Agenda - Planning Commission - 04/04/2019

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Zoning Bulletin February 10, 2019 I Volume 13 I Issue 3 "Property") in a residential zoning district in the City of Philadelphia (the "City"). The Property was improved with a three-story, vacant, detached resi- dential structure comprised of a three-family dwelling. That dwelling was a lawful nonconform- ing use. In October 2015, RREH applied to the City's Department of Licenses and Inspections (the "De- partment") for a zoning/use registration permit for the proposed "complete demolition of all existing structures and for the erection of a new three[ -]unit multi -family dwelling . . .." on the Property. RREH claimed that the existing dwelling structure was structurally defective and proposed to replace it with a "[c]ode-compliant building dedicated to the same use, three-family dwelling." The Department denied the application. RREH appealed to the City's Zoning Board ofAp- peal (the "ZBA"). The ZBA denied the appeal. In doing so, among other things, the ZBA explained that under the City's Zoning Code § 14-305(10)(c), a nonconforming structure or use destroyed voluntarily must be "reconstructed in compliance with the Zoning Code for the zoning district where it is located." The ZBA determined that RREH's demolition of the existing structure on the Property would "result in extin- guishment of the prior three-family use, and any subsequent development would be required to com- ply with the RSA-3 district's standards, which do not permit multi -family dwellings." RREH appealed the ZBA's decision to the trial court. The trial court affirmed. RREH again appealed. On appeal, RREH argued, among other things, that it had not voluntarily destroyed the structure on the Property and that therefore the ZBA's reliance on Zoning Code § 14- 305(10)(c) was misplaced. RREH emphasized that it intended to continue the use of the property as a three-family dwelling, and was seeking to undertake "cosmetic improvements," allowing the noncon- forming use to "resume." DECISION: Judgment of Court of Common Pleas affirmed. The Commonwealth Court of Pennsylvania held that, based on the "clear language" of the City's Zoning Code § 14-305(10)(c) and relevant case law, RREH's proposed voluntary demolition of the exist- ing nonconforming multi -family dwelling on the property would extinguish the nonconforming use. As a result, the court held that "any reconstruction would require compliance with Zoning Code provi- sions for the RSA-3 district, which does not penult multi -family dwellings." RREH had argued that it enjoyed a vested prop- erty right in the three-family use, which was "consti- tutionally protected and [could not] be abrogated unless it constitute[d] a nuisance, [was] abandoned by the owner, or [was] extinguished by eminent domain " Here, RREH maintained that the Property was not a nuisance, had not been abandoned, and was not taken through eminent domain. RREH argued that it had filed a zoning application to continue the non -conforming use in a replacement structure. Unless prohibited by ordinance, RREH asserted, a nonconforming use may be replaced. Again, RREH had argued that, because it had not yet demolished the existing structure, its reconstruc- tion of the nonconforming use was not prohibited by Section 14-305(10)(c) of the Zoning Code and that it was entitled to rebuild the structure. The court rejected RREH's argument. The court noted that "[a] municipal ordinance prohibiting the restoration of a nonconforming structure when it is eliminated is a valid exercise of the police power." Citing prior caselaw, the court said that "[t]he reconstruction of a structure for a specific noncon- forming use is not allowed if the zoning ordinance specifies that such construction is prohibited." Here, the court found that. City Zoning Code § 14- 305(10)(c) prohibited RREH from replacing the nonconforming structure because RREH had sought permission from the ZBA to demolish the existing structure. See also: Korngold v. Zoning Bd. of Adjustment of City of Philadelphia, 147 Pa. Commw. 93, 606 A.2d 1276 (1992). See also: Keebler v. Zoning Bd. of Adjustment of City of Pittsburgh, 998 A.2d 670 (Pa. Commw. Ct. 2010). See also: Money v. Zoning Hearing Bcl. of Haver - ford Tp., 755 A.2d 732 (Pa. Commw. Ct. 2000). Zoning News from Around the Nation MAINE Maine's Land Use Planning Commission is ex- ploring "whether to change the `adjacency prin- ciple,' which limits where new zones for subdivi- sions or businesses can be located." Currently, commercial buildings are restricted to within one mile by road of "existing, compatible development. The Commission is considering allowing new resi- dential and commercial development within seven miles of "rural hubs, and 1 mile from a public road." © 2019 Thomson Reuters 7