason of annexation”.[9]  As long as the  non-conforming use was in existence prior to the enactment of the applicable zoning ordinance, the landowner gets a special dispensation from complying with the zoning ordinance and can continue his status quo use and operation of his land.[10]   The Pennsylvania Supreme Court has explained this, stating, “the adoption of a zoning ordinance does not mandate the discontinuance of the existing use of a property affected by the ordinance, and the amendment of a zoning ordinance which re-classifies property does not mandate the discontinuance of an existing conforming use.”[11]  In either case the use of land, “simply becomes a nonconforming one which may continue”.[12]

Even though a non-conforming use is an “obstruction to a public purpose” by being in direct violation to an existing zoning ordinance and comprehensive plan, the municipality has allowed, “continuance of a nonconforming use to avoid an injury to the property owner”.[13]  The Pennsylvania Supreme Court, in Andress v. Zoning Bd. of Adjustment of City of Philadelphia, 410 Pa. 77, 188 A.2d 709 (1963), has stated:

The natural or zealous desire of many zoning boards to protect, improve and develop their community, to plan a city or a township or a community that is both practical and beautiful, and to conserve the property values as well as the “tone” of that community is commendable. But they must remember that property owners have certain rights which are ordained, protected and preserved in our Constitution and which neither zeal nor worthwhile objectives can impinge upon  or abolish.

The pre-existing nonconforming use doctrine is “premised on the concern that  retroactive enforcement of zoning, to extinguish a use that was legal at the time it came into existence, may amount to a taking without compensation”.[14]  The Pennsylvania Constitution, “recognizes the inherent and indefeasible right of our citizens to possess and protect property”.[15]  The Pennsylvania Constitution also states that, “nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured”.[16]

Land use scholar Robert S. Ryan points out that, “the protected status accorded non-conforming uses or buildings is bottomed on the belief that in many instances a retroactive enforcement of zoning would have such severe effects on the owner that it would be an impermissible “taking” without compensation”.[17]  The Pennsylvania Supreme Court has also stated that the “rule as to non-conforming uses was evolved as a conceived element of due process”.[18]  The constitutional protection afforded to non conforming uses is well stated by the Pennsylvania Supreme Court in Bachman v. Zoning Hearing Board of Bern Township Bachman v. Zoning Hearing Board of Bern Township, 508 Pa. 180, 494 A.2d 1102, (1985):

The continuance of nonconforming uses under zoning ordinances is countenanced      because it avoids the imposition of a hardship upon a property owner, and because the refusal of the continuance of a nonconforming use would be of doubtful constitutionality. Nonconforming uses, inconsistent with a basic purpose of zoning, represent conditions which should be reduced to conformity as speedily as compatible with the law and the Constitution.

The conflict in non-conforming use law is between the landowners constitutionally protected property rights and the “reasonable regulation by the government, clearly necessary to preserve the health, safety, morals, or general welfare of the people”.[19]  From the landowner’s perspective, a landowner who possess property that qualifies as a “lawful nonconforming use enjoys a vested property right thereto which may not be abrogated, unless it is a nuisance, or abandoned, or is extinguished by eminent domain”.[20]  From the municipality’s perspective, “even though zoning ordinances permit the continuation of nonconforming uses, it is the policy of the law to restrict such nonconforming uses closely and to strictly construe provisions and zoning ordinances which provide for the continuance of nonconforming uses.[21]

Establishment of a Legal Nonconforming Use

Pennsylvania has a very liberal approach to permitting nonconforming uses to be legally established and protected.[22]  The earliest example of this approach is in the case of Haller Baking Company’s Appeal, in which the court broadly defined what a “use existing before the enactment of the ordinance” was.[23]  In Haller, the landowner erected a stable on his property before the enactment of the applicable zoning ordinance, but used the stable only occasionally.[24]  The newly enacted ordinance prohibited the stable on the landowner’s property.[25]  The lower court held that, “their was no real, substantial use nor regularity of use” sufficient to characterize the stable as an existing use before the enactment of the ordinance.[26]

The Supreme Court reversed the lower court, stating that the law generally, does not require, “the court to speculate as to the number of acts or business transactions necessary to constitute an existing use”.[27]  The court defined existing use as, “the utilization of the premises so that they may be known in the neighborhood as being employed for a particular purpose”.[28]

