Posted by: Patricia Salkin | November 6, 2016

PA Appeals Court Holds Nonconforming Restaurant Use was an Appropriate Continuation of Existing Nonconforming Deli Use Under Natural Expansion Doctrine

Tomino operated a deli on the Property, which was a nonconforming use. The Property has had various nonconforming uses since 1926, and the deli had been in operation since the ZHB approved a change in the use of the Property from an insurance office to a deli in April 1998. In October 2013, Tomino filed an application with the ZHB for a special exception to change the nonconforming deli use to a nonconforming restaurant use, as defined in the City’s Zoning Ordinance. Tomino also requested a dimensional variance to expand the nonconforming restaurant from 540 square feet to 1,080 square feet. In this case, Elmer Dunbar and Linda Dunbar, his wife, appealed from an order of the Court of Common Pleas of Northampton County denying and dismissing Dunbar’s appeal from the decision of the Zoning Hearing Board (ZHB) of the City of Bethlehem, which granted William and Joan Tomino a special exception and a dimensional variance.

The court found that the Property “could not reasonably be converted to a conforming use”, despite the testimony of Pat Curullo, a licensed architect, who testified for Tomino that the proposed plan did not overcrowd the land, met the City’s parking requirements, met the City’s requirements under the Ordinance, and resulted in a more aesthetic and attractive facility that operated more efficiently. Tomino further testified that the proposed plan conserved the value of the land and buildings, because without the change, the deli business would ultimately close. Furthermore, the proposed plan would not increase the traffic congestion or the population, as the majority of the deli’s business was from Moravian College students, faculty and employees and people who live near the Property. The proposed plan required land development approval from the City, which included meeting all existing building and fire codes. Additionally, the proposed plan required Tomino to construct two handicap-accessible restrooms and an entranceway. As a result, the Property would be safer than it currently was. Finally, the Property was in a medium to high-density residential zoning district that had three restaurants and a cafeteria within close proximity. Thus, the ZHB found that the character of the district was suitable for another restaurant use.

Next, the court determined that Tomino’s expansion of the nonconforming restaurant was necessary for the reasonable use of the Property. Tomino demonstrated the difficulties the current establishment presented to the operation of the deli and the inadequacies of the building space, having only enough room for one refrigerated meat case, one refrigerated soda case, and one preparation area. Tomino also testified that he would be unable to compete with other local businesses that have unlimited hours and menu items. As such, the court found that the proposed restaurant use was a natural expansion of the deli use. The court therefore held that the expansion from 540 square feet to 1,080 square feet was not unreasonable and was the minimum amount necessary for the restaurant use, and was not detrimental to the health, safety, or welfare of the community. Accordingly, the court held that the ZHB did not err in granting Tomino a dimensional variance.

Dunbar v Zoning Hearing Board of City of Bethlehem, 144 A.3d 219 (PA Cmwlth 7/18/16)


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