South High Street Investment Partners, L.P. v. ZHB of the Boro of West Chester (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA South High Street Investment Partners, L.P., Appellant v. Zoning Hearing Board of the Borough of West Chester BEFORE: : : : : : No. 1360 C.D. 2007 : Argued: March 11, 2008 : : HONORABLE DAN PELLEGRINI, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: April 2, 2008 South High Street Investment Partners, L.P. (Property Owner) appeals an order of the Court of Common Pleas of Chester County (trial court) affirming a decision of the Zoning Hearing Board of the Borough of West Chester (Zoning Board). Property Owner asks this Court to find that the principal use of the building in question is a legal non-conforming use of the entire structure or, in the alternative, that the doctrine of natural expansion of a non-conforming use validates the non-conforming use of all five of the apartment units in the building. For the following reasons, we affirm. Property Owner is the owner of an apartment building located at 620 South High Street in the Borough of West Chester (Borough). It is located in an NC-2 Zoning District1 and it is divided into five dwelling units. In April 2001, the Borough Council enacted Ordinance No. 5-2001, an amendment to the West Chester Code (Zoning Ordinance), referred to as the Student Housing Ordinance. This Ordinance created a use of student home, regulated the location of such use and imposed criteria that a property owner must meet to qualify as a student home. The Ordinance required that a property owner obtain a special exception for student homes in the NC-2 Zoning District. Property owner of student homes that were now considered non-conforming were required to register their nonconforming student homes with the Department of Building and Housing. In June 2001, Property Owner filed a Rental and Student Home Registration Form with the Borough in which the building in question was identified as an apartment with five residential dwelling units, four of which were rented to students (Units A and C-E). At that time, students occupied four of the five apartments, with the other apartment being occupied by a retired West Chester University professor. Upon the professor s death in 2002, his apartment was rented to a group of students. In June 2006, Property Owner submitted another 1 The Borough Zoning Ordinance states that the NC-2 Zoning District is designed to encompass the moderate- to high-density neighborhoods of the Borough which comprise mixed types of residences, including single-family and two-family detached, . . . semi-detached, singlefamily attached and multifamily. Zoning Ordinance, §112-18. Use as a student home in a single-family detached dwelling is permitted as a special exception, as amended in 2001. West Chester Code, §112-19 (C)(9). A student home is defined as [a] living arrangement for at least two students to a maximum of four students unrelated by blood, marriage or legal adoption. Student homes shall not include dormitories. Zoning Ordinance, §112-7. 2 Registration Form in which all five units in the building in question were listed as rented to students. Before June 2006, the Borough was unaware that Property Owner leased all units of the building in question to students. Based on the information provided in the 2006 Registration Form, the Borough s Codes Enforcement Officer issued a notice of violation to Property Owner because the use of Unit B as a student home was an unlawful use. Property Owner appealed the notice to the Zoning Board. First, Property Owner maintained that it was entitled to occupy Unit B as a student home as non-conforming because either the entire building in question was a non-conforming student home or was a natural expansion of the legal non-conforming use of the other four units.2 Alternatively, it requested that the Zoning Board grant a special exception or a de minimis variance from the terms of Section 112-19(C)(9) of the Zoning Ordinance for Unit B to be used as a student home. The Zoning Board denied the request for a special exception finding that the Zoning Ordinance permits a student home in a single-family detached dwelling when allowed, and that the building in question was not a single-family detached dwelling but rather a multi-family dwelling.3 Further, when the 2 A non-conforming use is an activity or structure which predates the otherwise relevant zoning restrictions. Barbagallo v. Zoning Hearing Board of Ingram Borough, 574 A.2d 1171 (Pa. Cmwlth. 1990). 3 The Zoning Ordinance defines a single-family detached dwelling as a building designed for and occupied exclusively as a residence for only one family and having no party wall in common with an adjacent building. A multi-family dwelling or apartment is defined as a building on a separate lot containing three or more dwelling units, with dwelling unit defined as one or more rooms in a building, designed for occupancy by one family for living (Footnote continued on next page ¦) 3 Ordinance limiting student homes was adopted, Unit B was not occupied by students and was, therefore, not a protected non-conforming use and, thus, the doctrine of expansion of a non-conforming use did not apply. It also denied the request of a variance because a change from a conforming use as an apartment to a use not permitted student housing could not be considered de minimis. Property Owner appealed to the trial court, which affirmed the order of the Zoning Board and this appeal followed.4 Property Owner contends that the Zoning Board erred when it held that the entire building was not a legal non-conforming use of the building and applied the classification of a legal non-conforming use only to the individual units. The Zoning Ordinance, however, defines a student home as a living arrangement for at least two students to a maximum of four students unrelated by blood, marriage or legal adoption. Zoning Ordinance, §112-7. A student home is, therefore, a discrete use that is defined by a living arrangement within a unit, not based on all units within a structure. Moreover, Property Owner, when he (continued ¦) purposes and having its own permanently installed cooking and sanitary facilities, with no enclosed space (other than vestibules, entrances or other hallways) in common with any other dwelling unit. Zoning Ordinance, §112-7. 