Opinion
Argued February 10, 1971
May 5, 1971.
Zoning — Expansion of nonconforming use — Expansion of a building based on a percentage of existing floor area — Difference between a "building" and a "structure" — Variances — Burden of proof — Unnecessary hardship — Economic hardship alone — Distinction between nonconforming use and nonconforming building.
From the Opinion of VOGEL, J., 92 Mont. Co. L. R. 136 (1970) not herein reported but affirmed Per Curiam by the Commonwealth Court, the court below held substantially as follows:
1. Where a zoning ordinance makes a distinction between a "building" and a "structure" and establishes an arbitrary percentage of a building's area beyond which it may not be extended or expanded, the floor area of a porch attached to a building may not be used in calculating the expansion area if such porch does not fall within the ordinance's definition of a building.
2. In order to obtain a variance from zoning restrictions the petitioner must prove that the variance will not be contrary to the public interest and that unnecessary hardship will result if it is not granted. Economic hardship alone is no reason for granting a variance, especially if the landowner, at the time he purchased the property, knew of existing zoning regulations.
3. There is a distinction between the extension of a nonconforming use and a nonconforming building. A nonconforming use cannot be limited to the precise magnitude thereof which existed at the date of the ordinance; it may be increased by natural expansion and growth of trade, but this does not warrant the erection of new buildings or additions beyond the limits set by ordinance.
Judge KRAMER filed a concurring opinion substantially as follows:
1. The appellants chose to apply for a variance and did not apply for a building permit under the natural expansion doctrine, and since the record does not show that the Board or the Court below abused their discretion or committed an error of law, in that appellants did not meet their burden of proof to support a variance, I concur. [50-1]
Judge MANDERINO filed a dissenting opinion substantially as follows:
1. The suggested expansion would be a natural expansion of a nonconforming use and there is no evidence to indicate that it would adversely affect the community. Further, the percentage limitation on building expansion is arbitrary and bears no relation to the health, safety or welfare of the neighborhood. The appellants have, requested the right to naturally expand their use and they should be allowed to do so since there would be no violation of other zoning controls or any impingement on the public welfare. The lower court should be reversed for these reasons. [51-2]
Argued February 10, 1971, before President Judge BOWMAN, and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MANDERINO, MENCER, and ROGERS.
Appeal from the order of the Court of Common Pleas of Montgomery County, No. 68-14928, 1969, in case of Joseph L. Torak, Mary Lou Torak, Helen Borowski and Eugene Borowski v. Upper Merion Township Board of Adjustment. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Application for a zoning permit to expand a building. Denied by building inspector. Application for a variance to expand the building. Denied by the Board of Adjustment and landowner appealed. Order of the Board affirmed, VOGEL, J. Landowner appealed. Held: Affirmed.
Joseph L. Torak, with him E. William Heuser, for appellants.
James E. Meneses, with him Gregory J. Dean, for appellee.
The order affirming the Board of Adjustment of Upper Merion Township in denying appellants' request for a variance is affirmed upon the opinion of Judge WILLIAM W. VOGEL, written for the Court of Common Pleas of Montgomery County, reported at 92 Montg. Co. L. R. 136 (1970).
The realty involved in this case is an island completely surrounded by the asphalt and concrete of roads, one of which is the Pennsylvania Turnpike. The only building on this one and one-third acre plot is occupied by appellants' restaurant business, which covers about five per cent of the total land area. The remainder is used for parking and other restaurant purposes.
According to the record, the only property owner who could be affected adversely by the granting of the full variance requested would be the neighboring country club, insofar as it too may operate restaurant facilities.
I find the record devoid of any explanation as to the reasons for which the realty in question was zoned "agricultural", thereby causing appellants' use to become nonconforming.
This case appears to be a classic example of the occasional unfairness of zoning restrictions. It is to be noted that appellants chose the variance route and did not apply for a building permit under the natural expansion doctrine. This doctrine is reviewed and refined in Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969).
However, a review of the record discloses that neither the Board nor the lower court abused their discretion or committed an error of law, in that the appellants did not meet their burden of proof to support a variance. Therefore, I concur in the result of the majority.
I dissent. The Toraks (appellants) own a plot of ground of approximately 58,000 square feet. Upon the ground there exists a restaurant building, including a porch, which occupies approximately 3,821 square feet. The Toraks wish to enclose the porch area (704 square feet) and build an addition to the restaurant of 538 square feet. If the Toraks are allowed to proceed, a restaurant building covering approximately 4,359 square feet on the plot of ground of approximately 58,000 square feet would result. The new restaurant building would conform to all zoning requirements except that the old restaurant is a nonconforming use and the "new restaurant" would continue to be a nonconforming use.
The expansion requested by the Toraks would be the natural expansion of a nonconforming use and there is absolutely nothing in the record to indicate that such expansion would in any conceivable way adversely affect the community. The plot of ground is surrounded on all sides by major roads and highways. The land coverage of the new restaurant building after the requested expansion would be less than eight per cent of the total plot.
The right of natural expansion is well recognized. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A.2d 506 (1969). The Toraks were denied the right to naturally expand because the Upper Merion Township Zoning Ordinance prohibits more than a twenty-five percent expansion of a nonconforming building. A percentage limitation which relates to the existing nonconforming building and considers no other factors such as ground coverage or adverse effects on neighboring properties is arbitrary and bears no rational relationship to the health, safety and welfare of the community.
It should also be noted that the request of the Toraks for expansion is referred to as a request for a variance. This cannot mean, however, that the usual proof of hardship unique to the land must be found in this case. Regardless of the terminology used, the Toraks requested a building permit to expand and they are entitled to a natural expansion of a nonconforming use that does not violate any other zoning controls and does not adversely affect the health, safety and welfare of the community.
The decision of the lower court should be reversed and the building permit should be issued.