Some limits on this liberal approach exist.  First, a landowner’s accessory use of land cannot be the basis for the establishment of a nonconforming principal use.[29]  A clear example of this doctrine exists in Ashline v Bristol Township Board of Adjustment.[30]  In Ashline, the landowner owned a residentially zoned lot.[31]  An autoshop located across the street was storing junked cars on the landowner’s lot and had done so before the residential ordinance was passed.[32]  The landowner wanted to start charging the autoshop for the storage, so he applied for a permit to operate his lot as an automobile graveyard, claiming that the lot was a preexisting, nonconforming use.[33]  The Supreme Court ruled against the landowner, stating that, “the manifestly casual use of a property by the owner thereof, inconsistent with the terms of the ordinance and prior to the effective date thereof”, will not “commit the premises to a nonconforming use status”.[34]

Another limit on the liberal allowance of nonconforming uses is that the landowner’s subjective intent of what the existing use of his land is before the enactment of the applicable code is irrelevant, except as manifested in physical acts and objective evidence.[35]  This restriction was first enunciated by the Pennsylvania Supreme Court in, Cook v Bensalem Township Zoning Board of Adjustment.[36]  In Cook, the landowner purchased a large, two acre tract of land in 1952.[37]  In early 1954, he built a dwelling house on the land.[38]  In late 1954, the local municipality enacted a zoning ordinance that classified his land as residential.[39]  The landowner then began moving his business equipment, like large trucks, and backhoes, onto his residential lot, “contending that he had always intended to use the property in connection with his business”.[40]

The Supreme Court ruled that the landowner did not have a pre-existing nonconforming business use and that his land was subject to the residential use restrictions.[41]  The court stated that “advanced as may be the science of interpretation of psychic phenomenon, the courts cannot be expected, nor are that equipped, to look into a person’s mind to ascertain his thoughts and intentions”.[42]  The court laid down the rule that, “only physical evidence, manifested in the most tangible and palpable form, can bring about the application of nonconforming clauses in a zoning ordinance” because “before a supposed nonconforming use may be protected, it must exist somewhere outside the property owners mind.”[43]

The Pennsylvania courts insist that, “the existence of a nonconforming use and its dimensions, therefore, must be demonstrated by objective, physical evidence”.[44]  What physical evidence may the landowner use to demonstrate that his use pre-dated the applicable zoning ordinance?  For demonstration purposes, assume hypothetically that a landowner owns an old Victorian mansion that he has turned into a triplex (a house divided into three separate apartments).[45]  A current trend in housing is for people to purchase these converted mansions and revert them back into single-family homes.[46]  A new zoning ordinance is enacted, turning the area where the triplex is located into an R-1 residential zone that permits only one dwelling unit in each home.  The landowner now finds himself out of compliance with the code.

The landowner must demonstrate that his use is a pre-existing, non-conforming use to continue operating his triplex.[47]  In petitioning the local zoning board for nonconforming use status the property owner must show with “physical evidence manifested in the most tangible and palpable form”[48] that the property was used as a triplex before the enactment of the applicable zoning code.  For example, the landowner can do this with photographs or other admissible evidence[49] showing that the house has three separate entrances, three separate mail boxes, or separate utility bills dated before the code was enacted, showing that the service was divided among three tenants before the code.[50]  The landowner could also offer signed leases for rental periods taking place before the enactment of the zoning code and affidavits from tenants or live tenant testimony to prove that the property owner’s use predated the code.  If the landowner used all this evidence it is likely that his use would be deemed nonconforming.

It must be noted, though, that, “the burden of proving the extent or existence of a nonconforming use rests on the property owner who would claim the benefit of the rights accorded property with that status”.[51]  The case of Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, provides a good example of a landowner not meeting this burden and a good example of the procedural hierarchy of a non-conforming use case.[52] 

 In Collier, the Collier Stone Company applied for a permit to manufacture concrete, which it had already manufactured to some extent.[53]  The permit was denied by the township’s zoning officers and “Collier Stone appealed to the Zoning Hearing Board (Z.H.B.), arguing that it has been manufacturing concrete products since 1948 and thus, the manufacturing constitutes a legal nonconforming use because the township did not enact a zoning ordinance prohibiting such use until 1952”.[54]  In front of the Z.H.B., three company executives testified that the company had manufactured concrete since 1948 and offered purchase orders for concrete from as early as 1970 (but not as early as 1948) to prove this.[55]

