IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hunterstown Ruritan Club, :

: No. 1204 C.D. 2015

Appellant : Submitted: February 19, 2016

:

v. :

:

Straban Township :

Zoning Hearing Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY JUDGE WOJCIK FILED: July 14, 2016

Hunterstown Ruritan Club (Club) appeals from the June 12, 2015 

order of the Court of Common Pleas of Adams County (trial court) denying the 

Club’s appeal from a decision of the Zoning Hearing Board of Straban Township 

(Board), which denied the Club’s application to expand a prior nonconforming use

on property it owns in Straban Township, Adams County.

1 For the reasons that 

follow, we reverse and remand.

The Club is a local unit of the larger Ruritan community service 

organization. In 1955, the Club purchased a 14-acre property along Red Bridge 

Road for the purpose of providing the community with recreational opportunities, 

 

1 By order dated January 16, 2016, the Board was precluded from filing a brief in this 

matter after failing to comply with this Court’s December 14, 2015 order directing it to do so 

within 14 days. 
2

such as baseball fields, picnic areas, swing sets, and other activities typically found 

in community recreation parks. (Board’s Findings of Fact Nos. 1-4.)

A portion of the property was informally used for go-cart racing

beginning in the early 1960s. The Club eventually entered into a relationship with 

the Hunterstown Kart Club (HKC), some of whose members belonged to both 

organizations. Subsequently, the two groups formalized their relationship, and in 

1982, they entered into the first written lease governing HKC’s use of the property 

for go-cart racing. (Board’s Findings of Fact Nos. 5-6.)

The property was not zoned until 1992, when the township adopted its 

first zoning ordinance (Ordinance). The Club’s property is zoned MU-2, and gocart racing is not a permitted use in that district. However, the parties stipulated 

that go-cart racing was a legal pre-existing nonconforming use when the Ordinance 

was adopted.

2

 In 1992, go-cart racing primarily took place on Saturdays, but races 

also were held on occasional Sundays as early as 1972. (Board’s Findings of Fact 

Nos. 7-8.) 

In 2002, the intensity of the use of the property for go-cart racing 

began to increase incrementally, and over time both the use of the land and the 

hours of operation expanded. In October 2011, the township’s zoning officer 

issued a written notice of zoning violation to the Club. In accordance with 

 

2 Ordinance section 140-26A (nonconforming uses) states:

A. Continuation. Any nonconforming use existing on the effective 

date of this chapter or created by an amendment to this chapter 

may be continued, although such use does not conform to the 

provisions of this chapter. Change in ownership or possession of 

the use or property shall not prevent the continuance of the 

nonconforming use. 
3

Ordinance section 140-27,

3

the Club applied for a certificate of nonconformance, 

requesting recognition of the use of the property for go-cart racing on Saturdays

and Sundays.4 On February 17, 2012, the zoning officer issued a Certificate of 

Non-Conformance that identified the pre-existing nonconforming conditions as 

follows: “The non-conforming use consists of Go Kart Racing events located on 

the existing track at the above site on Saturdays only with all racing ending at or 

before 11 pm. Any expansion of this non-conformity must be approved by the 

 

3

In relevant part, section 140-27 states:

A. An application for a certificate of nonconformance may be 

made to the Township by the owner of any nonconformity, with 

the assistance of the Zoning Officer, as of the effective date of this 

chapter . . . .

B. For previously unregistered nonconformities, the Zoning 

Officer shall provide the property owner with an application for a 

certificate of nonconformance at the time such nonconformity is 

discovered. 

C. The certificate of nonconformance shall set forth in detail all of 

the nonconforming conditions of said property as of the effective 

date of this chapter . . . .

* * *

F. The Zoning Officer shall investigate the content of any 

application for registration of nonconformity. If the Zoning 

Officer is able to verify the existence of the nonconformity at the 

time that the land, use, and/or structure became a nonconformity, 

he shall issue a certificate of nonconformity. Otherwise, the 

Zoning Officer shall deny the application and advise the applicant 

of that decision, and of the applicant’s right to appeal that decision 

to the Zoning Hearing Board. 

