Posted by: Patricia Salkin | October 3, 2019

PA Appeals Court Holds Increasing the Area Used to Store Concrete Barriers was a Natural Expansion of a Preexisting Nonconforming Use

This post was authored by Matthew Loeser, Esq.

Since 2006, Landowner Edgewood Estates, Inc. owned a 23-acre property in Brown Township. The Township’s 1979 Zoning Ordinance placed the northwestern part of Landowner’s property in the R-1 (Rural Residential) Zoning District and the southeastern part of the property in the C (Commercial) Zoning District. In 2011, the Township amended the Zoning Ordinance, placing the entire property in the R-1 Zoning District, with the exception of a 500-foot-wide strip abutting Route 322, which was zoned Commercial. In 2015, the Township’s zoning officer issued a notice of violation to Landowner. Landowner appealed to the Zoning Board, asserting that its activities were lawful nonconforming uses that predated the 2011 amendment to the Zoning Ordinance. Objectors, William Sowich and Nancy Sowich, owners of an adjacent property, filed a petition to intervene. The Zoning Board concluded that Landowner’s use of the property for depositing, storing, and removing fill was a lawful nonconforming use. In this case, Landowner and William Sowich and Nancy Sowich cross-appealed an order of the Court of Common Pleas of Mifflin County, which affirmed the decision of the Zoning Hearing Board of Brown Township.

On appeal, Landowner first contended that the trial court erred by applying a deferential standard of review, rather than a de novo standard. While the court agreed that pursuant to Section 1005-A of the MPC, the trial court was required to make findings of fact on the additional evidence presented at the remand hearing, it nevertheless rejected the Landowner’s argument that the trial court was required to consider the entire matter de novo. As the remand hearing related solely to the issue of whether crushing of stone was a preexisting nonconforming use, and this was the only issue subject to de novo review, the entire matter was not required to be considered de novo.

Landowner next claimed that the trial court erred in affirming the Zoning Board’s determination that its grinding and crushing of stone was not a lawful nonconforming use. Specifically, as Objectors and Township did not present evidence of abandonment, the trial court erred in holding that Landowner had abandoned its grinding use. Additionally, since the trial court did not make any findings of fact about whether the grinding use existed before 2011 and whether it was substantially similar to a sawmill and planing mill – uses allowed in the R-1 District under the former Zoning Ordinance – the court remanded the matter to the trial court to making necessary findings based on the existing record.

Lastly, Landowner contended that the trial court erred in holding that the storage of 400 concrete barriers on the property was not a natural expansion of a preexisting nonconforming use. Here, there was no evidence in the record indicating that storing 400 concrete barriers on a 23-acre property was detrimental to public health, welfare and safety. However, under Section 1805(2) Landowner could not store concrete barriers more than 150 feet beyond the area where they were previously stored, and could not increase the area used to store concrete barriers by more than 25%. Landowner notes that the 40-foot-high pile of “fill” included concrete barriers, and the 400 barriers were located in the same place as the “fill.” Therefore, the Zoning Board did not find that the increase in number of barriers from five to 400 involved an expansion of land area, as was necessary under Section 1805(2) of the Zoning Ordinance. Accordingly, the Zoning Board erred in holding that the increase in number of concrete barriers from five to 400, violated Section 1805(2) of the Zoning Ordinance.

Sowich v. Zoning Hearing Board of Brown Township, 2019 WL 3402927 (PA Cmmwlth 7/29/2019)

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