   In opposition to the company, several neighboring property owners testified before the Z.H.B that no concrete “manufacturing activity occurred on Collier Stone’s property prior to 1985”, and one owner “entered into evidence a document prepared by Collier Stone that states, “Collier Stone has manufactured concrete products from 1958 to the present”, ( first manufacturing six years after the code was enacted, not before the code).[56]

The Z.H.B. ruled that Collier Stone failed to prove that it manufactured concrete prior to the enactment of the zoning code because; (1) “neighboring residents credibly testifed that no manufacturing occurred on Collier Stone’s property prior to 1985”, (2) Collier Stone was unable to produce, “any documentation suggesting that concrete was manufactured as early as 1948”, and (3) “Collier Stone’s own document states that they began manufacturing concrete products in 1958”.[57]

The Court of Common Pleas reversed the Z.H.B, stating that “to demonstrate a use is not apparent to its neighbors is not the same as establishing that it does not exist”.[58]

The Pennsylvania Commonwealth Court reversed the Court of Common Pleas and upheld the Z.H.B. decision that Collier Stone did not carry its burden and prove its concrete operations were a non-conforming use.[59]  The court relied on, “two well-established principals of law, specifically; (1) “the burden of proving the existence of a non-conforming use rests with the landowner asserting a non-conforming use”, and (2) “where the trial court receives no additional evidence, the Z.H.B’s decision must be affirmed unless there has been an error of law or an abuse of discretion”.[60]

The Commonwealth Court held that the lower court had “overstepped its bounds” and that pointed out that, “matters involving the weight and credibility of testimony are within the discretion of the zoning board.[61]  The court reasoned that Collier’s 1970 purchase order evidence has “little probative value” in determining whether Collier manufactured concrete prior to the 1952 code.[62]

Some municipalities give prudent non-conforming landowners an option to avoid many of the above problems and gain long term certainty that their use will be permitted.  These municipalities have provisions and procedures whereby a landowner can apply for and obtain a certificate from the municipality, in advance of any challenge or issue, verifying that their particular land use is a pre-existing, non-conforming use, in existence prior to the enactment of the applicable zoning code.[63]

Amortization of Non-Conforming Uses

What actions can a municipality legally take to eliminate non-conforming uses and more effectively implement their comprehensive zoning plan?  One method attempted by municipalities is to implement amortization provisions into their zoning ordinances.[64]  Generally, these provisions gave a landowner who operated a non-conforming use that existed at the time of the enactment of the ordinance, a specified a period of time, such as six months or one year, to come into compliance with the zoning ordinance or the landowner was not permitted to continue the use.[65]  Over one-half of the states permit amortization of non-conforming uses a constitutional exercise of the state’s police power.[66]

The Pennsylvania Commonwealth Court, in Sullivan v Zoning Board of Adjustment, “determined that provisions for the amortization of non-conforming uses are constitutional exercises of the police power so long as they are reasonable.”[67]  In determining whether the amortization provisions were reasonable, the Sullivan court stated that the true test is whether the, “beneficial effects upon the community that would result from the discontinuance of the use can be seen to more than offset the losses to the affected landowner”.[68]

The amortization issue finally came before the Pennsylvania Supreme Court in 1990 in the case of PA Northwestern Distributors, Inc. v. Zoning Hearing Board of the Township of Moon.  In PA Northwestern Distributors, an adult book store, after obtaining all the necessary permits, opened for business in Moon Township on May 4, 1985.[69]  On May 23, 1985, the Moon Township Board of Supervisors amended their zoning ordinance imposing extensive restrictions on the location and operation of “adult commercial enterprises” including that no such business can operate within one thousand feet of a residential area and five hundred feet of a school or church.[70]  Additionally, Moon Township’s existing zoning ordinance contained an amortization provision stating that, “any commercial enterprise which would constitute a pre-existing use and which would be in conflict with the requirements set forth in this amendment to the Moon Township Zoning Ordinance has 90 days from the date that the ordinance becomes effective to come into compliance with this ordinance”.[71]

The adult book store could not meet the newly enacted restrictions, as it was located “closer to a school, a church, and a residential district than permitted” under the ordinance.[72]  The adult book store owner was notified by the zoning officer that he was out of compliance and he proceeded to challenge the validity of the amortization provision set forth in the ordinance.[73]

