Posted by: Patricia Salkin | September 29, 2015

PA Appeals Court Finds Appellants Failed to Establish an Unnecessary Hardship in Application to Use Their Property as a Catered Events Venue

Drew Barnabei and Nicole Barnabei (“Appellants”) purchased the Stonebridge Mansion and moved into Stonebridge with their two children and began to use it as their primary residence. Appellants later decided to rent out the first and second floors of Stonebridge as a catered events venue. On June 5, 2013, Hugh Donaghue, the Chadds Ford Township Solicitor, also informed Appellants that Appellants’ proposed use of Stonebridge was not a permitted use in an R–1 district. The township subsequently obtained an injunction to prevent Appellants from holding a proposed music and food festival, and a township Zoning Officer issued Appellants six non-traffic citations for holding events on April 20, 2013; April 26, 2013; and May 23, 2013. The ZHB denied Appellants’ application to use their property as a catered events venue, and the Court of Common Pleas of Delaware County affirmed the decision.

Here, because a lessee’s principal use of Stonebridge must be residential in nature, the court agreed with the ZHB that Appellants’ proposed use of Stonebridge is not a permitted use under the Ordinance. Appellants next contended that because 901 Poplar (former owners) held similar events at Stonebridge during the course of its ownership, Appellants have established a nonconforming use. However, Appellants presented no evidence that Stonebridge was used as a catered events venue prior to the enactment of the Ordinance. Thus, the Appellants failed to establish a nonconforming use.

Appellants next brought a claim for variance by estoppel. The court held, however, that the Appellants had waived their argument concerning a variance by estoppel by not raising it before the ZHB. As to the application for a variance, the Ordinance provided that in the event that the Ordinance imposes an unnecessary hardship upon a landowner. This Court held that in order to establish an unnecessary hardship, “an applicant must prove that either: (1) the physical features of the property are such that it cannot be used for a permitted purpose; or (2) the property can be conformed for a permitted use only at a prohibitive expense; or (3) the property is valueless for any purpose permitted by the zoning ordinance.” The fact that the use of Stonebridge as a residence was less financially rewarding than using it as a catered events venue did not justify a variance. Accordingly, the court rejected the Appellants’ argument that they were entitled to a variance. The trial court’s order was therefore affirmed the denial of the application.

Barnabei v Chadds Ford Township Zoning Hearing Board, 2015 WL 3609316 (PA Commwlth 6/10/2015)

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