Agenda - Planning Commission - 08/07/2003

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102 Page 2 -- July 25, 2003 Z..B, Nonconforming Use -- Restaurant adds additional outside tables Was this a natural expansion of the nonconforming use? PENMSYLVANL4 (6/18/03) -- Since 1989, Finegan owned property in a woodland-agricultural-conservation zorfing district, wh/ch was fJ_rst estabhshed when the townsh/p enacted its zoning ordinance in 1972. Finegan and previous owners operated a restaurant and bar on the property since the mid-1950s. After the enactment of the zoning ordinance, the property was considered a pre-eMsting nonconforming use. In 1990, Finegan established an outdoor eating area for 14 tables. He did not obtain a permit, and the zoning officer served a written enforcement notice ad¥ising Finegan of the violation. Finegan responded by filing an application .with the township zoning hear- ing board tO deten~aine if previous owners also used outdoor seating. The board did not make any such tinding, but ~anted Finegan's request for a special exception to continue using the outdoor eating area. No appeal of this decision was filed. In 1999, Finegan added 30 more tables and chairs to the outdoor eating area, again without obtaining a permit from the zoning officer. This expansion brought the seadmg capacity and area to a level greater than permitted under the 1990 decision. Finegan was served with an enforcement notice advising him the capacity was in excess of that which was allowed. Finegan appealed the enforcement notice and applied for a variance. The board denied Finegan's application, and he appealed to the iower court. The court affirmed the board's decision, and Finegan appealed again, arguing the previous expansion was now a nonconforrmng use. DECISION: Reversed. The matter was returned to the board to calculate whether the additional seating areas constituted a natural expansion. The court disagreed that the expansion was itself a nonconforrrsng use. The expansion was a special exception. However, some nonconforming uses under the ordinance could be entitled to natural expansion. The ordinance provided that expansion of nonconform- ing uses consisting of land and structures in combination "to an area not to exceed 25 percent of the land area occupied by the use and 25 percent of the floor area footprint of the structure containing the use at the time it became nonconfbrming." Thus, Finegan was entitled to a ma~mum expansion of his noncon~brming use of 25 percent of the area mentioned as it existed at the time Finegan's use became nonconforming. Thus, the lower court's decision was reversed, and the case was remanded back to the board for a proper calculation. Citation: Finegan v. The Board of Supervisors of Earl Township, Commonwealth Court of Pennsylvania, No. 1598 C.D. 2002 (2003). see also: Jenkinrown Towing Service v. Zoning Hearing Board of Upper Moreland Township, 446 A.2d 716 (J982).