R.B. McNew v. ZHB of East Marlborough Twp.
R.B. McNew v. ZHB of East Marlborough Twp. - 1425 C.D. 2016
| Pa. Commw. Ct. | Jul 20, 2017Background
- Applicant (Cauffman) sought special exceptions to convert a long-standing nonconforming lawn/garden equipment sales & repair business (Chester County Timber, owned by Singer Family Trust) on a Residential-B lot to a landscaping design company (Green Roots) and to replace the nonconforming sign.
- CCT operated on the Property since the 1960s; operations were reduced in 2008 (stopped large-equipment repairs) but continued limited operations through 2013 and afterward.
- The Zoning Hearing Board granted special exceptions after finding Green Roots would operate seasonally, generate less traffic and noise, have fewer deliveries, use screened outdoor storage, not add lighting, and display a smaller sign.
- Neighbor McNew appealed; the trial court heard the case de novo, adopted the Board’s findings, took depositions, and concluded the proposed use is less detrimental and that the prior nonconforming use was not abandoned.
- The Commonwealth Court affirmed the trial court, rejecting McNew’s arguments on abandonment, relative detriment, and need for additional conditions.
Issues
| Issue | Plaintiff's Argument (McNew) | Defendant's Argument (Applicant/Board) | Held |
|---|---|---|---|
| Whether the existing nonconforming use was (partially) abandoned | CCT’s 2008 downsizing (stopping large-equipment repair, layoffs) amounted to abandonment of that portion, so comparison should be to the reduced use | Reduction in intensity does not equal abandonment; core business (equipment repair) continued | No abandonment; reduction in activity insufficient to prove abandonment |
| Whether proposed use is "less detrimental" than existing use under §1901.A | Green Roots will increase employees, heavy equipment, outdoor storage, hours, lighting, sign, noise, and traffic | Green Roots is seasonal, most work occurs off-site, will have fewer deliveries/customers, screened storage, no added lighting; overall reduced traffic/noise | Trial court’s factual findings supported: proposed use is less detrimental; affirmed |
| Whether trial court abused discretion by not imposing additional conditions | Court should impose specific restrictions (vehicle/employee limits, prohibit outdoor storage/loading, lighting/sign controls, screening) | Board already conditioned approval on conformity with plans/testimony; many proposed conditions unnecessary or unsupported; onerous conditions not required | No abuse: Board imposed conditions via its order; further conditions would be unduly restrictive or unsupported |
| Standard of review / de novo handling of facts | (implicit) challenge to trial court fact findings | Trial court acted as factfinder in de novo review; findings are entitled to deference absent legal error | Commonwealth Court reviews for error of law/abuse of discretion and found none |
Key Cases Cited
- Keystone Outdoor Advertising v. Department of Transportation, 687 A.2d 47 (Pa. Cmwlth. 1996) (abandonment can terminate a lawful nonconforming use)
- Latrobe Speedway, Inc. v. Zoning Hearing Board of Unity Township, 720 A.2d 127 (Pa. 1998) (party claiming abandonment bears burden to prove intent and actual abandonment)
- Simonitis v. Zoning Hearing Board of Swoyersville Borough, 865 A.2d 284 (Pa. Cmwlth. 2005) (reduced use does not necessarily constitute abandonment)
- Heichel v. Springfield Township Zoning Hearing Board, 830 A.2d 1081 (Pa. Cmwlth. 2003) (mere reduction in volume or intensity is not abandonment)
- Kohl v. New Sewickley Township Zoning Hearing Board, 108 A.3d 961 (Pa. Cmwlth. 2015) (ordinance interpretation principles; undefined zoning terms given plain meaning and doubts resolved for landowner)
- Kulak v. Zoning Hearing Board, 563 A.2d 978 (Pa. Cmwlth. 1989) (municipality may revoke special exception if conditions not met)
- Timber Place Associates v. Plymouth Township Zoning Hearing Board, 430 A.2d 403 (Pa. Cmwlth. 1981) (special exceptions derive from ordinance and are limited to its terms)
- Coal Gas Recovery, LP v. Franklin Township Zoning Hearing Board, Greene County, 944 A.2d 832 (Pa. Cmwlth. 2008) (conditions on special exceptions must be reasonable and supported by the record)