4

The record does not reflect any further information concerning the violation notice. 
4

municipality prior to its establishment.” (Applicant’s Ex. 3.) The certificate 

further stated:

Issuance of this certificate is based upon evidence 

submitted by the applicant and with the mutual

understanding that this certificate does not exempt the 

above-described property from the applicable provisions 

of the Zoning Code pertaining to non-conforming uses. 

This certificate also does not relieve the Owner or Lessee 

from the responsibility to collect and submit any required 

Amusement Tax or from compliance with any other 

Municipal regulation or ordinance. 

(Id.) Neither the certificate nor the February 17, 2012 letter to the Club from the 

zoning officer, (Township Ex. 1), advised the Club that it had a right to appeal. 

Thereafter, the Club filed an “Application to the [Board] for a Zoning 

Hearing” on March 5, 2012, accompanied by a copy of the certificate of 

nonconformance. (Board Ex. 1.) In completing the first page of the three-page 

form, the Club described the proposed use of the property as “expansion of activity 

to allow current use after 11:00 p.m. on Saturday and on Sunday.” On the next 

page, the Club checked the box for requesting a nonconforming use change, adding 

that it sought expansion of a prior-existing nonconforming use to allow for racing 

on Saturday after 11:00 p.m. and on Sunday. At the April 18, 2012 hearing, the 

Club amended the application to remove the request to allow racing after 11:00 

p.m. on Saturday. Counsel for the Club also stated that the application was filed as 

a request for expansion under section 140-26B of the Ordinance.5

 

5

Section 140-26B states as follows: 

Extension. Extension of the nonconforming use shall be approved 

by the Zoning Hearing Board as a special exception, subject to the 

following standards and the provisions of §140-61E of this chapter.

(Footnote continued on next page...)
5

Larry Blount, the Club’s president, testified that the Club was 

chartered in 1955 under the Ruritan National Organization of Dublin, Virginia. In 

1957, the Club purchased the property at issue at a tax sale for the purpose of a 

community park. Blount has lived in the area since 2001. He became involved 

with the Club in 2002 and stated that it was primarily used for go-cart racing since 

that time. (R.R. at 18a-21a, 28a.) 

Blount stated that he completed the request form for the certificate of 

nonconforming use in December 2011 seeking approval to continue racing on 

Saturdays and Sundays. Blount said that the zoning officer asked for more 

information and that the Club has been looking through their extensive records for 

relevant documents. He identified a treasurer’s report from 1972 and testified that 

 

(continued...)

 (1) Extensions shall be limited to the lot containing the use at the 

time the use became nonconforming.

 (2) The extension of the nonconforming use shall not replace a 

conforming use.

 (3) The extension shall conform to the requirements of the

underlying district and applicable supplementary regulations, 

including, but not limited to, lot, building, setback, coverage, 

buffering, height, parking and sign requirements.

 (4) The volume and area devoted to the extension shall meet the 

requirements set forth below:

 (a) [Related to the extension of nonconforming uses within or 

to existing structures]. 

 (b) Land operations which are nonconforming uses (e.g., 

mineral recovery operations, agriculture activities, junkyards, and 

landfills) may be extended greater than 20% upon the approval of 

the Zoning Hearing Board.
6

it reflected at least two Sunday races during June and July of that year. (R.R. at 

28a-29a.)

Blount testified that the Club disagreed with the terms of the 

certificate of nonconformity that excludes Sunday racing and asked its attorney “to 

file to expand the prior existing nonconforming use certificate.” (R.R. at 29a.) He 

added that the Club reviewed the criteria of Ordinance sections 140-26B and 140-

61E and that the Club satisfied those specific requirements. Blount noted that the 

property is now used exclusively for go-cart racing. He added that the Club 

contributes several thousand dollars to the community every year in various ways, 

including scholarships. (R.R. at 30a-37a.)

