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In a recently published opinion, the Commonwealth Court of Pennsylvania in Shyam Ventures, LLC v. Zoning Hearing Bd. of the Borough of Castle Shannon, 2024 Pa. Commw. LEXIS 76 (Pa. Cmwlth. Mar. 7, 2024) set clear limits on the expansion of a legal nonconforming use and when such an expansion may be considered an entirely new use altogether.

The case concerns a property in the Borough of Castle Shannon which operated a U-Haul vehicle rental business and a coin operated laundromat since at least 2008, the opinion said.

In 2013, the Borough adopted an ordinance which rezoned the district in which the property is located to an R-2 Single and Multi-Family Residential Zoning District, the opinion said.

According to the opinion, the appellant in Shyam Ventures purchased the property in 2018, and the sale of the property included washers, dryers, security cameras, a refrigerator for drinks, security cameras, and other items used in connection with the preexisting U-Haul and laundromat businesses.

In 2021, a zoning officer for the Borough visited the property and discovered that the laundromat was selling a large assortment of soft drinks, coffee, various snack food items, cigarettes, vape products, and lighters, the opinion said.

The zoning officer advised the appellant that such items were not permitted to be sold at the property as they were unrelated to the U-Haul and laundromat operations, which became non-conforming uses upon the passage of the ordinance, the opinion said.

The appellant was advised to remove the items not permitted to be sold within 10 days and was notified that he was allowed to operate one coin-operated soda machine, a coin-operated soap machine, and a coin-operated snack machine for the convenience of the patrons that are using the laundry machines.

The prohibited items were not removed within the 10-day window and the appellant instead appealed the zoning officer’s decision to the Borough’s Zoning Hearing Board, contending that the sale of the subject retail items was a natural expansion of the existing non-conforming use.

After a hearing before the Borough’s Zoning Hearing Board in July of 2022, the appeal was unanimously denied.

In doing so, the zoning board held that the appellant’s use was beyond the scope of the existing non-conforming use.

The appellant then appealed the zoning board’s decision to the trial court which ultimately affirmed the zoning board’s decision.

After that happened, the appellant appealed the trial court’s ruling to the Commonwealth Court.

Citing to DoMiJo, LLC v. McLain, 41 A.3d 967 (Pa. Cmwlth. 2012), the Commonwealth Court in Shyam Ventures stated that “[a] lawful nonconforming use is a use predating the enactment of a prohibitory zoning restriction” and “[t]he right to maintain a pre existing non-conformity is available for uses that were lawful when they came into existence and which existed when the
ordinance took effect.”

Relying upon PAJ Ventures, LP v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891 (Pa. Cmwlth. 2020), the Commonwealth Court in Shyam Ventures stated that “[t]he property owner has the burden to prove the existence of a nonconforming use, which requires conclusive proof by way of objective evidence of the precise extent, nature, time of create, and continuation of the alleged nonconforming use.”

In Shyam Ventures, the parties did not dispute that the property’s use for the operation of the U-Haul business and the laundromat is a preexisting nonconforming use, but, rather, the question is whether the expansion of the preexisting nonconforming use was permissive.

The Commonwealth Court in Shyam Ventures noted that our Supreme Court discussed the doctrine of natural expansion in Limley v. Zoning Hearing Bd. of Port View, 625 A.2d 54 (Pa. 1993), and determined that “if a person owns property which constitutes a valid nonconforming use, it is inequitable to prevent him from expanding the property as the dictates of business or modernization require.”

However, the Commonwealth Court in Shyam Ventures cautioned that, while the right to continue a legal nonconforming use is protected, the expansion of a nonconforming use is not unlimited, and municipalities may impose reasonable restrictions on such expansions.

On appeal, the appellant contended that he met its burden of establishing the existence of a nonconforming use, and, thus, the zoning board was required to determine whether the changes made by the appellant constituted a natural expansion, as opposed to a continuation of, the lawful nonconforming uses on the property.

The ordinance in Shyam Ventures does not contain a separate procedure for obtaining approval for the expansion of a nonconforming use, but the Commonwealth Court in Arter v. Phila. Zoning Bd. Of Adjustment, 916 A.2d 1222 (Pa. Cmwlth. 2007). previously stated that, when a zoning ordinance does not have a procedure for the approval of an expansion of a nonconforming use, the property owner must meet the “ordinary requirements for the grant of a variance.”

With that line of reasoning, the Commonwealth Court in Shyam Ventures found that the zoning board did not err nor abuse its discretion by not applying a modified variance criteria.

The appellant then argued that the zoning board abused its discretion or erred as a matter of law by concluding that the expansion of the preexisting retail component on the property did not constitute a natural expansion of the lawful nonconforming uses.

In Arter, the Supreme Court held that the proposed use must be sufficiently similar to the nonconforming use but need not be identical.

In Shyam Ventures, the zoning board relied upon testimony presented at the hearing.

At the hearing, the zoning officer who visited the property stated that several shelves and racks at the property displayed food items, cigarettes, vapes, lighters, and more.

In response, at the hearing, the appellant’s manager testified that such items were sold at the property prior to the appellant’s purchase of the property, and although the appellant has performed maintenance, it has not changed the property since purchase. During the hearing, however, the manager did testify that additional items were now being sold because the appellant was not making enough money through the U-Haul and laundromat businesses.

Additionally, the appellant pointed to the zoning ordinance definition of a Coin Operated Laundry and Cleaning Use, which provides for the sale of related products for the customer’s use and “may or may not provide staff to assist customers or provide related retail products for sale.”

The code-defined use for the U-Haul business makes a similar allowance for the sale of supplies related to the vehicles’ use.

The zoning board acknowledged that it would be reasonable to sell snacks in a vending machine but felt that the appellant’s expansion was exploiting the permitted incidental use which would be allowed.

The Commonwealth Court in Shyam Ventures agreed, stating that the sheer volume of retail items for sale was “far beyond a nonconforming U-Haul/Laundromat use and retail items sold incident to those operations.”

Finally, the appellant then asserted that the zoning board erred by ordering the appellant to cease the sale of the subject retail items and remove related display counters, shelf racks, cabinets, coolers, exterior garbage cans, and refrigerated cabinets, pointing to the Supreme Court’s ruling in Silver v. Zoning Bd. Of Adjustment, 255 A.2d 506 (Pa. 1969), which held that a nonconforming use could be expanded if the expansion was not detrimental to the public health, welfare, and safety.

The Commonwealth Court in Shyam Ventures quickly dismissed this assertion, holding that the expansion was an entirely different use than the chief activities of the nonconforming business.

Based on this holding, it is clear that the expansion of a legal nonconforming use is not without reasonable limits. Business owners should clearly understand how their use is defined under the applicable zoning code before considering an expansion. It is possible that such an expansion might force them to re-enter the variance process, seek the support of the community, and ask the zoning board for relief.

Alan Nochumson is a shareholder of Nochumson P.C., a legal services firm with a focus on real estate, land use & zoning, zoning, litigation, and business counseling for the people of Pennsylvania and New Jersey. Nochumson is a frequent author and lecturer on issues commonly confronting businesses, individuals and professionals. You can reach him at 215-600-2851 or alan.nochumson@nochumson.com.

Alex Goldberg is an associate attorney at Nochumson P.C. You can reach him at 215-399-1346 or alex.goldberg@nochumson.com.