Shyam Ventures v. Zoning Hearing Bd. of Borough of Castle Shannon

313 A.3d 314

SHYAM VENTURES, LLC, Appellant

v.ZONING HEARING BOARD OF the BOROUGH OF CASTLE SHANNON and Borough of Castle Shannon

No. 56 C.D. 2023

Commonwealth Court of Pennsylvania.

Argued February 6, 2024

Decided March 7, 2024

Reargument Denied May 6, 2024

Appealed from No. SA 22-000446, Allegheny, Joseph M. James, J.

Anna S. Jewart, Pittsburgh, for Appellant.

Dennis R. Biondo, Pittsburgh, for Appellee Borough of Castle Shannon.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY JUDGE COVEY

Shyam Ventures, LLC (Appellant), appeals from the Allegheny County Common Pleas Court’s (trial court) December 20, 2022 order denying its appeal from the Zoning Hearing Board of the Borough of Castle Shannon’s (ZHB) July 7, 2022 decision (ZHB Decision) that denied and dismissed Appellant’s appeal from the Borough of Castle Shannon (Borough) zoning officer’s December 21, 2021 determination. Appellant presents three issues for this Court’s review: (1) whether the ZHB abused its discretion or erred as a matter of law by failing to apply the modified variance criteria applicable to requests for natural expansion of a lawful nonconforming use; (2) whether the ZHB abused its discretion or erred as a matter of law by concluding that Appellant’s expansion of the preexisting retail component on its property located at 900 Sleepy Hollow Road in the Borough (Property) did not constitute a natural expansion of the lawful nonconforming truck rental and coin-operated laundry uses; and (3) whether the ZHB erred by ordering Appellant to cease the sale of various retail products and remove related display counters, shelf racks, cabinets, coolers, exterior garbage cans, and refrigerated cabinets from the Property.

The Property has been the site of a U-Haul vehicle rental business (U-Haul) and a coin-operated laundry/laundromat (Laundromat) for at least the last 16 years. On July 8, 2013, the Borough Council adopted Ordinance No. 891¹ as the Zoning Ordinance for the Borough (Zoning Ordinance). Consequently, the zoning district in which the Property is located was rezoned as an R-2 Single and Multi-Family Residential Zoning District. Appellant purchased the Property on July 13, 2018. The Property’s sale to Appellant included personal property identified in an addendum to the sales agreement - washers and dryers, security cameras, a cold refrigerator for drinks, a computer, storage boxes, a change/coin machine, and overnight lock boxes for key drop-off - that had been used in connection with the preexisting U-Haul/Laundromat operation.

Borough Zoning Officer Paul Vietmeier (Zoning Officer) visited the Property on December 20, 2021, after the Borough’s Police Chief notified him that Appellant had sold cigarettes to minors and that other items were being sold at the Property. The Zoning Officer visited the Property and observed and photographed coolers with a large assortment of soft drinks and several shelves and racks displaying various snack food items and other products for retail sale, including cigarettes, vape products, BIC lighters, potato chips, Slim Jims, pumpkin seeds, assorted candy bars, Lifesavers, gummies, Ho-Hos, Twinkies, and Pop-Tarts. The photographs also depicted coffee machines and an automatic teller machine (ATM). The Zoning Officer informed Appellant’s employee during his December 20, 2021 inspection, and Appellant’s owners at a later meeting at the Property, that these retail food, beverage, and other items unrelated to the U-Haul/Laundromat operation (hereinafter, subject retail items) could not be sold on the Property, and why.

By December 27, 2021 letter (Zoning Officer’s Determination), the Zoning Officer notified Appellant:

[The Property] is located within the Borough’s R-2 Single and Multi-Family Residential [Zoning] District. With the adoption of the Borough’s updated Zoning Ordinance in 2013, the U-Haul and [Laundromat] became a non[ ]conforming use within the R-2 [Z]oning [D]istrict. The U-Haul and [Laundromat] [were] permitted to continue to operate as a U-Haul rental and a [L]aundromat as their existence within the [Z]oning [D]istrict predated the update to theZoning Ordinance as such grandfathering the use. Under the provisions of the Zoning Ordinance, the building may continue to operate as a non[ ]conforming use so long as the use is consistent with a coin-operated laundry, and a motor vehicle rental of U-Hauls defined within the Zoning Ordinance. Should the building no longer operate as a coin-operated laundry and a motor vehicle rental of U-Hauls, the use shall revert to presently permitted uses within the R-2 Single and Multi-Family Residential [Zoning] District.

As a follow-up to the conversation we had on December 21, 2021[,] in the [Borough] Police Department, … [the Property] would not be allowed to operate as a convenience/express mini-mart.

