Beware Razing Building When Seeking Relief From Nonconforming Use

September 2010Newsletters In the Zone

Keebler v. Zoning Bd. of Adjustment of City of Pittsburgh, --- A.2d ----, 2010 WL 2572863, Pa.Cmwlth., June 29, 2010 (No. 1287 C.D. 2009) (no published citation yet)

In this case, the applicant filed an application with the ZHB seeking a special exception to change a previously recognized nonconforming commercial use into a proposed nonconforming use of residential dwellings and garage spaces. The last existing use of the subject property on record with the zoning administrator is that of a police station jail. Prior to filing its application for a special exception, the applicant razed the building but left the foundation.

In its decision, the ZHB noted that, prior to the building being razed, the property was a nonconforming use but upon razing of the building, the property abandoned its status as a nonconforming use. The board then found, although the special exception requested by the applicant cannot be granted under a theory of a change in a nonconforming use, the applicant was entitled to a use variance. Objectors filed an appeal claiming the ZHB failed to provide them with an opportunity to be heard with respect to the variance. The trial court affirmed the decision of the ZHB and the objector’s appeal to the Commonwealth Court.

In its decision, the Commonwealth Court first referenced a holding in a prior decision, Appeal of Booz, 533 A.2d 1096 (Pa.Cmwlth. Court 1987), wherein the court held “where, as here, the application of an alternate legal theory is first undertaken by the board at the time of deliberation, the board must likewise provide notice and an opportunity to be heard to any objectors who entered such an appearance at the first hearing.” Based on this holding, the Commonwealth Court vacated and remanded the case back to the trial court with instructions that it remand the case back to the ZHB in order to afford objectors an opportunity to present evidence in opposition to the requested use variance. The Commonwealth Court also concluded the applicant abandoned its nonconforming use upon razing the building and found that “while proof of intent to relinquish the use voluntarily is necessary in an abandonment case, such proof is not necessary where the structure is destroyed because the right to reconstruct the structure is extinguished by aberration of law,” citing Korngold v. Zoning Board of Adjustment of the City of Philadelphia, 606 A.2d 1276 (Pa.Cmwlth. Court 1992).

Based on this case, it is clear that an applicant attempting to obtain relief by arguing it is changing the use of a property from one nonconforming use to another nonconforming use should never raze the building prior to obtaining this requested relief.

For more information, please contact Clair E. Wischusen at 215.918.3559 or [email protected].