Morrell v. ZONING HEARING BD. OF SHREWSBURY
17 A.3d 972
| Pa. Commw. Ct. | 2011Background
- Morrells appeal the Zoning Hearing Board of Shrewsbury Borough's grant of a special exception to Pennsyltucky LLC to operate a restaurant on 14 North Main Street, Shrewsbury Borough.
- Property lies in the Village zoning district; Pennsyltucky proposed a restaurant with indoor/outdoor dining, up to 55 seats, and certain construction and safety improvements.
- Board-approved plan relied on a special-exception framework under section 205.3(a) and evaluated against general criteria in section 503.6 and specific eating-establishment criteria in section 607.
- The property has preexisting dimensional nonconformities: area 8,712 sq ft (less than 9,000 sq ft) and width 33 ft (less than 50 ft), and setbacks that do not meet current district requirements.
- The Board found setbacks equal to the average setbacks of neighboring properties (via section 406), and determined preexisting nonconformities could continue under section 407.1(b).
- Objectors argued the Board improperly ignored the fifteen-foot setback requirement in section 607(b) and that 406/205.4 should not override specific eating-establishment standards; they also argued abandonment of the prior restaurant affected status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether section 406 permits nonconforming lots to satisfy eating-establishment standards | Morrell argues 607(b) requires specific setbacks for eating establishments, which 406 does not override. | Board properly applied 406 to allow continuation of preexisting nonconformities and to grant the special exception. | Yes; Board did not err in applying 406 to permit the nonconforming setbacks. |
| Whether preexisting dimensional nonconformities may continue under section 407.1(b) | Objectors contend nonconformities cannot be used for a new principal use; abandonment defeats nonconformity. | Section 407.1(b) allows continuation of preexisting nonconformities regardless of abandonment arguments. | Yes; nonconformities may continue under 407.1(b). |
| Whether the Board properly evaluated general criteria under section 503.6 and the specific eating-establishment criteria under section 607 | Morally argues the use would not meet health, safety, and welfare criteria given nonconformities and neighborhood impact. | Board found the use harmonious, adequately served by infrastructure, and not unduly impacting neighbors; 607 specifics satisfied. | Yes; criteria were satisfied to grant the special exception. |
| Whether abandonment of the prior restaurant affects eligibility for a new special exception | Objectors argue the previous use was abandoned, making the current use a new principal use with stricter requirements. | Abandonment of the prior nonconforming use does not bar approval of a new principal use under the ordinance. | Yes; abandonment did not bar the new permit. |
Key Cases Cited
- Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 139 Pa.Cmwlth. 206 (1991) (burden-shifting framework for special exceptions; presumption in favor of compatibility with health, safety, and welfare)
- Callowhill Center Associates, LLC v. Zoning Board of Adjustment, 2 A.3d 802 (Pa.Cmwlth. 2010) (administrative deference to board interpretations of ordinances)
- Lench v. Zoning Board of Adjustment of City of Pittsburgh, 13 A.3d 576 (Pa.Cmwlth. 2011) (application of statutory construction principles to zoning ordinances)