One of the more perplexing issues that confront land use lawyers and their clients is the question whether their actions or that of their predecessor or that planned by their purchasers or tenants jeopardizes a protected nonconforming use.
Consider, for a moment, that an owner has used his or her property as a parking lot for many years before the township adopted its first zoning ordinance. The same consideration would apply if the owner secured a zoning permit for this use under permissive zoning regulations that later changed to eliminate parking lots as a permitted use. In either case, settled law would recognize the parking lot use as a constitutionally protected nonconforming use, a right that runs with the land. Thus, if the property owner decided to sell or to lease the land to another who wanted to operate a parking lot on the property, the new owner or tenant would have the unquestioned right to continue the activity irrespective of any later changes in zoning regulations.
The problem arises when the use stops for a period. A related problem arises when the proposed purchaser or new tenant wants to engage in a use that is only similar to the protected use but not identical and involves activities that embraced by the former use. Then what?
Land Use Case Review
Recently, the Pennsylvania Commonwealth Court addressed these questions and provided some guidance to landowners in the process. The case is Itama Development Associates, LP v. Zoning Hearing Board of the Township of Rostraver, decided March 1, 2016.
Because most zoning cases are fact sensitive, it is helpful to review the facts that led the court to reach its conclusion that the former property owner, a school district, had not abandoned its nonconforming rights and that the new owner was not restricted to the exact activity that had nonconforming protection. The facts showed that the school district property contained a four-bay garage that the school district used for fueling, parking and routine maintenance of its school buses and vehicle fleet. In 2009, the school district discontinued long-term storage of its buses and vehicles on the property when it sold the property. However, the new owner allowed the school district to use the property for refueling and maintenance until 2013.
In 2014, the new owner applied for a zoning permit to park trucks on the property incident to its business of providing fresh water to gas well drillers and operators in southwest Pennsylvania. The permit application said that the tenant planned to conduct minor upkeep and maintenance of the trucks while at are at the site. The local zoning officer found this activity sufficiently similar to the prior school district use and granted the permit. Itama’s tenant, however, withdrew from its lease. Itama found another tenant who wanted to use the property for commercial trucking operations serving the natural gas drilling industry. That tenant relied on the permit issued to Itama’s first tenant to begin its operations. Following complaints from nearby neighbors about the operations, the zoning officer issued an Enforcement Notice finding that the school district had abandoned its nonconforming use and finding further that the proposed use was not a continuation of the nonconforming use if the nonconforming use remained in effect. The zoning officer described the school district’s legal nonconforming use as fueling and minor maintenance of vehicles. The zoning officer contended that the new had impermissibly expanded the nonconforming use because he observed storage containers on the ground that “looked like … a contractor’s yard or staging area.” Both the zoning hearing board and the lower court agreed with the zoning officer. The Commonwealth Court reversed.
The issues before the Commonwealth Court were whether the school district abandoned the nonconforming use because it allegedly ceased most of its operations in 2009 and whether the new use was sufficiently similar to the nonconformity if the school district did not abandon its nonconforming use. On the first issue, the Commonwealth Court found that even though the school district stopped most of its operations in 2009, it continued to store buses on the property and perform maintenance on them. This evidence and the absence of evidence that the school district intended to abandon the use was sufficient for the court to reverse the court below and the zoning hearing board erred, finding, “the Township failed to prove either the School District’s actual abandonment of, or intention to abandon, its use of the Property as a vehicle garage, which includes the fueling, maintaining, parking and dispatch of vehicles.”
Protected Use Continuation or New Use
Concerning the claim that the new use was not a continuation of the protected use but was, instead, a different use because apart from parking, the tenant was storing containers and roll-off boxes on the site, the Commonwealth Court held that the new use need not be identical to the old, protected use. Instead, according to the court, the new use must only be similar to the protected use. The court’s opinion also observed that the doctrine of natural expansion applies when analyzing if the new use is similar to the protected, nonconforming use. The doctrine of natural expansion permits a landowner to expand a nonconforming business as a matter of right. In making this observation, the court re-affirmed the principle that a mere increase in the intensity of a use does not convert the activity into a different use. The adage is that baby elephants grow into big elephants. Big or small, elephants are elephants. Thus, the court found that the incidental storage of roll-off boxes and containers is an increase in the intensity of the prior use, but is not sufficiently dissimilar to the protected school district’s vehicle garage as to constitute an impermissible expansion of the prior nonconforming use.
The lessons from Itama is that the doctrine of nonconforming use is alive and well; courts will look very carefully at claims of abandonment holding those who claim abandonment to the burden of identifying clear and convincing facts that the owner either had fully abandoned the use, or had the intent to do so; and that nonconforming uses can expand by right if they are sufficiently similar but not identical to the earlier use.
There is a cautionary note to the holding and that is that these cases are fact sensitive. The court provided no clear line to identify when a nonconforming use becomes so dissimilar that it becomes a new use.
Contact a Land Use Lawyer
For more information, contact land use lawyer William E. Benner at wbenner@bennerwild.com.