The Pennsylvania Supreme Court ruled in favor of the adult book store owner and held that “Sullivan is not the correct statement of the law in this Commonwealth”.[74]  The court stated that, “the effect of the amortization provision herein is to deprive appellant of the lawful use of his property, in that ordinance forces appellant to cease using its property as an adult book store within ninety days”.[75]  The court dismissed all future use and effectiveness of amortization provisions as governmental tools to eliminate non-conforming uses, holding that “zoning provisions cannot require the amortization and elimination of a lawful pre-existing nonconforming use within a certain period of time”.[76] The court reasoned that, “the effect of such a provision is to deprive a property owner of the lawful use of his or her property, amounting to a “taking,” for which just compensation must be paid to avoid violating the Pennsylvania Constitution”.[77]

Abandonment of a Legal Nonconforming Use

If a municipality cannot amortize non-conforming uses, in what ways can a non-conforming use be eliminated?  One way, is for a municipality to argue that the landowner’s non-conforming use had been abandoned by the landowner.  This occurs when, although the landowner’s use predates the code and qualifies as non-conforming, the landowner has not carried out the use for a certain period of time and the use is dormant.[78]

Recall our hypothetical landowner from the “establishment of a nonconforming use” section of this text.   This landowner owns a Victorian house that he has converted into a triplex, but the newly enacted zoning code has changed the area containing the property into a residential district in which only single-family occupied homes are permitted.  What if an abundance of new housing in the community  eliminated the market demand for his property and the triplex was vacant for a few years immediately preceding the enactment of the new zoning code.  The municipality would likely argue that even if the property owner’s land qualified as a pre-existing, nonconforming use, the property owner is not allowed to resume that use and obtain new tenants because the use has been discontinued or abandoned.

Based on these facts alone, though, Pennsylvania law would likely hold that the use as a triplex has not been abandoned and may be resumed, because there is no evidence that the landowner intended to abandon the triplex use.  One of the earliest statements of the abandonment rule and the requirement of proving “intent to abandon”, came in 1958 in the case of Upper Darby Township Appeal.[79]  In Upper Darby, a building, constructed in 1912, housed commercial offices (real estate, dentist, medical laboratory).[80]  In 1938, the building was vacant and the municipality zoned the area in which the building was located as R-1 residential.[81]  From 1939 –1944, because of a housing shortage due to World War II, the building was occupied as personal residences.[82]  In 1944, the residential occupancy period ended, and the building was re-leased for commercial office space to a steel company and medical laboratory.[83]

When the landowner applied for a permit for an expansion of the building, the township denied him, because the building had, “discontinued its use for office purposes and therefore the landowner has no right to claim a nonconforming use which has disappeared”.[84]  The Supreme Court ruled in favor of the landowner reasoning that

There is no evidence of any intention to abandon the non-conforming use.  No physical changes were made in the building, nor does it appear that its basic character was altered.  Neither does the fact that the building was used as a residence during the war years work an abandonment of the original purpose of the structure.  A detailed railroad car which is temporarily occupied by wayfarers as a sleeping place does not make it a dwelling.

Upper Darby Township Appeal, 391 Pa. 347, 138 A.2d 99, (1958).  The Pennsylvania Supreme Court, in Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, identified a two-part test for determining whether a nonconforming use is abandoned.[85]  The owner of a nonconforming use property must both, (1) intend to abandon the nonconforming use and (2) actually abandon the nonconforming use.[86]

In Latrobe Speedway, a racetrack operator owned a large tract of land that he used as a stock car speedway between 1977 and 1982.[87]  From 1982 to 1994, though, no racing activity was conduced on the premises.[88]  During that period without operation, the owner paid property taxes under the assessment of a racetrack, did not attempt to dismantle the racetrack, grandstands, fence, light stands and out buildings, and negotiated without success with twenty-three persons for the sale or lease of the premises as a racetrack.[89]  In 1991, Unity Township enacted a zoning ordinance that designated the area that included the racetrack for agricultural use and stated that a nonconforming use that ceases operation for a period of one year or more “shall not be resumed”.[90]  In 1994, the owner leased the premises to another racetrack operator who sought to use the premises for stock car racing and applied for a “development occupancy permit for nonconforming use to operate the existing racetrack”.[91]  The permit was denied, “on the grounds that the use of the property as a race track had been abandoned”.[92]

