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Can I Expand My Business Under Pennsylvania Zoning Law?
It is a clear sign of success when a business outgrows its current quarters and needs more space. It is a problem many businesses would love to have. When faced with the need to expand, the first decision a business must confront is whether to stay and build out the existing location or to instead relocate to larger premises. Very often, the decision will be influenced as much by the local code enforcement officer as by the wishes of the business owner.
Pre-Existing Non-Conforming Uses.
Virtually every city, borough and township in Pennsylvania has its own comprehensive zoning ordinance, dividing the municipality into districts where some uses are permitted as of right, and others are prohibited, while still others are permitted as special exceptions or conditional uses. If a PA business is located within a district where the business is permitted as of right, the primary zoning issue arising out of a planned outward expansion of the business premises will be whether the new building or addition fits within the municipality’s height restrictions and property line set back limitations, commonly referred to as the building envelope.
The problem becomes more complex, however, when the particular business was a permitted use when it began but has since been overtaken by changes in the municipal zoning ordinance. Assume, for example, that XYZ Tool & Die Company first opened its doors on a large plot of former farm land in rural No Name Township in 1952. Like many rural townships of the time, No Name Township had no zoning ordinance in 1952. Therefore, XYZ’s manufacturing operations were, by default, a permitted use. Assume further that in 1965 No Name Township sought to preserve its rural character by adopting a Pennsylvania zoning ordinance placing the XYZ Tool and Die Company squarely within the R-1 residential zoning district. XYZ is, as they say, “grandfathered” as a pre-existing non-conforming use. As a result, XYZ is able to continue its tool and die operations so long as those operations are not discontinued and abandoned for a prescribed period of time (12 months under many ordinances).
But what happens when the business finally outgrows its original space? The right to continue a pre-existing, non-conforming use is not just a matter of municipal ordinance. It is a right guaranteed by Pennsylvania law, and a right which zoning ordinances must respect. Likewise, the right of a property owner to expand a non-conforming use is itself protected by Pennsylvania’s Doctrine of Natural Expansion. Under this Doctrine, a non-conforming use may be extended in scope, as a business increases in magnitude, over ground used for that business purpose at the time of the enactment of the zoning ordinance. Chartiers Township v. William H. Martin, Inc. , 518 Pa. 181, 542 A.2d 985 (1988). However, the right of natural expansion is not unlimited, and a PA municipality has the power to impose reasonable restrictions on the extension of a non-conforming use. R.K. Kibblehouse Quarries v. Marlborough Township Zoning Hearing Board, 157 Pa.Cmwlth. 630, 630 A.2d 937 (1993).
Typically, PA zoning ordinances provide that if a landowner wishes to expand a non-conforming use, he or she must appear before the zoning hearing board and apply for either a special exception or a variance, depending upon the structure of the particular ordinance. The burden of proving the existence and extent of the pre-existing non-conforming use will fall upon the property owner who seeks to expand the use. Overstreet v. Zoning Hearing Board of Schuylkill Township, 49 Pa.Cmwlth. 397, 412 A.2d 169 (1980). Using our example then, if XYZ Tool & Die can produce documentation or witnesses establishing its manufacturing use only as far back as 1968, as opposed to 1952, XYZ would be unable to satisfy its burden of proving that the use pre-existed the 1965 zoning ordinance.
Even when it can be proved that the use pre-dated the ordinance, the right of natural expansion is not unlimited. First, there is no right to expand a non-conforming use onto adjoining properties. Second, and a more common problem, most PA zoning ordinances will limit expansion to a total cumulative area not greater than 25% to 50% of the size of the non-conforming use as of the time it first became non-conforming. Assume for example that No Name Township has an ordinance limiting expansion to 25% beyond the size of the pre-existing non-conforming use, and assume further that XYZ Tool & Die had a use involving 10,000 square feet of floor area as of 1965. XYZ’s total cumulative expansion could not exceed 2,500 square feet. Further, once XYZ has expanded to a total of 12,500 square feet, it cannot then treat that 12,500 square feet of floor area as the lawful non-conforming use and thereafter return to the zoning hearing board to request a further 25% expansion. The expansion right will be strictly limited based upon the square footage that pre-existed the enactment of the ordinance.
