Pennsylvania Commonwealth Court Deems Natural Expansion Doctrine Inapplicable to Expansion of Nonconforming Recycling Center

January 2015Articles In the Zone

In TGR Warehousing, LLC v. Borough of Berwick Zoning Hearing Board, No. 473 C.D. (Filed: January 9, 2015), the Commonwealth Court of Pennsylvania refused to apply the natural expansion doctrine to permit the operator of a nonconforming recycling center to expand its operations for the storage and transfer of solid municipal waste.

Under the natural expansion doctrine, certain nonconforming uses may be expanded in scope, as a matter of right, to accommodate a business’ increase in magnitude, provided the expansion is over property previously occupied by the owner at the time the ordinance was enacted. See Township of Chartiers v. William H. Martin, Inc., 542 A.2d 985, 988 (Pa. 1988). Generally speaking, a municipality may not prohibit the natural expansion of a nonconforming use. However, the Supreme Court of Pennsylvania has held that a property owner’s right to expand a nonconforming use may be restricted if the proposed use would have an adverse impact on public health, safety and welfare. See Gilfillan's Permit, 140 A. 136, 138 (Pa. 1927); Silver v. Zoning Board of Adjustment, 255 A.2d 506, 507 (Pa. 1969).

In the instant case, the plaintiff, TGR Warehousing, LLC, which operates a nonconforming recycling center in Berwick, Pennsylvania, requested a special exception to expand the recycling center and add a station for the storage and transfer of solid municipal waste. According to TGR, the waste would be stored at the station for a maximum of 72 hours and then transported to a landfill. TGR argued that the enlargement and expansion of its nonconforming structure was permissible under the Borough of Berwick’s Zoning Ordinance and the natural expansion doctrine.

After a hearing, the Borough of Berwick Zoning Hearing Board denied TGR’s application for a special exception, holding that the proposed transfer station would be more objectionable in its operations with the addition of solid waste. The board cited increased noise, fumes and odors as reasons for the denial, holding that the use would be incompatible with the “present character” of the zoning district and the adjoining properties, which include a school and football field. The board also noted that TGR had previously obtained a special exception for a structure expansion and that only one was permissible under the ordinance.

TGR appealed to the trial court, which upheld the Board’s decision. The court rejected TGR’s arguments under the natural expansion doctrine and disagreed that the transfer station would be a natural expansion of an existing, nonconforming use. The court noted that the natural expansion doctrine deals primarily with a change in the volume, rather than the character, of a business’ expansion. The change from “clean recycling materials” to solid municipal waste rendered the natural expansion doctrine inapplicable.

On appeal to the Commonwealth Court, TGR asserted that the trial court erred in failing to apply the natural expansion doctrine. It noted that the ordinance’s definition of “solid waste facility” includes both recycling facilities and transfer facilities, as well as landfills, and therefore, TGR was not changing the intended use of the property. TGR maintained that the proposed modification was a natural expansion of an existing, nonconforming use under the Chartiers decision.

The Commonwealth Court disagreed, stating that TGR’s reliance on Chartiers was misplaced. In Chartiers, a landfill operator was permitted to increase its daily volume under the natural expansion doctrine where the operator was not “changing the intended use of the property.” See 542 A.2d at 989. Here, according to the court, the change in the type of materials, from clean recyclable materials to solid waste, was dispositive, notwithstanding the definition of the term “solid waste facility” under the ordinance. The board’s determination that the proposed change in use would be incompatible with the adjoining properties and character of the zoning district was not an abuse of discretion, and the board properly found that TGR was not entitled to a second special exception to expand the nonconforming use under Section 906(d) of the ordinance. Therefore, the court refused to overturn the ruling of the trial court.

View the entire issue of In the Zone (pdf)