Blount testified that the Club applied for recognition of racing on both 

Saturdays and Sundays as a pre-existing nonconforming use when it filed the 

request for the certificate of nonconformance. Blount further stated that the Club 

submitted evidence to establish the existence of Saturday and Sunday racing and 

never received an explanation as to why the certificate did not include 

authorization for racing on Sundays. (R.R. at 54a.)

Keith L. Blumenstein, Sr., president of the HKC, testified that he had 

been racing at the property since 1989. He estimated that he raced ten to twelve 

times at the property that year. He stated that approximately 28 races took place in 

2011, with eight of those races scheduled on Sundays. Blumenstein testified that 

although Saturday racing was more popular in the 1990s, Sunday is now the more 

popular day, and he believed that the ability to hold races on Sundays was essential 

to the continued existence of the HKC. 

Blumenstein testified that alcohol was not allowed on the property. 

He stated that trash is picked up the day after racing and a waste company picks up 
7

the dumpster on Wednesdays. “Porta-potties” are leased. Parking of cars, trucks, 

and trailers is overseen and patrons are directed to parking places; when 

occasionally people park on the street, they are asked to move their cars. 

Blumenstein estimated that 250 people raced on the Sunday prior to 

the hearing. He said that traffic is manageable because races are scheduled by 

division for racers ages five to sixty and people come and go at different times. He 

stated that a new public address system had been installed; the speakers all face the 

track and there are no speakers on the side of the property near houses. 

Blumenstein testified that the prizes for some races are t-shirts or trophies, and 

some are cash purses of up to $10,050. 

Finally, addressing pedestrian access, Blumenstein testified that there 

are no sidewalks anywhere in the Hunterstown area. He also noted that go-carts 

are not street legal and must be trailered to the property. (R.R. at 55a-66a, 68a, 

75a-76a, 83a-84a.)

Robert Clem Malot, the township’s zoning officer, testified that the 

Club did not provide any documentation to demonstrate that racing took place 

prior to 1992. He believed that a cover letter he sent with the certificate 

sufficiently explained the reasons for his determination. (R.R. at 86a-89a.) 

Frank Thomas testified that he has lived directly across the street from 

the property since at least 1992. He stated that no Sunday racing had taken place at 

the property until about 2007. Thomas said that when the Club was first 

considering the track, it stressed that racing would only occur on Saturdays and 

end by 11:00 p.m. to appease his father and get community support for the track. 

Thomas complained that the go-carts are very loud and that cars park all along the 

road. He testified that he cannot enjoy his outdoor property during racing because 
8

of the noise; he said he understood that the track has existed for 47 years and he 

tolerates racing on Saturdays, but he would like to be outside on Sundays. (R.R. at 

91a-98a.)

George Brown, owner of property adjacent to the track, testified that 

when he purchased his house in 1976, racing took place only on Saturdays, and 

Sunday racing did not begin until after 2000. Like Thomas, Brown said that due to 

the noise, he cannot enjoy a picnic or even hold a conversation outside when racing 

is taking place. He also said that there were more go-carts and much greater noise 

on Sundays than Saturdays. (R.R. at 102a-06a.) 

In addition to the findings summarized above, the Board found that 

the Club had not demonstrated that the proposed expansion of the nonconforming 

use satisfied the requirements of the underlying zoning district and applicable 

supplementary regulations. Specifically, the Board determined that the proposed 

use does not meet applicable buffering or parking requirements. The Board also 

found that the proposed use does not satisfy the special exception standards at 

section 140-61E of the Ordinance. In that regard, the Board found that the 

proposed expansion will significantly devalue neighboring properties. (Board’s 

Finding of Fact No. 17(b).) The Board also found that: the Club failed to 

demonstrate that the use is consistent with the logical extension of public services,

such as water or sewer; the Club did not establish planning with respect to 

environmental issues, where the proposed use increases noise, traffic, parking 

needs, pedestrian use of the land, and removal of vegetation; the Club did not 

demonstrate safe and adequate access to streets for vehicles or for pedestrian 

access to the property; the Club has not provided fencing or screening, which is a 

factor in the devaluation of adjoining properties; the proposed use does not satisfy 
9

the parking requirements of the Ordinance: the number of spaces were not 

established, and the spaces are not marked to identify parking for standard vehicles 

and handicapped parking; and the Club did not establish either the adequacy of 

illumination of the property or its effects on adjacent properties. (Board’s Findings 

of Fact Nos. 17-(a)-(g).)