Many Pennsylvania municipalities have undertaken to register non-conforming uses within their borders, thereby eliminating or at least reducing later proof problems as well as the potential for false assertions that an unlawful use is grandfathered. To that end, it is customary that when a zoning hearing board recognizes and allows for the expansion of a non-conforming use, it will also require that the property owner pay to have the hearing testimony transcribed, thereby providing a permanent record of the nature and size of the pre-existing use, and the extent of the post-ordinance expansion.
It must be noted too that the right of natural expansion of a non-conforming use extends only to use non-conformities, not dimensional non-conformities. Rennerdale Volunteer Fire Dept. v. Zoning Hearing Board of Collier Township, 90 Pa.Cmwlth. 635, 496 A.2d 431 (2000). That is, XYZ Tool & Die Company might have a right to expand a non-conforming manufacturing operation in a residential district, but not if its existing operations have already been stretched to the edges of the building envelope prescribed by the current zoning ordinance. If the rule were otherwise, and if businesses were permitted to expand beyond the building envelope, the building setback restrictions and maximum building coverage regulations of nearly every ordinance would be rendered all but meaningless.
The restrictions of local zoning ordinances are also now a primary consideration in deciding whether to start or expand a home occupation. Most Pennsylvania zoning ordinances permit homeowners to conduct various types of low-impact businesses out of their homes, but the nature and extent of the permitted uses are heavily regulated.
Many home-based businesses operate under the radar, without the knowledge or permission of the host municipality. The better approach, however, is to identify the requirements of the municipality, and work within those requirements so that the business does not ever have to face the prospect of being fined or shut down as an illegal operation.
In some PA municipalities, home occupations are permitted as of right. In others, they are permitted only by special exception. The definitions of home occupations, and the restrictions imposed upon them, vary significantly from one township to another. Customarily, however, zoning ordinances will permit home occupations of a sort that are customarily incidental to residential uses. Examples of home occupations permitted by many zoning ordinances are professions such as physician, dentist, attorney, psychologist, accountant, architect, engineer, minister, musician and teacher. Other ordinances permit telephone calling services, barber shops and beauty shops, foster homes, custom dress-making and tailoring businesses, catering, and the like. One commonality of most PA zoning ordinances is that the only occupations permitted as home occupations are those which customarily have a low impact on a residential neighborhood in terms of signage, exterior appearance and business traffic.
Thus, even when the zoning ordinance permits a home occupation, it typically does so with numerous restrictions to ensure that the adverse impact on the residential character of a neighborhood is kept to an absolute minimum. Typically, Pennsylvania zoning ordinances restrict home occupations in number so that only one home occupation per residence is allowed. Ordinances also occasionally dictate that the home occupation serve only one client or one patient at a time, though such a restriction can be difficult to enforce. Some PA zoning ordinances also limit home occupation services to daylight and early evening hours, and also typically provide that home occupation may have only one or two non-resident employees. Home occupation ordinances generally prohibit the retail sale of goods from a home, have strict provisions regarding off street parking, and set forth strict limits on exterior alterations, exterior signage and home deliveries. What all of these typical restrictions have in common is the goal of minimizing the impact of the home occupation on the character of a neighborhood designated by the ordinance as residential.
Further, even when a home occupation is permitted, most ordinances impose strict limits on the maximum floor space that can be utilized for that occupation. Some PA ordinances limit the floor space of the home occupation to 25% of the existing floor space within the residence, or to a specified maximum square footage regardless of how large the residence may be. These regulations vary widely from one municipality to the next, so the best advice is to carefully review the zoning ordinance of the municipality where you live before attempting to establish or expand a home occupation. As with most complex legal issues, it is wise to first consult with an experienced lawyer.
If your initial inquiries to the local zoning officer indicate that there may be opposition to proceeding according to your plan, please schedule a consultation with one of the lawyers at Wolf, Baldwin & Associates, P.C.. We can help you understand the zoning ordinance, advise you of your likelihood of success, and provide you with an estimate of the costs and risks involved in proceeding with your plans.
The lawyers at Wolf, Baldwin & Associates have experience presenting cases before Zoning Hearing Boards and stand ready to represent you in zoning matters. Please click here to contact us today for an initial consultation regarding your property.