Posted by: Patricia Salkin | August 6, 2021

PA Appeals Court Concluded Adding Seating Area in a Convenience Store Constituted Natural Expansion of a Lawful Nonconforming Use and Reversed

This post was authored by Olena Botsthyen, Esq.

Dipal Corporation (Dipal) leases a one-story property in the town of Houston, Pennsylvania and operates two businesses there: Quick Stop, a convenience store, and Gabby’s, a bar and a restaurant. Both businesses were opened before the area was zoned as residential, and are grandfathered nonconforming uses. Dipal sought to expand Gabby’s license for the sale of beer and wine at the convenience store, and to do that, Dipal was required to add seating for at least 30 people at Quick Stop. When Dipal added the seating, the Zoning Officer inspected the property and then informed Dipal that it had improperly expanded nonconforming use of the property. Dipal appealed to the Zoning Board. At the Board hearing, Dipal’s owner, Patel, testified that for about 12 years the convenience store had a kitchen and that when he added seating, he intended merely to expand the alcohol license and not to sell alcohol for consumption inside the store. Patel also testified that he was uncertain whether this was an expansion of an existing nonconforming use or an accessory use, but emphasized that the kitchen was already there. After hearing the testimony, the Board denied the application, having concluded that adding seating to a convenience store constitutes an improper expansion of a nonconforming use, as such an expansion does not fall within the category of a natural expansion. Dipal then commenced this action, and the trial court concluded that since Dipal intended to use the existing kitchen to provide prepared food to its customers, the Board “reasonably could conclude that said food preparation constituted an eating establishment,” and further explained that the right to expand does not include the right to add a second nonconforming use. Dipal appealed to this court.

On appeal, Dipal invoked the doctrine of natural expansion, which permits a landowner to develop or expand a business as a matter of right notwithstanding its status as a nonconforming use. It further argued that no evidence showed that the addition of seating inside Quick Stop would change its primary business, which would remain the sale of food and beverage for household consumption, and the seating is intended merely to allow Dipal “to sell beer and wine to go as well as utilize the preexisting kitchen to sell prepared deli items for on-site consumption.” The court agreed with this argument. It determined that Patel’s testimony showed Dipal’s intention to increase in “magnitude” while maintaining an existing nonconforming use, and remain competitive on the market. Further, the court was unconvinced by the Board’s concerns about the possibility of increased patron activity and increased parking requirements, and determined that they were not supported by evidence. The court ultimately concluded that the Board abused its discretion when it denied Dipal’s application to expand its existing nonconforming use, and reversed.

Dipal Corporation v Chartiers Township Zoning Hearing Board, 2021 WL 3438863 (PA Cmwlth 8/6/2021)

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