446 Pa. 319 | Pa. | 1971
Dissenting Opinion
Dissenting Opinion by
Builders Enterprises, Inc., is the owner of some forty acres of land in Ohio Township. Its predecessor
When Builders Enterprises acquired the land, it sought to expand the prior nonconforming use over the remaining portion of the tract, and was refused permission to do so by the zoning hearing board. The Court of Common Pleas of Allegheny County reversed, and was in turn reversed by a divided Commonwealth Court. Twp. of Ohio v. Builders Enterprises, Inc., 2 Pa. Commonwealth Ct. 39, 276 A. 2d 556 (1971). We allowed an appeal.
Appellant argues that a nonconforming use runs with the land and not with the ownership thereof, and that its expansion is a constitutionally protected property right. There can be no doubt that that is the law. Silver v. Zoning Bd. of Adj., 435 Pa. 99, 255 A. 2d 506 (1969); Gross v. Zoning Bd. of Adjust., 424 Pa. 603, 227 A. 2d 824 (1967). The question which remains is whether the use by appellant’s predecessor in title of some five acres of the property for its nonconforming business enterprise entitles it to expand the nonconforming use over the remainder of the property. In this connection, the Court of Common Pleas found as a fact that appellant’s predecessor in title intended to use the entire forty-acre tract for trailer camp purposes at the time he purchased it, and that only capital shortages prevented full development earlier. In Haller Baking Company Appeal, 295 Pa. 257, 145 A. 77 (1928), we indicated that the actual use of the prop
Moreover, I find the reliance of the Commonwealth Court majority on William Chersky Enterprises v. Board of Adjustment, 426 Pa. 33, 231 A. 2d 757 (1967), to be misplaced. In Chersky, we found that the record did not support the existence of a nonconforming use when the ordinance was enacted. We found, in fact, that some six years later, the use sought to be expanded in Chersky had been allowed by a special exception. We therefore held specifically that we were not involved with the normal expansion of a prior nonconforming use, but rather with the expansion of a use allowed by special exception, which required certain approvals under the Pittsburgh Zoning Ordinance. Here, there is no question that the nonconforming use existed prior to the enactment of the ordinance.
The expansion of a nonconforming use is indeed a valuable property right, and the majority’s narrow interpretation of that right does violence to the long-established law of this Commonwealth. We should not decide these cases on the basis of the size of the pro
I dissent.
Lead Opinion
Opinion
Order affirmed.