The Board explained that, in rendering its decision, it recognized that 

the Club has a pre-existing nonconforming use. The Board next noted that the 

Club did not appeal from the use certificate issued by the zoning officer. However, 

the Board stated that this fact “does not control the decision in this case since the 

nonconforming use certificate as well as the testimony at hearing establishes that 

the use existed on the date [the Ordinance was adopted],” and the Board 

acknowledged that “[t]he contents of the certificate do not freeze the use as it 

existed at the time of Ordinance adoption.” (Board decision, discussion.) The 

Board observed that the application submitted by the Club requested an expansion 

of a nonconforming use under the provisions of Ordinance section 140-26, under 

which an applicant must satisfy the requirements for a special exception. Based on 

the findings summarized above, the Board concluded that the Club failed to satisfy 

the special exception standards of the Ordinance and denied the Club’s application 

for an expansion of its nonconforming use. 

The Club appealed to the trial court, arguing that it was not proposing 

a change in use or to physically expand the area used for racing but only to conduct 

the same racing that had occurred for years. The township countered that the issue 

before the Board was not whether there was a prior nonconforming use for Sunday 

racing but whether the Club was able to meet Ordinance requirements to expand 

racing to include Sundays. The trial court reasoned that the Club’s failure to 
10

appeal from the certificate of nonconformance as well as its application for a 

nonconforming use change indicated that the Club was not challenging the 

limitation of its nonconforming use to Saturdays only, but was seeking to expand 

the use to include Sundays. The trial court further concluded that the Board did 

not deny the Club its right to the natural expansion of its nonconforming use but, 

instead, “accepted the Certificate of Nonconformance as establishing the prior use 

(racing on Saturdays only) and then denied the request to extend racing to 

Sundays” based on a failure to satisfy Ordinance standards. (Trial court op. at 5.) 

Accordingly, the trial court denied the Club’s appeal. 

On appeal to this Court,6the Club first argues that it never abandoned 

the nonconforming use of go-cart racing on Sunday. The Club maintains that the 

Board’s Finding of Fact No. 8 confirms that fact and supports the Club’s position 

that the lawful nonconforming use includes racing on both Saturday and Sunday.7 

We agree. 

 

6 Where, as here, the parties present no additional evidence to the trial court, our scope of 

review is limited to determining whether the zoning hearing board committed an error of law or 

abused its discretion. Good v. Zoning Hearing Board of Heidelberg Township, 967 A.2d 421, 

423 n.5 (Pa. Cmwlth. 2009). 

7

The Club also argues that the Board erred in requiring it to satisfy the standards of 

section 140-26B3, which are applicable to nonconforming use expansions that involve a change 

in physical characteristics or footprint. The Club contends that such requirements are not 

applicable to an established use that is conducted within an established footprint, when the only 

issue for consideration is the operation of the same use on a different day. Specifically, the Club 

asserts that the Board erred in applying section 140-26B3, requiring the Club to satisfy the 

Ordinance provisions governing lot, building, setback, coverage, buffering, height, parking and 

sign requirements, where the proposed expansion is merely temporal. The Club emphasizes that 

Sunday racing does not involve an enlargement of the track or facilities, such as parking, 

concessions, or toilets, but utilizes existing parking and facilities on the same property with the 

existing buffers, etc., that accommodate the preexisting nonconforming use.

(Footnote continued on next page...)
11

A lawful nonconforming use is a use that predates the enactment of a 

prohibitory zoning restriction, DoMiJo, LLC v. McClain, 41 A.3d 967, 972 (Pa. 