4 Our scope of review of an appeal from a decision of a zoning hearing board where the trial court relied solely on the record made before the board and receives no additional evidence is whether the board committed an abuse of discretion or an error of law, and when the trial court is alleged to have erred, whether the trial court abused its discretion or committed an error of law. Citizens for Responsible Development Windsor Township, Inc. v. Windsor Township, 917 A.2d 918 (Pa. Cmwlth. 2007). 4 registered the non-conforming homes, did so unit by unit, excluding Unit B from the definition of student home. 5 Unit B was not in use as a student home at the time the Ordinance was passed and was not registered by July 1, 2001. To qualify as a legal non- conforming use, a use must exist before the enactment of the ordinance which renders the use non-conforming. Unit B is not entitled to be classified as a legal non-conforming use as a student home. Even if the entire building is not a non-conforming use, Property Owner argues that Unit B still should be allowed to be used as a student home based on the doctrine of natural expansion of a non-conforming use. Pennsylvania courts have recognized a property owner s right to expand a non-conforming use to provide for the natural expansion of a trade, and that right is protected by the due process clause. However, our Supreme Court has held that that right is not unfettered, declaring that [t]he contemplated expansion must not be detrimental to the public health, welfare and safety. We have never questioned the right of a municipality to impose reasonable restrictions on the expansion of a nonconforming use. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 102, 255 A.2d 506, 507 (1969). (Footnotes omitted.) In this case, Property Owner is attempting to expand the use to allow a change from a permitted use as an apartment to a student home, a use not permitted in the district. 5 The Student Housing Ordinance provided that all student homes which were in existence at the time the Ordinance was passed had until July 1, 2001, to register that use as a non-conforming student home. See Borough of West Chester, Ordinance No. 5-2001, Section VII. 5 In West Central Germantown Neighbors v. Zoning Board of Adjustment of City of Philadelphia, 827 A.2d 1283, 1287 (Pa. Cmwlth. 2003), we stated that: Where the owner of a non-conforming use seeks to expand that use and that expansion conflicts with restrictions in the zoning ordinance, the property owner is required to seek a variance. To obtain relief in the nature of a variance as applied to a pre-existing non-conforming use, an applicant must establish four factors: (1) that an unnecessary hardship exists which is not created by the applicant and which is caused by unique physical circumstances of the property for which the variance is sought; (2) that a variance is needed to enable the party s reasonable use of the property; (3) that the variance will not alter the essential character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public s welfare; and (4) that the variance will afford the least intrusive solution. (Citations omitted.) In this case, Property Owner failed to meet this standard. As the trial court trenchantly pointed out: The existence of a valid non-conforming use will, in some instances, establish or make it easier to establish the necessary criteria. However, a fair analysis of the application in this case is that it does not seek to expand any of the existing non-conforming uses, such as making one of those dwelling units larger. On the contrary, the applicant seeks to create an entirely new and separate (and also non-conforming) use. The application is not for expansion of an existing non-conforming use but for creation of an entirely new one to which the applicant is not entitled. Nor did the applicant establish the criteria necessary to support the grant of a variance even taking 6 into consideration the fact that other non-conforming uses already exist within the building. Therefore, the Zoning Hearing Board did not err. The trial court then went on to conclude: In summary, we find no support for Owner s position that the use of the entire building must be considered in its entirety. On the contrary, we believe that each use within a building can be and in this case, is a separate use. Second, we find that the doctrine of natural expansion of a non-conforming use does not require the Borough to permit Owner to use the fifth (5th) apartment within the building in a manner which violates the existing Borough Zoning Ordnance when the apartment was not being used in that manner at the time the Zoning Ordinance was amended. Accordingly, the well-reasoned decision of the Honorable Robert J. Shenkin of the Court of Common Pleas of Chester County is affirmed. _________________________________ DAN PELLEGRINI, JUDGE 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA South High Street Investment Partners, L.P., Appellant v. Zoning Hearing Board of the Borough of West Chester : : : : : No. 1360 C.D. 2007 : : : ORDER AND NOW this 2nd day of April, 2008, the order of the Court of Common Pleas of Chester County is affirmed. _________________________________ DAN PELLEGRINI, JUDGE
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