The Supreme Court upheld the Commonwealth Court’s reversal of the denial.[93]  First, the Supreme Court stated that, “abandonment of a nonconforming use could not be shown by mere proof of failure to use the property for a certain period of time”.[94]  The court then laid out the two part test for abandonment, stating that, “intention to abandon is only one element of the burden of proof on the party asserting abandonment” and that the “second element of the burden of proof is actual abandonment of the use for the proscribed period”.[95]

The court held that where the ordinance contains a discontinuance of nonconforming use provision (like the one year provision here) and the use is discontinued for the stated period, there exists a rebutable presumption that the owner intended to abandon the use.[96]  The presumption can be rebutted by the landowner if he introduces evidence of a intent contrary to an intent to abandon the use.[97]  If such a contrary intent is demonstrated, the burden of persuasion shifts back to the party claiming abandonment (the municipality) to prove both elements (intent to abandon and actual abandonment).[98]  Where the ordinance contains no discontinuance provision, the burden of proof as to both intent to abandon and actual abandonment is on the party claiming abandonment (the municipality – here, the township).[99]

The court found in the landowners favor because their actions in seeking people to operate the property as a racetrack, paying racetrack assessed taxes and not dismantling the racetrack and grandstand rebutted any presumption of intent to abandon and when the burden shifted back to the township, the township failed to prove intent to abandon or actual abandonment by the landowner.[100]

Land use scholar Daniel R. Mandelker believes that requiring proof of actual intent to abandon avoids constitutional problems with the “takings clause”.[101]  Mandelker believes that without requiring proof of the landowner’s “intent to abandon” the use, that the elimination of nonconforming uses would be an unconstitutional taking of private property that would require the municipality to pay the landowner just compensation.[102]  Mandelker also concedes that “the intent to abandon rule makes it difficult to remove nonconforming uses”.[103]

How has the Latrobe Speedway test been applied by subsequent courts and how difficult is it for a municipality to prove that a non-conforming use was abandoned to eliminate that use?  In Finn v Zoning Hearing Board of Beaver Borough, the Commonwealth Court applied the Latrobe Speedway test and found that a non-conforming sign was not abandoned by the landowner.[104]

In Finn, the landowner purchased a commercial building in 1985 where he located his law office.[105]  His office was on the first floor and he leased the second floor to other businesses.[106]  The building has two signposts in the front yard, one for the first floor business and one for the second floor business.[107]  In 1988 the zoning officer and zoning board enacted a new ordinance, whereby only one freestanding sign is permitted per site and that, “if a non-conforming use of a building or land ceases for a period of one (1) year of more, subsequent use of such building or land shall be in conformity with the provisions of this ordinance”.[108]

The landowner’s sign was in continuous use from 1986 through the present, but from August of 2000 until August of 2002, no sign was on the second post because the upstairs office space was vacant.[109]  During that time period, the landowner did not destroy or remove the empty sign post, but maintained them in their place.[110]  In September of 2002, another attorney leased space from the landowner and installed a sign on the second post without obtaining a permit from the municipality.[111]  In October of 2003, the zoning officer notified the landowner that the second sign was in violation of the new zoning ordinance.[112]  The landowner argued that the second sign was a valid non-conforming use, but the municipality contended that because the sign was not displayed for a period of more that one year, the non-conforming use was abandoned as applied to the new ordinance.[113]

The Commonwealth Court ruled in favor of the landowner.[114]  The court held that although the second sign not being displayed “might serve as evidence of the landowner’s intent to abandon the sign use, subject to rebuttal, that evidence is not sufficient in itself to establish actual abandonment”.[115]   The court believed that the evidence of intent to abandon was rebutted by the testimony of the landowner that, “he maintained the second signpost because he intended the sign to be used by future tenants”.[116]  Additionally there was, “no evidence of actual abandonment introduced (the second element), i.e., no evidence of overt acts by the landowner or of statements or uses inconsistent with the non-conforming use”.[117]

A case applying the Latrobe Speedway test that found an abandonment of a non-conforming use is the Commonwealth Court case of Zitelli v Zoning Hearing Board of the Borough of Munhall.[118]  In Zitelli, the landowner purchased two run-down rowhouses in 2001 intending to turn them into two duplexes.[119]  The landowner made a few unsubstantial repairs, but did nothing to the property thereafter.[120]  The houses had previously been occupied as duplexes, but the last person to live there moved out in 1997.[121]  The houses had been subsequently boarded up by the borough.[122]

