The applicant owned property in the city of Bethlehem, which was zoned RT High Density Residential.  The applicant operated a deli on the property, which was a nonconforming use.  The deli had been in business since the board approved a change in the use of the property from insurance office to a deli in 1998.  The deli began operating at a loss in 2010.  The applicant sought to expand the deli to a restaurant, which the applicant argued was a reasonable use of the property, for the survival of the business.

In October 2013, the applicant requested a special exception to change the nonconforming deli to a nonconforming restaurant.  The applicant also requested a dimensional variance to expand the soon-to-be restaurant from 540ft2 to 1,080ft2.  The board granted the special exception, finding that the restaurant use was consistent with the character of the RT High Density Residential district because other restaurants already existed in the same district.  The board also granted the applicant’s request for a dimensional variance after determining the size of the restaurant was inadequate.  The old space was large enough to house only a few refrigerators and one food-preparation area.  Objectors from the area appealed, and the trial court held that the board’s conclusions were supported by the record.  The objectors again appealed.

The Commonwealth Court agreed with the board that the change from a deli use to a restaurant use was consistent with the spirit, purpose, and intent of Bethlehem’s zoning ordinance.  The court further held that this change was consistent with the most appropriate use of the land and noted that a property owner has a constitutionally protected right to continue a nonconforming use.  Here, the deli existed as a nonconforming use and would continue to do so in a similar capacity as a restaurant.  Therefore, the applicant could qualify for the special exception so long as the ordinance’s requirements were met, which they were.

The Commonwealth Court also determined that the applicant was entitled to a dimensional variance to expand the size of the business to 1,080ft2.  Under the doctrine of natural expansion, a landowner may expand a nonconforming use when a business increases over the ground occupied by the business owner at the time the zoning ordinance was enacted.  In such a situation, a zoning hearing board must consider whether a variance is therefore necessary for the property owner’s business to remain commercially viable and whether it is the minimum variance necessary to support the business.  In this case, the Commonwealth Court held that the expansion was necessary for the reasonable use of the property.  The deli space was inadequate to house a restaurant because of its limited space.  Therefore, the court determined that it was proper for the board to grant the dimensional variance.

Click here to read: Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., No. 1204 C.D. 2015 (Pa. Commw. Ct. July 14, 2016).

Edited by:

Bob Turchick, Law Clerk