Cmwlth. 2012), and the right to continue a legal nonconforming use is entitled to 

the constitutional protection of due process. Smalley v. Zoning Hearing Board of 

Middletown Township, 834 A.2d 535, 539 (Pa. 2003). In Pennsylvania Northwest 

Distributors, Inc. v. Zoning Hearing Board of Moon Township, 584 A.2d 1372, 

1375 (Pa. 1991), the court explained that the fundamental basis for the protection 

of uses and structures that were lawful when instituted is the “inherent and 

indefeasible” right of this Commonwealth’s citizens to possess and protect 

property guaranteed by Pa. Const. art. I, §1. Thus, “[a] lawful nonconforming use 

establishes in the property owner a vested property right which cannot be 

abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished 

by eminent domain.” 584 A.2d at 1375. In this case, the Board specifically found 

that Sunday racing took place prior to the enactment of the Ordinance, and nothing 

in the record suggests that such use was abandoned.

In DoMiJo, we contrasted a property owner’s constitutionally 

protected property right to continue a legal nonconforming use, which is an interest 

 

(continued...)

As to the special exception standards set forth in Ordinance section 140-61E, the 

Club further asserts that, since no public water or sewer services are available in the area of the 

property, a rural and substantially undeveloped area of the Township, the Board abused its 

discretion by finding that the Club failed to offer evidence of a logical extension of public 

utilities. The Club also argues that the Board erred in finding that off-street parking and lack of 

pedestrian access present safety hazards and that lack of fencing or screening are factors that 

devalue adjoin properties. According to the Club, the testimony of objectors was entirely 

speculative and insufficient to establish harm to the public health, safety and welfare.
12

that runs with the land, with a certificate of nonconforming use, which is personal 

to the property owner. Id. at 972. 

A certificate proves the existence of a nonconforming 

use. The mere absence of a certificate [of 

nonconforming use] does not deprive the landowner of 

his right to continue a lawful nonconforming use. 

Rather, in an administrative proceeding such as this, 

absence of a certificate generally deprives a landowner of

the most efficient method of proving the existence of the 

use, and shifts to the landowner the burdens of proof and 

persuasion. In short, a certificate represents a procedural 

advantage, not an independent property right. 

Conversely, the lack of a certificate results in a 

procedural disadvantage and not in the loss of a property 

right.

Here, the [Board] determined [that the applicant] was not 

entitled to continue the nonconforming use because it 

failed to timely re-register the use after purchasing the 

subject property. The [Board] erred in reaching this legal 

conclusion. Because the right to continue a 

nonconforming use arises from constitutional protections 

and not from regulatory provisions, the right cannot be 

lost in this way.

Id. at 973 (emphasis added). Similarly, the Board erred in this case by concluding 

that the Club was not entitled to continue its nonconforming use because the use 

was not reflected in the certificate of nonconformance. 

Additionally, under the doctrine of natural expansion, “the right to 

expand [a nonconforming use] as required to maintain economic viability or to 

take advantage of increases in trade, is also constitutionally protected.” Nettleton 

v. Zoning Hearing Board of Pittsburgh, 828 A.2d 1033, 1037 n.3 (Pa. 2003). 

Consequently, “a nonconforming use cannot be limited by a zoning ordinance to 

the precise magnitude thereof which existed at the date of the ordinance . . . .” 
13

Humphreys v. Stuart Realty, 73 A.2d 407, 409 (Pa. 1950). See, e.g., Limley v. 

Zoning Hearing Board of Port Vue Borough, 625 A.2d 54 (Pa. 1993) (use of 

property as a public restaurant and bar was a permissible expansion of a prior 

nonconforming use as a private club); Pappas v. Zoning Board of Adjustment of 

City of Philadelphia, 589 A.2d 675 (Pa. 1991) (full-service pizza restaurant was a 

permissible expansion of a takeout sandwich shop); Chartiers Township v. William 

H. Martin, Inc., 542 A.2d 985 (Pa. 1988) (upholding the protected right of 

operators of a nonconforming landfill to increase the daily intake of solid waste);

