PA Northwestern Distributors v. Zoning Hearing Board

Supreme Court of Pennsylvania · 1991 · Property

PropertyZoningNonconforming UsesTakingslawful nonconforming useamortizationtakingsjust compensation

Facts

Appellant opened an adult book store in Moon Township on May 4, 1985, after obtaining the necessary permits and certificates to operate on leased premises. Shortly thereafter, the township adopted Ordinance No. 243 regulating adult commercial enterprises and requiring any pre-existing nonconforming enterprise to come into compliance within 90 days. Appellant's store qualified as an adult commercial enterprise and could not satisfy the ordinance's location restrictions because it was not in a permitted area. Appellant challenged only the validity of the ordinance's amortization provision.

Issue

May a municipality constitutionally require the amortization and discontinuance of a lawful pre-existing nonconforming use within a fixed period of time? More specifically, is such an ordinance confiscatory and an unconstitutional taking of property without just compensation under the Pennsylvania Constitution?

Rule

In Pennsylvania, a lawful nonconforming use is a vested property right that cannot be abrogated or destroyed unless it is a nuisance, abandoned, or extinguished by eminent domain. Therefore, the amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of Article I, Section 1 of the Pennsylvania Constitution, because if government interferes with such a lawful use it must compensate the owner for the resulting loss.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Erie, a family-owned print shop operated lawfully in a mixed-use district for eight years before the city rezoned the area to prohibit industrial activity there. The new ordinance allows existing nonconforming businesses to remain for 18 months, after which they must cease operations unless they relocate to a compliant district.

If the print shop challenges the 18-month phase-out under Pennsylvania law as stated by the majority, what is the strongest argument?

Explanation. The majority held that in Pennsylvania a lawful nonconforming use is a vested property right. A municipality may not force its discontinuance through an amortization period, because that is per se confiscatory and violates the Pennsylvania Constitution. The court rejected a reasonableness balancing test, and the availability of relocation does not cure the taking.