Opinion
No. 2115 C.D. 2009
06-30-2011
The Kelso Company, Appellant v. The Zoning Hearing Board of The Township of Haverford
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE QUIGLEY
The Kelso Company (Kelso), appeals from an order of the Court of Common Pleas of Delaware County (trial court) that affirmed the decision of the Zoning Hearing Board (ZHB) of Haverford Township (Township) denying Kelso's application regarding new construction upon and alterations to a tract of land Kelso owns (the Property). We affirm.
The Property, which is located primarily in a C-2 Commercial district (with some of the Property located in an adjoining residential district) is a 65,000 square foot lot upon which the following buildings are situated: (1) 15,452 square foot block and brick building; (2) 2,174 square foot block and brick building: and (3) 2,430 square foot block garage Kelso intends to demolish. The buildings are non-conforming with regard to setback requirements and violate the building coverage requirements of the ordinance. In addition to demolishing the garage building, Kelso proposed to construct a new two-story office building at a different location on the Property. Kelso proposed to use the new building as an office building for its real estate business, an engineering firm, and a steam boiler repair company.
Presently the property is used by an awning cleaning service, a water jet company that cuts materials with a high pressure water jet machine on the premises, an "office advertising manufacturer," a painting contractor, a gardener, and a construction company warehouse. (F.F. 47.) Thus, the property is being productively used. If Kelso is permitted to demolish the garage and construct the two-story building, there will be no overall increase in building coverage non-conformity, the new building will conform to setback requirements, and the impervious surface would be substantially reduced. (Finding of Fact (F.F.) 14.)
We note that these present uses on the Property may also be nonconforming. The C-2 District in which the Property is located permits office uses, convenience stores (and other similar retail establishments), restaurants, repair shops, and beauty shops. Also, uses permitted in C-1 Districts are permitted. C-1 Districts allow professional offices, real estate offices, but do not permit retail or shops.
Kelso offered alternative grounds for approval of his proposal: (1) that his proposed demolition of the existing garage and the construction of the new office building were permitted as of right; and (2) that he was entitled to a special exception under Section 182-802 of the Township's Zoning Ordinance, which relates to the expansion of non-conforming buildings. Kelso contended that the special exception would provide the authority to demolish the existing garage and replace the garage with the new building (on an entirely different site on the Property) which would result in no change in the non-conforming aspect of the Property as to building coverage.
Following hearings before the ZHB, the Township's Director of Codes and Enforcement sent a notice advising Kelso that the ZHB had concluded that the construction of the two-story building was not permitted as of right and denying the alternative request for a special exception. The trial court affirmed the ZHB, noting that the ZHB was correct in concluding that Kelso's proposal to tear down a non-conforming dilapidated garage in order to replace it with a new two-story office building would create an entirely new non-conforming use rather than the natural expansion of an existing non-conforming use.
In its appeal to this Court, Kelso argues that the zoning hearing board erred in concluding (1) that Kelso is not permitted as of right to alter the Property and construct the new office building; and (2) that its proposal complies with Section 182-403.B(1) of the Zoning Ordinance, which provides that "land, buildings or premises may be used for only one" of the listed uses in that provision. One such use is "office building."
This Court's standard of review in a zoning appeal where the trial court does not accept additional evidence is limited to considering whether the zoning hearing board committed an abuse of discretion or error of law. Tu-Way Tower Company v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744 (Pa. Cmwlth. 1997); Human Services Consultants, Inc., v. Zoning Hearing Board of Butler Township, 587 A.2d 40 (Pa. Cmwlth. 1991). An abuse of discretion can only be found if the zoning hearing board's findings are not supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Bailey v. Upper Southampton Township, 690 A.2d 1324 (Pa. Cmwlth. 1997).
The relevant zoning ordinance provision relating to nonconforming uses, Section 182-802, provides in pertinent part as follows:
A. Continuation. Lawful uses located . . . within a building or other structure or part thereof or on the land or in combination of both which [at the time of the effective date of the ordinance] become nonconforming may be continued so long as they remain otherwise lawful . . . .
