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.
The appellant then appealed the zoning board’s decision to the trial court which ultimately affirmed the zoning board’s decision.
The Commonwealth Court cited DoMiJo, LLC v. McLain and PAJ Ventures, LP v. Zoning Hearing Bd. of Moore Twp. to define a lawful nonconforming use and underscore the appellant’s burden to prove the lawful nature and extent of the nonconforming use.
While the U-Haul and laundromat use was acknowledged as a legal nonconforming use, the question became whether retail expansion was permissible as a natural extension of the original use.
The Court reaffirmed that although nonconforming uses may expand, such expansion must be reasonable. The zoning ordinance in question lacked a formal process for nonconforming use expansion, thus requiring a variance procedure as previously ruled in Arter v. Phila. Zoning Bd. Of Adjustment.
Evidence showed the volume of retail sales—cigarettes, vapes, food, etc.—exceeded incidental support of laundry and U-Haul activities. The Commonwealth Court agreed with the zoning board that this represented a new and separate commercial use, not a natural expansion of the existing uses.
The Court upheld the order requiring removal of display counters, racks, and coolers. Citing Silver v. Zoning Bd. Of Adjustment, the Court dismissed arguments that the expansion was not harmful. The volume and type of goods altered the character of the use entirely.
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.