In 1999, the borough enacted a new ordinance, zoning the area where the houses were located as R-1 residential, permitting only single family dwellings.[123]  The ordinance also contained a provision stating “if a non-conforming use is discontinued for a period of twelve (12) consecutive months or more, the legally non-conforming status shall have automatically been extinguished”.[124]

The landowner was denied her request for an occupancy permit that would have allowed two-family occupancy of the two rowhouse properties because, “any non-conforming use of the properties as two-family dwellings has been abandoned”.[125]  The landowner challenged the board’s determination, but the Commonwealth Court ruled in favor of the zoning hearing board, finding that, “any pre-existing non-conforming use of the landowner’s rowhouses as two-family residences was abandoned”.[126]

The court relied on the fact that, “any pre-existing, non-conforming use of the rowhouses as two-family dwellings ended in 1997, when the properties became vacant and were boarded up”, thus, “any non-conforming use of the properties was discontinued for more that twelve months, the time designated in the discontinuance provision in the ordinance and a presumption of intent to abandon such use was established.”[127]  The court found that the landowner, “failed to present any evidence to rebut this presumption”.[128]  The first element of the Latrobe Speedway test (intent to abandon), was therefore met.[129]  The court found the second element of the Latrobe Speedway test (actual abandonment) was met by “evidence showing that the rowhouses were boarded up, not substantially repaired, and were not inhabited as two-family dwellings”.[130]

There are a few small distinctions between Zitelli and Finn that seem to account for the differences in outcomes.  In Finn, the landowner adequately maintained the non-conforming use, so that the use was ready to be resumed as soon as a new tenant was found.  The landowner left the posts in the ground, and did not give any outward manifestations of an intent to abandon or actual abandonment, such as moving the posts or temporarily taking them down.  In Zitelli, the landowner did not adequately maintain her non-conforming use and the use was not ready to be resumed as soon as a tenant was found.  The landowner did only minor repairs to the run down buildings, and gave outward manifestations of an intent to abandon or actual abandonment by leaving the buildings boarded up and maintaining the buildings in a manner in which they were not ready to rent to an available tenant and resume the non-conforming two-dwelling use.  If the landowner in Zitelli had performed substantial repair to the premises and had the rowhouses ready for prospective tennants when she applied for the occupancy permit, the determination of the court may have been different.

Conclusion

 In summary, “Pennsylvania has generally accorded a sympathetic and broad protection to activities which are non-conforming”, which is “consistent with the more restrictive view of the zoning power generally followed by Pennsylvania courts”.[131]  This general view of the Pennsylvania courts can be seen by the court’s liberal allowance of the establishment of non-conforming uses, their denial of the right of municipalities to amortize nonconforming uses and their insistence on requiring that a municipality prove that a landowner subjectively intended to abandon his non-conforming use.


[1] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, January 8, 2004.

[2] U.S. Census Bureau, Population of the Largest Urban Places, 1940, available at  www.census.gov/population/documentation/twps0027/tab19.txt.

[3] Daniel R. Mandelker, Planning and Control of Land Development, chapter 3, page 234, (5th ed. 2002).

[4] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.1.2, 3, (2nd ed. 2001).

[5] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.1.2, 4, (2nd ed. 2001).

[6] Id.

[7] Professor Michael F. Marmo, Real Estate Skills, Duquesne University School of Law, March 15, 2006.

[8] Id.  Professor Marmo encouraged our Real Estate Skills class to think of how, in all our classes, the theoretical class room concepts apply to real world practice.

[9] Pa. Stat. Ann. 53 § 10107 (2005).

[10] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, September 12, 2004.

[11] Hempfield Township v. Hapchuk, 620 A.2d 668, 153 Pa. Commw.173, (1993).

[12] Id.

[13] Hanna v. Board of Adjustment of Borough of Forest Hills, 408 Pa. 306, 183 A.2d 539, (1962).

[14] Baer v. Zoning Hearing Bd. of Quincy Tp., 782 A.2d 597, (Pa. Commw.2001).

[15] Pa. Const. Art. 1, § 1;   PA Northwestern Distributors, Inc. v. Zoning Hearing, 526 Pa. 186, 584  A.2d 1372, (1990).

[16] Pa. Const. Art. 1, § 10.

