Nothing, however, in the codification of this tenet or our appellate case law addressing it suggests that this tenet would render a temporal condition unrelated to ownership invalid per se. Cf. Appeal of Barefoot , 437 Pa. 323, 325, 263 A.2d 321 (1970) ("[w]hen a special [permit] is granted, the use becomes a conforming use, and such use [i]nures to the benefit of a subsequent owner of the land and is not abandoned in the absence of a time limitation in the [permit ] itself or in the zoning ordinance " [emphasis added]); 2 P. Salkin, supra, § 13-40, pp. 13-110 through 13-111 ("A variance runs with the land; absent a specific time limitation , it continues until properly revoked. ...
The variance granted the defendants resulted in a nonconforming use (Glidden v. Nottingham supra) on which they have properly relied over the ensuing years thus acquiring a vested right which could not be affected or changed by the findings or rulings of the Board of Adjustment made on June 18, 1963, five years after the variance was granted. Vlahos Realty Co. v. Little Boar's Head District, 101 N.H. 460, 464, 146 A.2d 257, 261 (1958); Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321 (1970); Haba v. Cuff, 201 N.E.2d 343, 346 (Ohio App. 1963); 2 Rathkopf, The Law of Zoning and Planning 46-4, 57-1, 57-6 (1964); 101 C.J.S. Zoning s. 314 (1958). See Suprenant v. Nashua, 101 N.H. 43, 131 A.2d 632 (1957).
Although not permitted by right, a use which is permitted by special permit under the zoning ordinance is a conforming use.See Appeal of Barefoot, 263 A.2d 321, 325 (Pa. 1969) ("When a special exception is granted, the use becomes a conforming use. . . ."); see also 3 Arden H. Rathkopf, The Law of Zoning and Planning § 61:11 (2005) ("[A] special exception allows a property owner to put his property to a use which the ordinance expressly permits.").
" Van Stone's Cypress v. Zoning Commission, supra, Docket No. 292015. The court in Van Stone's Cypress, in reaching its decision, cited a number of cases from other jurisdictions: Audette v. Coletti, 539 A.2d 520, 523 (R.I. 1988) which held that the successor in interest to property was bound by the conditions attached to a prior granted special exception; County of Imperial v. McDougal, 138 Cal.Rptr. 472, 564 P.2d 14, 17 (1977), which held that a successor landowner succeeded to any benefits which his predecessor in title enjoyed under a conditional use permit as "such permits run with the land"; and Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321, 322 (1970) which, pursuant to state statute (26 P.L.E. Municipal Corporations § 454), held that "[w]hen a special exception is granted, the use becomes a conforming use, and such use inures to the benefit of a subsequent owner of the land and is not abandoned in the absence of a time limitation in the zoning ordinance." Finally, the court in Van Stone's Cypress cited 83 Am. Jur.2d 803, Zoning and Planning § 959 (1992), p. 1013, which stated that "[s]pecial use permits, like all provisions in local zoning ordinances, are not personal licenses but attach to and run with the land," (citing Dege v. City of Maplewood, 416 N.W.2d 854, 855-56 (Minn.
Further, they contend that discretion to accept or reject "photo testing data and information" does not encompass authority to render a previous certification null and void. They note the Board's statement that, had Querry applied for a building/use permit when he received certification, it would have been granted, and his construction would have been legal, but that he and Owners lost the right to use that recertification by not satisfying the conditions necessary for a building/use permit in a timely manner. Owners rely upon Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321 (1970), where the Supreme Court held that a special exception, once granted, becomes a conforming use, and such use inures to the benefit of a subsequent owner; without some time limitation in the special exception itself or in the ordinance, there is none. They argue that the record contains no evidence of any change or problems with the sewage system or the property and that Bieber's rejection was based solely on his difference of opinion with the former Sewage Enforcement Officer as to cesspools in general, which should not justify different treatment of Owners than what their predecessor received. The Board, in response, notes that the 1991 inspection report addressed only the issue of whether the system was currently malfunctioning. It did not address the separate Section 510 (C) requirement of showing "adequacy" of the system; therefore the conclition of compliance with Section 510 (C) was not previously fulfilled.
A successor in interest to such realty succeeds to the benefits and to the conditions of a land use permit to which the realty is subject. Audette v. Coletti, 539 A.2d 520, 522 (R.I. 1988); Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321, 322 (1970); 83 Am.Jur.2d, Zoning and Planning, 1013. The Upjohn court did recognize "that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong policy."
When a special exception is granted, the use is regarded as a conforming use. Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321 (1970). As the court stated in Jenkintown Towing Service, a nonconforming use is not entitled to greater rights than that afforded to a conforming use.
C. The Korngolds' Appeal The Korngolds first contend, and we agree, that the ZBA erred by conditionally reinstating their permit for Sign G based on the removal of Mueller's Sign F, because the use of Sign G was always a lawful conforming use, and as such, could never be abandoned. Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321 (1970). The Korngolds, therefore, have an unconditional right to the reinstatement of the permit for Sign G. Additionally, because we have determined that the revocation of Reagan's Sign F was proper, the reinstatement of the Korngolds' Sign G will not be in violation of Section 14-104(6) of the Code, as Sign G is 550 feet from Sign F and 646 feet from Sign E.
The issue is whether the municipality properly applied a two-year limitation on a conditional use approval which the landowner acquired before the enactment of the limitation. The landowner asserts that the Supreme Court's decision in Appeal of Barefoot, 437 Pa. 323, 263 A.2d 321 (1970), protected his conditional use approval from expiring, regardless of his inaction. However, the court in Barefoot relied on the absence of a time limitation both in the grant of the special exception and in the applicable ordinance, in order to determine that a landowner had not abandoned his grant even though he failed to act on it for six years.
The same result obtains if the previous office use had gained approval by way of special exception; when a special exception is granted, the use becomes a conforming use and it inures to the benefit of a subsequent owner of the land. Barefoot Appeal, 437 Pa. 323, 325, 263 A.2d 321, 322 (1970). ORDER