Posted by: Patricia Salkin | January 2, 2019

PA Appeals Court Holds Voluntary Destruction by Property Owner Terminated Non-Conforming Use

This post was authored by Matthew Loeser, Esq,

 

Applicant owned property in the City of Philadelphia’s Roxborough neighborhood. The property was improved with a three-story (35-foot), vacant, detached residential structure, with one dwelling unit on each floor. Two of the dwelling’s units were two-bedroom units, and the third unit was a one-bedroom unit. In 2015, Applicant applied to the Philadelphia Department of Licenses and Inspections (“L & I”) for a zoning/ use registration permit for the proposed “complete demolition of all existing structures and for the erection of a new three unit multi-family dwelling.” L & I determined that the proposed use/construction did not meet the Zoning Code’s requirements since multi-family residences were not permitted in the RSA-3 district. Applicant appealed L & I’s refusal to the ZBA, which voted to deny Applicant’s appeal of L & I’s notice of refusal.

 

On appeal, Applicant contended that the property was improved with a lawful, non-conforming, three-family dwelling, and that it had a vested property right in the three-family use. Applicant further alledged that it continued to maintain the three-family configuration of the property, and completed repairs to eliminate notices of violations. The record reflected, however, that Applicant’s application for the zoning/use registration permit submitted to L & I, Applicant provided the following in the brief description of work/change section, “For the complete demolition of all existing structures and for the erection of a new three unti multi-family dwelling with porch, rear deck and accessory roof decks with pilot houses to enclose stair and landing only as per plans.” Here, Section 14-305(10) of the Zoning Code, titled “Reconstruction of Destroyed Structures,” provides, “any non-conforming structure, use, lot, parking area, site improvement, or accessory sign destroyed through means other than described in § 14-305(10)(a) shall be reconstructed in compliance with the Zoning Code for the zoning district where it is located.”

 

Thus, based the clear language of the Zoning Code and relevant case law, the court found no error in the ZBA’s determinations that Applicant’s proposed voluntary demolition of the existing non-conforming multi-family dwelling on the property would extinguish the non-conforming use.

 

Renaissance Real Estate Holdings, LP v City of Philadelphia Zoning Board of Adjustment, 2018 WL 6375533 (PA Commwlth 12/6/2018)


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