As the Zoning Officer for [the] Borough, you shall remove [sic] all cigarettes, vape products, CBD gummies, all candy[,] bags of snacks, coolers of various soft drinks, milks, juices, toilet paper, ice cream[,] and all display counters, shelf racks, cabinets, coolers[,] and orange crates. On the exterior of the building, you will have to remove the garbage cans and refrigerated cabinet beyond the side of the building facing Columbia Drive, from the view of a person standing or driving by. These shall all be removed within ten (10) days. You would be allowed one coin-operated soda pop machine, a coin-operated soap machine, and one coin-operated snack machine for the convenience of the patrons that are using the laundry machines.

The Borough desires a safe and pleasing appearance of the community and shall not be dangerous, unsafe[,] or unsanitary.

Reproduced Record (R.R.) at 258a. The Zoning Officer again visited the Property on January 11, 2022, and took photographs reflecting that the subject retail items remained on racks or inside coolers, and were available for purchase on the Property.

[1–4] On January 13, 2022, Appellant appealed from the Zoning Officer’s Determination to the ZHB. In its appeal, Appellant contended that the sale of the subject retail items the Zoning Officer’s Determination banned is consistent with the Property’s status as a preexisting nonconforming use and is a natural expansion thereof.² On March 29, 2022, the ZHB held a hearing at which several witnesses, including the Zoning Officer, testified, and the parties offered exhibits and photographs into evidence. At the ZHB’s July 7, 2022 public meeting, the ZHB unanimously denied the appeal and affirmed the Zoning Officer’s Determination that Appellant’s use of the Property beyond the U-Haul/Laundromat operation to sell the subject retail items was not a permitted continuation of an existing nonconforming use. On August 1, 2022, Appellant appealed from the ZHB Decision to the trial court and, on August 16, 2022, the Borough intervened. On December 20, 2022, without taking new evidence, the trial court affirmed the ZHB Decision. Appellant appealed to this Court.³ [5–12] Initially, "[i]t is well[-]settled law in Pennsylvania that a municipality may enact zoning ordinances reasonably restricting [a] property right to protect and promote the public health, safety[,] and welfare under its police power." Woll v. Monaghan Twp., 948 A.2d 933, 938 (Pa. Cmwlth. 2008). "A basic purpose of zoning is to ensure an orderly physical development of the city, borough, township[,] or other community by confining particular uses of property to certain defined areas. With such a purpose nonconforming uses are inconsistent." Han na v. Bd. of Adjustment of the Borough of Forest Hills, 408 Pa. 306, 183 A.2d 539, 543 (1962) (citation omitted).

"A lawful nonconforming use is a use predating the enactment of a prohibitory zoning restriction." DoMiJo, LLC v. McLain, 41 A.3d 967, 972 (Pa. Cmwlth. 2012). However, "[t]he right to maintain a pre[ ]existing nonconformity is available only for uses that were lawful when they came into existence and which existed when the ordinance took effect." Hager v. W[.] Rockhill T[wp.] Zoning Hearing B[d.], 795 A.2d 1104, 1110 (Pa. Cmwlth. 2002). When a lawful nonconforming use exists, "the right to continue such use is afforded the constitutional protections of due process." DoMiJo, 41 A.3d at 972. Thus, "[a] municipality is without power to compel a change in the nature of a use where property was not restricted when purchased and is being used for a lawful use." Paulson v. Zoning Hearing B[d.] of Wallace T[wp.], 712 A.2d 785, 788 (Pa. Cmwlth. 1998). "[A] property owner’s right to continue operating a legal nonconforming use on its property is an interest that runs with the land, so long as it is not abandoned." DoMiJo, 41 A.3d at 972.

PAJ Ventures, LP v. Zoning Hearing Bd. of Moore Twp., 225 A.3d 891, 898 (Pa. Cmwlth. 2020) (emphasis added). "The property owner has the burden to prove the existence of a nonconforming use, which requires ‘conclusive proof by way of objective evidence of the precise extent, nature, time of creation[,] and continuation of the alleged nonconforming use.’ " Barnabei v. Chadds Ford Twp. Zoning Hearing Bd., 118 A.3d 17, 23 (Pa. Cmwlth. 2015) (quoting Jones v. N. Huntingdon Twp. Zoning Hearing Bd., 78 Pa.Cmwlth. 505, 467 A.2d 1206, 1207 (1983)). The parties herein do not dispute that the Property’s use for the operation of a U-Haul rental business and a Laundromat is a preexisting nonconforming use.

[13, 14] "The right to expand a nonconforming use to provide for the natural expansion and accommodation of increased trade ‘is a constitutional right protected by the due process clause.’ " Omatick v. Cecil Twp. Zoning Hearing Bd., 286 A.3d 413, 426 n.14 (Pa. Cmwlth. 2022) (quoting Jenkintown Towing Serv. v. Zoning Hearing Bd. of Upper Moreland Twp., 67 Pa. Cmwlth. 183, 446 A.2d 716, 718 (1982)).

Our Supreme Court articulated the doctrine of natural expansion nearly a

...