Pennsylvania Clarifies Non-conforming Uses

In December 2018, the Pennsylvania Commonwealth Court of appeals in Renaissance Real Estate Holdings LLP v. City of Philadelphia Zoning Hearing Board reiterated that a property owner, who voluntarily destroys a non-conforming use and the municipality’s ordinance plainly bars reconstruction of a non-conforming use upon voluntary destruction, has no legal right to the non-conforming use. The decision helps protect fundamental property rights in Pennsylvania by avoiding interference with the Constitutional right to quiet enjoyment of property.

Summary of Facts

In Renaissance Real Estate, a property owner knowingly purchased a nonconforming property that was used as a three-unit rental house in a neighborhood zoned for single-family dwellings. The property owner decided to tear-down the three-rental-unit house and proposed replacing the house with a larger, 38-foot high, three story, side-by-side condo/rental complex. The proposed project knowingly required three variances, which required the property owner to prove a bona fide hardship under the Municipalities Planning Code and Constitutional law. When the ZHB denied the variances, the property owner then appealed twice.

No Right to Rebuild Nonconforming Use If Owner Voluntarily Destroys the Use

The Commonwealth Court distinguished this case from other cases argued by the property owner. The Commonwealth Court reiterated that

a landowner may be prohibited from resuming the use in a replacement structure, provided that the prohibition is specifically stated in the applicable ordinance. [10]

The material issue here is the voluntary destruction of a non-conforming use by the property owner. As long as the municipal ordinances specify that the voluntary destruction of a non-conforming use extinguishes the non-conforming use, the property owner cannot then complain of “confiscation” for his own, voluntary action.

Fundamental Constitutional Property Rights Protected

While the Commonwealth Court does not expressly discuss the root issues, a non-conforming use by definition raises Constitutionally-protected property rights of neighboring property owners. A non-conforming use is some use that typically does not comply with the compatible uses enumerated in the zoning district.

While often forgotten when discussing property rights cases like these, every property owner enjoys the fundamental Constitutional right to the quiet enjoyment of his property. Furthermore, fundamental Constitutional law imposes a duty on every property owner to use his property in a way that does not interfere with the rights of others to use and enjoy their property.

Thus, contrary to the argument by the property owner in
Renaissance Real Estate , the non-conforming property owner’s rights are not the only rights at issue when considering a non-conforming use. Compare [12], where the property owner cites only his alleged vested rights, with [23] citing Article I of the Pennsylvania Constitution relating to property ownership. A non-conforming use by definition may raise competing fundamental property rights of neighboring property owners and a duty on the non-conforming property not to interfere with the fundamental property rights of others.

Cannot Complain About Your Own Actions

The principle here is simple:

  • a non-conforming use may exist as long as maintained and thus addressing so-called vested rights by the property owner and avoiding “confiscation.”
  • But a non-conforming property owner possesses neither a “super-right” to expand the use nor a “super-right” to voluntarily destroy the non-conforming structure and then rebuild with another non-conforming use—addressing the fundamental property rights of neighboring property owners.