Silver v. Zoning Board of Adjustment, 255 A.2d 506 (Pa. 1969) (invalidating as 

unconstitutional a zoning provision that prohibited any increase in the number of 

dwelling units in an apartment building that was lawfully nonconforming as to 

use); Itama Development Associates, LP v. Zoning Hearing Board of Rostraver, 

132 A.3d 1040 (Pa. Cmwlth. 2016) (increase in the intensity of a prior use such as 

variations in the types of vehicles and hours of operation did not justify a finding 

of a new or different use); Foreman v. Union Township Zoning Hearing Board, 

787 A.2d 1099 (Pa. Cmwlth. 2001) (mere increase in the frequency of adult 

entertainment does not render the current use of the property a new or different 

use); Clanton v. London Grove Township Zoning Hearing Board, 743 A.2d 995 

(Pa. Cmwlth. 1999) (processing topsoil by drying and bagging it prior to transport

was a continuation of the nonconforming use of trucking loose topsoil away for 

bulk sale).8

 

8

These protections are applicable only to nonconforming uses. In contrast, 

nonconforming structures have no protected right to expand in violation of the applicable 

regulations. Nettleton, 828 A.2d at 1037 n.3 (citing Miller & Son Paving, Inc. v. Wrightstown 

Township, 451 A.2d 1002, 1007 (Pa. 1982), and Fagan v. Philadelphia Zoning Board of 

Adjustment, 132 A.2d 279, 281 (Pa. 1957)).
14

While the right to continue a legal nonconforming use is entitled to 

constitutional protection, the right to natural expansion is not unlimited, and 

municipalities may impose reasonable restrictions on expansions of 

nonconforming uses. Smalley, 834 A.2d at 544; Silver v. Zoning Board of 

Adjustment, 255 A.2d 506, 507 (Pa. 1969) (expansion may not be detrimental to 

public health, welfare, and safety). Thus, “conditions on the land associated with 

the protected use” may be subject to reasonable regulation. Baer v. Zoning 

Hearing Board of Quincy Township, 782 A.2d 597, 601 (Pa. Cmwlth. 2001); 

Cornell Uniforms, Inc. v. Abington Township, 301 A.2d 113 (Pa. Cmwlth. 1973) 

(zoning board has continuing authority to place reasonable restrictions on a 

nonconforming use). 

However, such regulation cannot be accomplished by way of a 

certificate of nonconformance, which, as the Board correctly noted, can neither 

expand nor limit a lawful nonconforming use. Indeed, it is now well settled that 

the grant or denial of a nonconforming use certificate has no bearing on an 

individual’s property rights. Slusser v. Black Creek Township Zoning Hearing 

Board, 124 A.3d 771 (Pa. Cmwlth. 2015).

9

 The issuance of a nonconforming use 

certificate does not grant a landowner any additional property rights, id., and the 

 

9

In Slusser, objectors appealed the issuance of a nonconforming use certificate to a 

nearby landowner. The trial court affirmed the dismissal of the appeal as untimely, and this 

Court affirmed on different grounds. Specifically, we concluded that an application for a 

nonconforming use certificate is not an “application for development” under section 914.1 of the 

Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, added by the Act of 

December 21, 1988, P.L. 1329, 53 P.S. §10914.1 (“No person shall be allowed to file any 

proceeding with the board later than 30 days after an application for development, preliminary or 

final, has been approved . . . .”). We held that the issue of whether the appeal was timely was 

irrelevant and that, because the approval of the nonconforming use certificate did not grant the 

landowner any additional property rights, or authorize new development or construction, the 

zoning officer’s issuance of the certificate was not appealable under section 914.1 of the MPC.
15

absence of a certificate does not deprive landowner of his right to continue a lawful 

nonconforming use. TKO Realty, LLC v. Zoning Hearing Board of Scranton, 78 

A.3d 732 (Pa. Cmwlth. 2013). The purpose of a nonconforming use certificate is 

simply to document the existence of the nonconforming use. Slusser, 124 A.3d at 

774. Consequently, the failure to appeal from the terms of a certificate of 

nonconformance results only in a procedural disadvantage and not in a restriction 

or limitation of constitutionally protected property right. DoMiJo.

