IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Benson Homes and Development, LLC :

:

v. :

:

Easttown Township Zoning Hearing :

Board and Easttown Township :

: No. 984 C.D. 2018

Appeal of: Easttown Township : Submitted: March 14, 2019

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: April 2, 2019

Easttown Township (Township) appeals from the Chester County

Common Pleas Court’s (trial court) June 14, 2018 order reversing the Township 

Zoning Hearing Board’s (ZHB) decision prohibiting the proposed subdivision of the 

property located at 15 Leopard Road, Berwyn, Pennsylvania (Property) and affirming 

the ZHB’s boundary line demarcation. The sole issue before this Court is whether 

the ZHB properly prohibited the existing lot’s subdivision where it resulted in a new 

nonconforming lot’s creation and/or improperly reduced an existing nonconforming 

lot’s size.

1 After review, we affirm.

 

1 The Township also argues on appeal that the trial court erred by basing its decision on 

Spring Garden Civic Ass’n v. Board of Adjustment of the City of Philadelphia, 617 A.2d 61 (Pa. 

Cmwlth. 1993), appeal dismissed, 649 A.2d 657 (Pa. 1994). See Township Br. at 4, 10, 21-24. 

However, “[i]n a land use appeal where the trial court does not take additional evidence, such as 

here, our review is limited to determining whether the ZHB abused its discretion or 

committed an error of law.” Fowler v. City of Bethlehem Zoning Hearing Bd., 187 A.3d 287, 294

n.8 (Pa. Cmwlth. 2018) (emphasis added).
2

Benson Homes and Development, LLC (Applicant) is the equitable

owner of the Property which is approximately 7.8 acres and is irregularly shaped, 

situated at the intersection of Lancaster Avenue (U.S. Route 30) and Leopard Road 

(with additional frontage along Potter Avenue and Walnut Street) in the Township 

and identified as Chester County Tax Parcel No. 55-2L-11. The Property is located 

in the Berwyn Village Districts (Village District). The Village District is divided into 

three zoning districts - Village Business (VB), Village Transition (VT), and Village 

Residential (VR). The Property, due to the establishment of the Village District, is 

split-zoned, with the majority of the Property situated in the VR District and the

remainder in the VB District. 

At the time the Village District was established, the Property had already 

been improved with a 133-unit apartment complex, known as Trinity House, which 

lies entirely in the VR District portion of the Property. Trinity House is a nonconforming use, as it does not comply with the VR District’s use regulations, found 

in Section 455-23 of the Township Zoning Ordinance (Ordinance). Moreover, it does 

not comply with the VR District’s minimum lot size area and bulk regulation set forth 

in Section 455-24.A(2) of the Ordinance, which requires 5,000 square feet per

dwelling unit. However, pursuant to Section 455-24.A(1) of the Ordinance, there is 

no minimum lot size regulation in the VB District. 

On June 1, 2016, Applicant filed an application with the Township to

subdivide the Property (Application), accompanied by a preliminary subdivision plan 

dated May 31, 2016 (Plan). The Plan showed that the portion of the Property situated 

in the VB District would be subdivided into a new lot (Lot 1), with the remainder, 

including the Trinity House and all its associated improvements, forming a new lot

located entirely in the VR District (Lot 2). As there is no minimum lot size 

regulation in the VB District, Lot 1 would be in full conformity with the zoning 

district’s requirements. However, Lot 2 would continue to be nonconforming in the 
3

VR District. On June 24, 2016, the Township’s Zoning Officer Eugene C. Briggs, Jr.

(Zoning Officer) issued an interoffice memorandum to the Township’s Planning 

Commission containing a review of the Plan. The Zoning Officer determined, inter 

alia, that the Plan properly depicted the boundary between the two zoning districts on 

the Property pursuant to Section 455-10.C of the Ordinance. However, he concluded 

that the Plan did not precisely divide the Property into proposed Lot 1 and Lot 2 

along that zoning district boundary, placing a sliver of proposed Lot 1 in the VR 

District. The Zoning Officer recommended that the boundary line between the 

zoning districts serve concurrently as the boundary line between the proposed 

subdivided lots. Based upon this recommendation, Applicant prepared a revised 

preliminary subdivision plan on June 28, 2016 (Revised Plan), incorporating this 

amendment.