B. Enlargement of a nonconforming use, building or structure [note applicability to both enlargement of uses and buildings (dimensions)].(Emphasis added.)
1. A nonconforming use [or] building . . . shall not be extended, enlarged or added to in any manner unless said use [or] building . . . including any additions and enlargements, is made to conform to all the regulations of the district, except that, when authorized as a special exception by the [ZHB] following review by the Planning Commission, a nonconforming use or building which consists predominantly of a nonconforming use of a building, may be extended or enlarged, provided that:
a. Any such extension or enlargement shall be on the lot occupied by such use at the effective date of this chapter . . . and shall be immediately adjacent to the existing non-conforming use.
b. No such extension of a nonconforming use shall exceed 50% of the area of the lot and floor area of any buildings devoted to such use . . .
c. Any extension authorized in accordance with this section shall conform to the yard, building coverage and height requirements of the district in which such use is located . . .
2. No structural alterations may be made in any building or structure used for a nonconforming use unless . . . [it] . . . reduce[s] the nonconformity, and no nonconforming building or structure shall be moved, in whole or part, to another location on the lot unless every portion of said building or structure is made to conform to all the regulations of the district in which it is located, except as otherwise authorized by the [ZHB] in connection with any permitted expansion of a nonconforming use.
Because the proposed two-story structure is an office building, the proposed use appears to be a conforming use. As supported by the evidence in the record, the ZHB determined, however, that the proposed building would continue to render the overall Property non-conforming as to building coverage. Section 182-802(B)(1) of the zoning ordinance provides that a property owner may not enlarge or extend any building unless the additions or enlargements are made to conform to the zoning regulations. Also, the highlighted text in Subsection (B)(2) above indicates that an owner cannot move a building unless the building, when moved, will conform to every zoning regulation. Because Kelso is not proposing an enlargement of an existing building, Subsection (B)(1) does not provide support for Kelso's application. Also, because Subsection (B)(2) only permits the moving of a nonconforming structure if it will comply with the provisions of the ordinance, the implication of this provision is that, if a property owner is not permitted to move a building unless it can be made to conform to the ordinance, a property owner cannot erect a new building that does not conform to the ordinance.
Although the proposed new building would constitute a conforming use, the overall coverage would remain nonconforming and, hence, the erection of the building would fail to satisfy the requirements of Subsection (B)(2). Thus, the ZHB correctly concluded that Kelso was not entitled to construct the building as of right, because the ordinance requires any additions, alterations, or enlargements to make the Property conforming as to ordinance requirements, and the proposal would not make the Property compliant as to building coverage. As a conforming use, Kelso would need to obtain a variance from the building coverage requirements in order to construct his building because of the non-compliant nature of the proposal with regard to the building coverage limits.
Further, Section 182-403 of the ordinance (relating to C-2 Districts), upon which the ZHB relied, provides that "[i]n any C-2 District, land buildings or premises may be used or occupied by only one of the following . . .." Contrary to Kelso's construction of this provision, we agree with and defer to the ZHB's interpretation of this provision to mean that Kelso may not use the Property (the land, building, or premises) for more than one "use." There is already an existing building that is used for a variety of industrial and/or commercial-type purposes. The fact that the present uses are nonconforming does not alter the present circumstances relating to the Property and Kelso is not entitled to a nonconforming use and a valid conforming use. A use of the Property already exists, and permitting the construction of a building to be used for offices would constitute an additional use of the land that Section 182-403 precludes.
We also view the various decisions upon which Kelso relies as distinguishable from the facts, law, and specific zoning ordinance at issue in this case.
Based upon the foregoing discussion, the trial court's order affirming the decision of the ZHB is affirmed.
/s/_________
KEITH B. QUIGLEY, Senior Judge
ORDER
AND NOW, this 30th day of June, 2011, the order of the Court of Common Pleas of Delaware County is affirmed.
/s/_________
KEITH B. QUIGLEY, Senior Judge