Here, while the Board purportedly recognized the legal insignificance 

of the certificate, it nevertheless failed to recognize that the Club’s preexisting 

lawful use of the property for Sunday racing was entitled to constitutional 

protection. After receiving a document that, on its face, deprived the Club of its 

lawful nonconforming use of the property on Sundays, the Club was forced to 

request a hearing, during which it presented evidence to establish that Sunday 

racing preceded the adoption of the Ordinance, see Board’s Finding of Fact No. 8, 

that such use expanded over time, and that Sunday racing is essential to the 

continued viability of the Club. See, e.g., R.R. at 62a-65a. In addition to arguing 

that the increase in Sunday races over time was a natural expansion of a lawful 

nonconforming use, the Club acknowledged the concerns expressed by its 

neighbors and represented that it would comply with all aspects of the Ordinance. 

(R.R. at 124a-25a.) Given this record, the Board erred in determining that the Club 

is not permitted to hold any races on Sunday, and the trial court erred in affirming 

the Board’s decision.

10

 

 

10 We do not address whether the Club’s present use of the property for Sunday racing 

falls within the natural expansion doctrine because the Board made no findings in this regard. 

Although the Club presented evidence concerning the existence and expansion of the Club’s 

(Footnote continued on next page...)
16

Accordingly, we reverse the trial court’s order and remand this matter 

to the trial court for further proceedings, which may include remand to the Board.

MICHAEL H. WOJCIK, Judge

 

(continued...)

nonconforming use of the property for Sunday races, the Board did not find, even in the 

alternative, that the use exceeded the bounds permitted under the natural expansion doctrine. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hunterstown Ruritan Club, :

: No. 1204 C.D. 2015

Appellant : 

:

v. :

:

Straban Township :

Zoning Hearing Board :

O R D E R

AND NOW, this 14th day of July, 2016, the order of the Court of 

Common Pleas of Adams County, dated June 12, 2015, is reversed, and the matter 

is remanded to the trial court for further proceedings consistent with the forgoing 

opinion. 

Jurisdiction relinquished.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hunterstown Ruritan Club, :

Appellant :

:

v. : No. 1204 C.D. 2015

: Submitted: February 19, 2016

Straban Township Zoning Hearing :

Board :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION BY

SENIOR JUDGE PELLEGRINI FILED: July 14, 2016

It is generally accepted that when an administrative determination is 

made, with reasons given, an appeal can be taken to an administrative agency with 

subsequent appeals allowed to trial courts and appellate courts. That determination, 

unless reversed on appeal, is final and cannot be collaterally attacked. Properly 

relying on DoMiJo, LLC v. McClain, 41 A.3d 967 (Pa. Cmwlth. 2012), the majority 

holds that an administrative determination embodied in a certificate of 

nonconformance1is not final, is not binding on the person who receives it, and 

 

1

Section 107 of the Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as 

amended, 53 P.S. §10107, defines a “Nonconforming use” as “a use, whether of land or of structure, 

which does not comply with the applicable use provisions in a zoning ordinance or amendment 

heretofore or hereafter enacted, where such use was lawfully in existence prior to the enactment of 

such ordinance or amendment, or prior to the application of such ordinance or amendment to its 

location by reason of annexation.”

(Footnote continued on next page...)
DRP - 2

because it is personal to the property owner that receives it, does not run with the 

land. Because I would overrule DoMiJo and hold that a certificate of 

nonconformance issued pursuant to the Municipalities Planning Code (MPC)2is final 

as to the zoning nonconformity of the property, I respectfully dissent.

DoMiJo is based on three points, which are:

 A certificate of nonconformance does not fix the 

nonconforming use of the property but is only a procedural 

advantage or disadvantage in court cases and does not 

deprive an owner of the right to other “lawful” 

nonconforming uses not applied for and not listed.

 A certificate of nonconformance does not run with 

the property but is personal to the person who applied for it.