The Zoning Officer issued a memorandum review of the Revised Plan 

on July 26, 2016. Upon further consideration, the Zoning Officer concluded that the 

boundary line between the VR and VB Districts as set forth in the Revised Plan was 

erroneous. Attaching an inset of the Township’s zoning map, the Zoning Officer 

determined the boundary line in the Revised Plan should be moved approximately 32 

feet to the north. Moreover, in this second review, the Zoning Officer objected to the

subdivision’s legality. He resolved that due to the Property’s existing 

nonconformance within the VR District’s area and bulk requirements, Lot 2’s

nonconformity would increase because of the reduced total lot area. The Zoning 

Officer found that the subdivision would violate Sections 455-13.A, 14.0 and 124.B 

of the Ordinance and denied the Application therefor. 

Applicant filed an appeal to the ZHB from the Zoning Officer’s

determination on August 9, 2016. The ZHB held a hearing on November 2, 2016, 

and denied the appeal on December 7, 2016. The ZHB issued a written decision on 

December 14, 2016. Applicant appealed from the ZHB’s decision to the trial court. 
4

On June 14, 2018, the trial court reversed the portion of the ZHB’s decision 

upholding the Zoning Officer’s determination that the proposed subdivision of the 

Property was prohibited, and affirmed the portion of the ZHB’s decision regarding 

the Zoning Officer’s zoning district boundary line demarcation.

2

 The Township 

appealed to this Court. 

The Township argues that the ZHB properly prohibited the existing lot’s 

subdivision where it resulted in a new nonconforming lot’s creation and/or 

improperly reduced an existing nonconforming lot’s size.

3

 Specifically, the 

Township argues: (1) the proposed subdivision creates a nonconforming lot under the 

current Ordinance; (2) the Ordinance prohibits the reduction of a nonconforming lot’s

size; and (3) the VB District portion of the lot should be included when measuring the 

existing lot size. Applicant rejoins: (1) the subdivision creates a new lot comprised 

completely of vacant land within the VB District; (2) the proposed subdivision does 

not increase the extent of the existing nonconformities nor create a new 

nonconforming lot; and (3) the Ordinance expressly requires that the permitted 

density in the VR District be calculated solely on the lot area within the VR District.

Initially, Section 455-24 of the Ordinance provides:

The following area and bulk regulations shall apply within 

all Village of Berwyn Districts:

A. Minimum lot size (net lot area).

(1) There is no minimum lot size in the VB and VT 

Districts.

(2) Minimum lot size in the VR District is 5,000 square feet 

per dwelling unit.

 

2 No appeal was taken from the trial court’s affirmance of the ZHB’s boundary line 

demarcation.

3 The ZHB filed a joinder brief, wherein, it joined in the Township’s brief.
5

Reproduced Record (R.R.) at 11. Section 455-132 of the Ordinance provides the 

following definitions:

LOT

A designated parcel, lot or area of land established by a plat 

or otherwise as permitted by law and to be used, developed 

or built upon as a unit.

A. LOT AREA, GROSS

The area of land contained within the limits of the legally 

described property lines bounding the lot.

B. LOT AREA, NET

The area of land contained within the limits of the legally 

described property lines bounding the lot, exclusive of any 

street or railroad rights-of-way, utility easements and flag 

lot access strips, easements for fuel or communications 

transmission, whether below or above ground, that do not 

exclusively serve the lot traversed, very steep slopes and 

50% of moderately steep slopes, above[-]ground 

storm[]water management basins greater than 18 inches in 

depth that do not exclusively serve the lot, below-ground

storm[]water management basins, and areas within riparian 

buffer zones, along with the natural resources that they 

protect, provided that at least 50% of the required minimum 

lot area be contiguous land lying outside of these 

exclusions.

R.R. at 15. The law is well settled:

A lawful nonconforming use is a use that predates the 

enactment of a prohibitory zoning restriction, and the right 

to continue a legal nonconforming use is entitled to the 

constitutional protection of due process. In Pennsylvania 

Northwest Distributors, Inc. v. Zoning Hearing Board of 

Moon Township, . . . 584 A.2d 1372, 1375 ([Pa.] 1991), 

[our Supreme C]ourt 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 [Article I, Section 1 of the 

Pennsylvania Constitution]. Thus, ‘[a] lawful 
6

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.’ [Northwest 

Distributors,] 584 A.2d at 1375. 

Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., 143 A.3d 538, 545 

(Pa. Cmwlth. 2016) (citations omitted).

The Township cites McCarry v. Haverford Township Zoning Hearing 

Board, 113 A.3d 381 (Pa. Cmwlth. 2015), to support its position. However, McCarry 

involved a zoning application for a dimensional variance to permit the applicant to 

subdivide a lot which contained a nonconforming building in violation of the 

applicable ordinance. Thus, the applicant had to show an unnecessary hardship, 

which he failed to do. Here, Applicant is not seeking a variance,4 nor does he need 

one, as he is merely seeking to subdivide the Property at the VB/VR District 

boundary. Accordingly, McCarry is inapposite. 

The Township also relies upon Guido v. Township of Sandy, 880 A.2d 

1220 (Pa. 2005), to substantiate its argument. In Guido, the issue before our Supreme 

Court was whether the fact that the applicant leased the property with an option to 

buy before the enactment of the ordinance prohibiting the sale, made the sale after the 

ordinance a permissible nonconforming condition. The Guido Court held that it did 

not. The date the applicant exercised the option controlled, not the date he obtained 

the option. Here, the nonconforming condition existed before the Ordinance was 

enacted. Thus, Guido is distinguishable from the case at bar.

In the instant matter, it is undisputed that the Property contained 133 

dwelling units on a 250,429-square-foot lot and the nonconforming condition existed 

before the enactment of Section 455-24 of the Ordinance which requires a minimum 

lot size of 5,000 square feet per dwelling unit in the VR District, i.e., a 665,000-

 

4

In the instant case, Applicant withdrew its variance request without prejudice.
7

square-foot lot. The Revised Plan divides the Property at the VB/VR District 

boundary. Thus, Lot 1 is a vacant lot and Lot 2 contains the nonconforming 

condition. At issue before the ZHB was whether the nonconforming lot size

calculation includes the portion of the Property exclusively contained in the VR 

District or the entire Property. Because the subdivision creates a new lot, it is not 

permitted if the subdivision enlarges the nonconformity. See Section 455-13 of the 

Ordinance (“no new lot shall be created unless in conformity with all of the 

appropriate regulations”). Consequently, if only the VR District portion is used, the 

subdivision is permitted.

The ZHB determined that because the Ordinance defined lot as “[t]he 

area of land contained within the limits of the legally described property lines 

bounding the lot[,]” R.R. at 15, the entire Property was included in the calculation 

and thus prohibited the subdivision. The trial court, however, ruled that “the 

proposed subdivision does not affect in any way the portion of the Property in the VR 

District. Be it intact or subdivided, the total area of the Property that lies within the 

VR District will not change regardless of whether the Property is subdivided.” Trial 

Ct. Op. at 6-7. This Court agrees with the trial court.

“[P]ermissive terms in zoning ordinances should be construed

expansively, so as to afford the landowner the broadest possible use and enjoyment of 

his land.” Bakerstown Container Corp. v. Richland Twp., 500 A.2d 420, 421 (Pa. 

1985); see also Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840 

A.2d 484, 491 (Pa. Cmwlth. 2004) (“[O]rdinances are to be construed expansively, 

affording the landowner the broadest possible use and enjoyment of its land. 

Undefined terms are given their plain meaning, and any doubt is resolved in favor of 

the landowner and the least restrictive use of the land.”) (citation omitted).

The Property’s nonconforming condition was due to the establishment of

the Village District. More specifically, the portion of the Property in the VR District 
8

was not compliant with Section 455-24.A(2) of the Ordinance. As that portion of the 

Property will not change as a result of the proposed subdivision, neither will the 

extent of the nonconforming condition – the proposed subdivision will maintain the 

exact ratio of lot area within the VR District per dwelling unit, and, thus, retain the 

precise extent of the nonconformity. Accordingly, the trial court properly reversed 

the ZHB’s decision prohibiting the proposed subdivision.

For all of the above reasons, the trial court’s order is affirmed.

 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Benson Homes and Development, LLC :

:

v. :

:

Easttown Township Zoning Hearing :

Board and Easttown Township :

: No. 984 C.D. 2018

Appeal of: Easttown Township :

O R D E R

AND NOW, this 2

nd day of April, 2019, the Chester County Common 

Pleas Court’s June 14, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge