DOMIJO, LLC v. McLain
2012 Pa. Commw. LEXIS 118
| Pa. Commw. Ct. | 2012Background
- Applicant DoMiJo, LLC sought a certificate of nonconforming use for 1138 State Route 502 in Spring Brook Township, after acquiring the property in 2007, where the prior owner Benjamin had a preexisting nonconforming use certificate.
- Benjamin had operated commercially on the residentially zoned property and obtained a Benjamin Certificate before sale.
- The Township Zoning Officer denied the applicant’s requests in 2009 and 2010 due to a 60-day re-registration requirement in Section 7.600; no timely appeal followed each denial.
- The ZHB upheld the ZO’s denial, finding that failure to timely re-register precluded issuance of a new certificate without a hearing.
- The trial court held no abandonment occurred and granted a certificate of nonconforming use, and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice of appeal was sufficiently specific | Applicant | Objectors | Yes; notice was sufficiently specific under MPC §1003-A(a). |
| Whether Applicant is entitled to a certificate despite failure to timely re-register | Applicant relied on ongoing land-rights in nonconformance | Objectors | Yes; failure to register did not extinguish the nonconforming right; certificate issued after evidentiary showing. |
| Whether the ZHB erred by relying on the re-registration requirement to deny a new certificate | Applicant | Objectors | Yes; re-registration is a procedural requirement, not a loss of rights; right to continue is constitutional and not abandoned. |
| Whether the Benjamin Certificate could be used as evidence of preexisting nonconforming use | Applicant | Objectors | Yes; Benjamin Certificate admissible evidence; ZO issued it independent of ZHB; admissible for proving preexisting nonconformity. |
Key Cases Cited
- Perin v. Bd. of Supervisors of Washington Twp., 128 Pa.Cmwlth. 313.563 A.2d 576 (1989) (Pa.Cmwlth. 1989) (grounds must allege fact-based basis for appeal)
- Great Valley School District v. Zoning Hearing Bd. of East Whiteland Twp., 863 A.2d 74 (Pa.Cmwlth. 2004) (grounds must be specific; boilerplate insufficient)
- Smalley v. Zoning Hearing Bd. of Middletown Twp., 575 Pa. 85, 834 A.2d 535 (Pa. 2003) (due process protects nonconforming use rights; abandonment burden)