 That because the right to continue a nonconforming 

use arises from constitutional protections and not from 

regulatory provisions, the nonconforming right cannot be 

 

(continued...)

The continuance of nonconforming uses under zoning ordinances is 

countenanced because it avoids the imposition of a hardship upon the 

property owner and because the refusal of the continuance of a 

nonconforming use would be of doubtful constitutionality. Even 

though zoning ordinances permit the continuance of nonconforming 

uses, it is the policy of the law to closely restrict such nonconforming 

uses and to strictly construe provisions in zoning ordinances which 

provide for the continuance of nonconforming uses. Nonconforming 

uses, inconsistent with a basic purpose of zoning, represent conditions 

which should be reduced to conformity as speedily as is compatible 

with the law and the Constitution.

Hanna v. Board of Adjustment of Borough of Forest Hills, 183 A.2d 539, 543 (Pa. 1962).

2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
DRP - 3

lost by some regulatory provision such as a certificate of 

nonconformance.

DoMiJo, 41 A.3d at 972-73.

Let us compare to see if these points are valid when compared with the 

statutory scheme that the General Assembly authorized the municipality to issue and 

a property owner to challenge a certificate of nonconformance.

A.

Section 613 of the MPC, 53 P.S. §10613, authorizes the municipality to 

establish a system to identify the nonconforming uses, i.e., a “census” of those uses 

and then provide for the registration of those uses so that all can know with certainty 

what the property can be used for. It provides:

Zoning ordinances may contain provisions requiring the 

zoning officer to identify and register nonconforming uses, 

structures and lots, together with the reasons why the 

zoning officer identified them as nonconformities.

As can be seen, this provision authorizes a systematic way for a 

municipality to identify all the nonconforming uses, structures and lots that exist, not 

just some of those uses that exist on the property. It provides for the identification of 

those uses to enable a municipality to administer and enforce the zoning ordinance 

regarding such uses as well as to better aid in planning, i.e., rezoning. A “fixed and 

final” certificate of nonconformity also enables future owners of the property as well 

as adjoining property owners to know what the nonconformity is and how the 
DRP - 4

property can be occupied to the same extent that they would know how the property 

could be occupied if it was in conformity with the zoning ordinance.

Moreover, nothing in Section 613 of the MPC even suggests that a 

determination leading to a certificate of nonconformance is not an adjudication but 

some procedural device to be used in some speculative court action. Nor does it 

create a system where a certificate of nonconformance is personal to each person who 

receives a certificate. Zoning is property based, not people based; it is irrelevant who 

owns the property, so when the zoning officer identifies the nonconformity, just like a 

variance, the certificate [and variance] runs with the property and not with the 

individual.

B.

The central flaw in DoMiJo is that a certificate of nonconformance is a 

regulatory device to take away a property owner’s nonconforming rights when it does 

no such thing. All that it does is allow the municipality to initially identify whether

the nonconformity of the property is constitutionally allowed to continue. If a 

property owner disagrees with that determination, under Section 909.1(a)(3) of the 

MPC, added by Section 87 of the Act of December 21, 1988, P.L. 1329, 53 P.S. 

§10909.1(a)(3), that determination can be appealed to the zoning hearing board. That 

section provides:

(a) The zoning hearing board shall have exclusive 

jurisdiction to hear and render final adjudications in the 

following matters:

(3) Appeals from the determination of the zoning 

officer, including, but not limited to, the granting or denial 
DRP - 5

of any permit, or failure to act on the application therefore, 

the issuance of any cease and desist order or the registration 

or refusal to register any nonconforming use, structure or 

lot.

Through this process set forth in the MPC, the property owner’s 

constitutional right to use the property for the nonconforming use is not taken away; 

instead, a certificate of nonconformance is used to determine what the property 

owner’s constitutionally protected nonconforming use is, with all the due process that 

the property owner is entitled to.

Accordingly for the foregoing reason, I respectfully dissent.

______________________________

DAN PELLEGRINI, Senior Judge