[17] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.1.2, 3, (2nd ed. 2001).

[18] Molnar v. George B. Henne & Co., 377 Pa. 571, 105 A.2d 325, (1954).

[19] Anstine v Zoning Board of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963).

[20] Pappas v. Zoning Bd. of Adjustment of City of Philadelphia, 527 Pa. 149, 589 A.2d 675, (1991).

[21] Bachman v. Zoning Hearing Board of Bern Township, 508 Pa. 180, 494 A.2d 1102, (1985).

[22] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.2.1,13, (2nd ed. 2001).

[23] Haller Baking Company’s Appeal, 295 Pa. 257, 145 Atl. 77, (1928).

[24] Haller Baking Company’s Appeal, 295 Pa. 257, 145 Atl. 77, (1928).

[25] Id.

[26] Id.

[27] Id.

[28] Haller Baking Company’s Appeal, 295 Pa. 257, 145 Atl. 77, (1928).

[29] Stokes v Zoning Board of Adjustment , 402 Pa. 508, 167 A.2d 316, (1961).

[30] Ashline v Bristol Township Board of Adjustment, 408 Pa. 245, 182 A.2d 531 (1962).

[31] Ashline v Bristol Township Board of Adjustment, 408 Pa. 245, 182 A.2d 531 (1962).

[32] Id.

[33] Id.

[34] Id.

[35] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.2.2,14, (2nd ed. 2001).

[36] Cook v Bensalem Township Zoning Board of Adjustment, 413 Pa. 175, 196 A.2d 327 (1963).

[37] Id.

[38] Id.

[39] Id.

[40] Cook v Bensalem Township Zoning Board of Adjustment, 413 Pa. 175, 196 A.2d 327, (1963);  Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.2.2,16, (2nd ed. 2001).

[41] Cook v Bensalem Township Zoning Board of Adjustment, 413 Pa. 175, 196 A.2d 327, (1963).

[42] Id.

[43] Id.

[44] Heyman v. Zoning Hearing Bd. of Abington Tp., 601 A.2d 414, 144 Pa.Cmwlth. 167
(1991)

[45] This factual scenario is commonly played out in the City of Pittsburgh and in the North Hill section of the City of New Castle, where I currently live.

[46] Realtor, Prudential Preferred Realty, Pittsburgh, Pa, April, 15, 2006.

[47] The property owner may have other options, such as attempting to obtain a use variance from the local zoning board.  Daniel R. Mandelkar, Planning and Control of Land Development, Chapter 5, pg. 431, (5th ed. 2002).  A use variance occurs when a property owner is permitted to make use of his property in a way contrary to the designated use of the zoning district.  Id.  A use variance, though, is usually very difficult to obtain.  Id.  It will be necessary for the landowner to show he will suffer unnecessary hardship if not given relief.  Id.  Unnecessary Hardship means, in this context, that in the absence of a variance, no feasible use can be made of the land.  Daniel R. Mandelkar, Planning and Control of Land Development, Chapter 5, pg. 431, (5th ed. 2002).  Generally, a property owner needs only to show that his use predated the code to obtain non-conforming use status.  Id. The unnecessary hardship standard would be an almost impossible standard to pass in our factual scenario, since the mansion clearly has the “other feasible use” of being  a single-family home like the rest of the neighborhood.  Additionally, even if a use variance was obtained, it would be much more restrictive on the property owner’s actual use of his land than the attainment of non-conforming use status. Professor Michael F. Marmo, Real Estate Skills, Duquesne University School of Law, March 15, 2006.  This is because the constitutional concerns of nonconforming use doctrine are not present with regard to a use variance.  Id.  Generally, the exact pre-code use of the landowner’s property will be allowed if the property is deemed non-conforming, but a use variance will be subject to more stringent requirements regarding operations because conceptually the code predated the use and the goal of zoning is to bring all uses into compliance.  Professor Kellen McClendon,  Advanced Legal Writing, Duquesne University School of Law, May 10, 2006;  Professor Michael F. Marmo, Real Estate Skills, Duquesne University School of Law, March 15, 2006

[48] Cook v Bensalem Township Zoning Board of Adjustment, 413 Pa. 175, 196 A.2d 327 (1963).

[49] The rules of evidence are usually relaxed at zoning board hearings.  Professor Michael F. Marmo, Real Estate Skills, Duquesne University School of Law, March 15, 2006.  The procedure varies by municipality.  Id.

[50] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, October 18th, 2004.

[51] Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, 710 A.2d 123, (Pa.Commw.1998).

[52] Id.

[53] Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, 710 A.2d 123, (Pa.Commw.1998).

[54] Id.

[55] Id.

[56] Id.

[57] Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, 710 A.2d 123, (Pa. Commw.1998).

[58] Id.

[59] Id.

[60] Id.

[61] Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, 710 A.2d 123, (Pa.Commw.1998).

[62] Collier Stone Co. v. Zoning Hearing Bd. for Township of Collier, 710 A.2d 123, (Pa.Commw.1998).

[63] City of New Castle Zoning Code, enacted 1984, Richard M. Christopher, Mayor.

[64] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, November 14, 2004.

[65] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, November 21, 2004.

[66] Daniel R. Mandelkar, Planning and Control of Land Development, chapter 3, pg. 236, (5th ed. 2002).

[67] PA Northwestern Distributors, Inc. v. Zoning Hearing Board of the Township of Moon, 526 Pa. 186, 584 A.2d 1372, (1990) summarizing . Sullivan v Zoning Board of Adjustment, 83 Pa.Commw. 228, 478 A.2d 912 (1984)

[68] Sullivan v Zoning Board of Adjustment, 83 Pa.Commw. 228, 478 A.2d 912 (1984)

[69] PA Northwestern Distributors, Inc. v. Zoning Hearing Board of the Township of Moon, 526 Pa. 186, 584 A.2d 1372, (1990).

[70] Id.

[71] Id.

[72] Id.

[73] PA Northwestern Distributors, Inc. v. Zoning Hearing Board of the Township of Moon, 526 Pa. 186, 584 A.2d 1372, (1990).

[74] Id.

[75] PA Northwestern Distributors, Inc. v. Zoning Hearing Board of the Township of Moon, 526 Pa. 186, 584 A.2d 1372, (1990).

[76] Id.

[77] Id.

[78] Honorable Joseph M. James, Land Use Planning, Duquesne University School of Law, November 7, 2004.

[79] Upper Darby Township Appeal, 391 Pa. 347, 138 A.2d  99, (1958).

[80] Id.

[81] Id.

[82] Id.

[83] Upper Darby Township Appeal, 391 Pa. 347, 138 A.2d  99, (1958).

[84] Id.

[85] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

[86] Id.

[87] Id.

[88] Id.

[89] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

 

[90] Id.

[91] Id.

[92] Id.

[93] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

 

[94] Id.

[95] Id.

[96] Id.

[97] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

 

[98] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

[99] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

[100] Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Township, 553 Pa. 583, 720, A.2d 127, (1998).

 

[101] Daniel R. Mandelker, Planning and Control of Land Development, chapter 5, pg. 245, (5th ed. 2002).

[102] Id.

[103] Id.

[104]Finn v Zoning Hearing Board of Beaver Borough, 869 A.2d 1124, (Pa. Commw. Crt. 2005).

[105] Finn v Zoning Hearing Board of Beaver Borough, 869 A.2d 1124, (Pa. Commw. Crt. 2005).

 

[106] Id.

[107] Id.

[108] Id.

[109] Finn v Zoning Hearing Board of Beaver Borough, 869 A.2d 1124, (Pa. Commw. Crt. 2005).

 

 

[110] Id.

[111] Id.

[112] Id.

[113] Finn v Zoning Hearing Board of Beaver Borough, 869 A.2d 1124, (Pa. Commw. 2005).

 

[114] Id.

[115] Id.

[116] Id.

[117] Finn v Zoning Hearing Board of Beaver Borough, 869 A.2d 1124, (Pa. Commw.  2005).

[118] Zitelli v Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, (Pa. Commw. Crt. 2004).

[119] Id.

[120] Id.

[121] Id.

[122] Zitelli v Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, (Pa. Commw. Crt. 2004).

[123] Id.

[124] Zitelli v Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, (Pa. Commw. Crt. 2004).

[125] Id.

[126] Id.

[127] Id.

[128] Zitelli v Zoning Hearing Board of the Borough of Munhall, 850 A.2d 769, (Pa. Commw. Crt. 2004).

[129] Id.

[130] Id.

[131] Robert S. Ryan, Pennsylvania Zoning Law and Practice Volume 2, 7.1.3,4, (2nd ed. 2001).

 

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