In 2007, DoMiJo, LLC, purchased a Spring Brook property which had previously been used for commercial purposes despite its location in an R-1 low-density residential district. The previous owner and user, in contemplation of the sale, applied for and received a certificate of nonconforming use for the property. Following the sale, DoMiJo continued to operate a similar use to that of the prior owner, but did not re-register the nonconforming use within 60 days of the sale, in accordance with local ordinances. In 2009, DoMiJo attempted to obtain a certificate of nonconforming use, which was denied by the Spring Brook Township Zoning Officer. DoMiJo did not appeal this denial. In 2010, the business reapplied for a certificate of nonconforming use, which was again denied. At that time, DoMiJo’s failure to re-register the nonconforming use within 60 days of the sale was cited as the justification for denying the certificate. DoMiJo then appealed, and a hearing was held.
During the hearing, held before the Zoning Hearing Board, DoMiJo argued it had a right to continue its nonconforming use, despite failing to re-register, because the previous owner had already obtained a certificate of nonconforming use for the same use on the same parcel. Several community objectors (appellants, in this case) attended the hearing claiming that the previous certificate of nonconforming use had been improperly issued and arguing that the ZHB had to deny DoMiJo’s certificate application because of the failure to timely re-register. The ZHB upheld the Zoning Officer’s certificate denial, and DoMiJo brought an appeal in Pennsylvania trial court. Objectors intervened on that appeal.
The trial court determined that failure to re-register was not tantamount to an abandonment of the nonconforming use. Since the right to maintain a legal nonconforming use is a property interest, running with the land so long as it’s not abandoned, the trial court held that DoMiJo was entitled to continue the nonconforming use. Objectors here appeal.
In their appeal, the Objectors argued that the trial court erred in overturning the ZHB’s decision since the ZHB made no error of law and made its determination based on a substantial evidentiary record. Further, Objectors claimed that the original certificate of nonconforming use was invalid and insufficient to serve as a basis for DoMiJo’s subsequent nonconforming use.
The Commonwealth Court affirmed that a property owner’s right to continue a legal nonconforming use runs with the land and is extinguished by abandonment. Abandonment requires proof of a period of discontinuance of the use as well as an intent to abandon the use. By contrast, the Court held that a certificate of nonconforming use is personal to the property owner, as it establishes the owner’s rights to continue a nonconformance. However, this does not mean that a new owner’s lack of a certificate deprived him of the right to continue a nonconforming use — the court noted that a lack of certificate merely makes it procedurally difficult for a subsequent owner to prove a nonconforming use, but it does not result in the loss of the constitutionally-protected property right to continue a nonconforming use. Further, the regulatory re-registration provisions lacked any statement of the consequences for failing to re-register, and contained no indication that failure to comply with the ordinance would result in loss of a property right. The court noted that, even if the ordinance had contained such provisions, an ordinance stripping a landowner of his right to continue a nonconforming use simply by failure to register or re-register that use would not likely pass constitutional scrutiny. For those reasons, the Commonwealth court held that the ZHB had made an error of law when it determined that DoMiJo was not entitled to continue its nonconforming use simply by failing to re-register.
Objectors had also contended that the original certificate was invalid since it was issued by the Zoning Officer and not by the ZHB. The court found this argument without merit, and the decision of the lower court was affirmed.
DoMiJo, LLC v. McLain, 2012 WL 1339461 (Pa. Cmwlth. 4/18/12)
The opinion can be accessed at: http://caselaw.findlaw.com/pa-commonwealth-court/1599130.html