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 A ppeal of: Easttown Township : Submitt ed: 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 bo undary 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 err ed by basing its decision on Spring Garden Civic Ass’n v. Bo ard of Adjustment of the City of Philadelphia , 617 A. 2 d 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. 20 18) (emphasis added).2 Benson Homes and Development, LLC (Applicant) is the equitable

own er of the Property which is approximately 7.8 acre s and is irregularly shaped,

situated at the intersection of Lancaster Avenue (U.S. Route 30) and Leopard Road
(with a dditional frontage along Potter Avenue and Walnut Street) in the Township

and identified as Chester County Tax Parcel No

. 55

- 2L

- 11. T he Property is located

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

three zon ing 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 P roperty situated in the VR District and the

remainder i n 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 no n

conforming 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

i n Section 455

- 24.A(2) of the Ordinance, which requires 5,000 square feet per
dwelling unit. H owever, 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, App licant filed an appli cation with the Township to
subdivide the Property (Application) , accompanied by a pr eliminary 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 th e zoning

district ’s requirements

. However, Lot 2 would continue to be nonconforming in the3

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

C ommission containing a review of the P lan. The Zoning Officer determined

, inter

alia , that the P lan 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 P lan 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 ser ve concurrently as the boundary line between the proposed

subdivided lots. Based upon this recommendation, Applicant prepared a revised
preliminary s ubdivision p lan on June 28, 2016 (Revised Plan)

, incorporating this

amendment.
The Zoning Officer issued a memorandum review of the R evised P lan
on July 26, 2016. Upon further consideration, t he Zoning Officer concluded that the
boundary line between the VR and VB Districts as set forth in the Revised P lan was

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

d etermined the boundary line in the Revised P lan should be moved approximately 32

fe et to the north

. Moreover, in this second review, t he Zoning Officer objected to the

subdivision’s legality. He resolv ed that d ue to the P roperty ’s existing

nonconformance with in 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

. T he ZHB issu ed 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 d ecision
uph o ld ing the Zoning Officer’ s determination that the proposed subdivi sion of the

P roperty 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

curre nt Ordinance; (2) the Or dinance prohibits the reduction of a nonconforming lot ’s

size; and (3) the VB D istrict portion of the lot should be included when measuring the
existing lot size. Applicant rejoins : (1) the subdivision cre ates a new lot compri sed

c ompletely of vacant land within the VB D istrict ; (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 V R D is trict be calculated sol el y on the lot area within the VR D istrict

.

Initially, Section 455

- 24 of the Or dinance provides: The following area and bulk regulations shall apply within all Village of Berwyn Districts:

A. Minimum lot size (net lot area).

(1) Th ere 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 tria l court’s affirmance of the ZHB’s boundary line demarcation.

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

Reproduced R ecord (R.R.) at 11. Section 455

- 132 of the Ordinance provides the
following definitions:

LOT
A designated pa rcel, 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

- o f

- way, utility easements and flag lot access strips, easements for fuel or communications
tran smission, whether below or above ground, that do not exclusively serve the lot traversed, very steep slopes and 5 0 % 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] lawful6 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 5 38, 545
(Pa. Cmwlth. 2016) (citations omitted).

The Township cites McCarry v. Haverford To w nship 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 a n unnecessary hardship

, which he failed to do. Here, Applicant is not seeking a variance, 4 nor doe s he need
one, as he is merely seeking to subdivide the Property at the V B /V R District
boundary. Accordingly, McCarry is inapposite.

The Township also relies upon Guido v. Township of Sandy , 880 A.2d
1220 (Pa. 2005)

, to su bstantiate its argument . In G uido

, the issue before o ur 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

- squar e

- f oo t lot and the nonconforming condition existed

before the enactment of Section 455

- 24 of the Ordinance which requires a m inimum

lot size o f 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 L ot 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 th e nonconformity. See Section 455

- 13 of the
Ordinance (“n o 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 th at 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 w as included in the calculation

and thus prohibited the subdivision. The t rial court, however, ruled that “t he
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 lan d. ” 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 lando wner 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 c ondition was due to the establishment of
the Village District. More specifically, the portion of the Property in the VR District8

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 t he 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

. Accor dingly , 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, JudgeIN THE COMMONWEALTH COU RT 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 , 201 9

, the Chester County Common
Pleas Court’s June 14, 2018 order is affirmed.

___________________________ ANNE E. COVEY, Judge