Wednesday, August 29, 2012

Certificate of Nonconforming Use A Property Right?

DoMiJo, et. al v. McClain, et. al, 41 A.3d 967, 2012 Pa. Commw. LEXIS 118 (2012)
Frank Kosir, Jr., Esquire

This matter addressed the issue of whether a property owner who fails to re-register a non-conforming, preexisting use following its purchase of the real property on which that use is made loses the right to continue making that non-conforming, preexisting use.  In 2007, DoMiJo, Inc. purchased certain real property (“Property”) located at 1138 State Route 502 in Spring Brook Township (“Township”), Lackawanna County, Pennsylvania from Marlyn Benjamin (“Benjamin”).  Prior to the sale, Benjamin obtained a certificate of non-conforming use from the Township Zoning Officer confirming her use of the Property, situated in an R-1 Low Density Residential zoning district, for commercial purposes.  After taking title, DoMiJo continued to make similar use of the Property although it failed to re-register the non-conforming use within sixty (60) days of its purchase, as required by Township’s Zoning Ordinance (“Ordinance”).
In 2009, DoMiJo applied for a certificate of non-conforming use, and was denied due to its failure to re-register the use in accordance with the Ordinance.  DoMiJo did not appeal this denial, instead resubmitting its request to the Zoning Officer in 2010.  The Zoning Officer denied this request on the same basis, and the Township Zoning Hearing Board affirmed.  DoMiJo then appealed to the Lackawanna County Court of Common Pleas which reversed, concluding that DoMiJo’s mere failure to re-register the non-conforming use was insufficient for it to lose its right to continue using the Property for commercial purposes.
On appeal, our Commonwealth Court affirmed.  In issuing its ruling the court noted that a certificate of nonconforming use is not a property right but, rather, is merely a document that evidences the existence of the nonconforming use.  In this instance, the certificate of non-conforming use that Benjamin had obtained, together with other evidence in the record, plainly established that the Property had been used for commercial purposes prior to the enactment of the Ordinance.  Therefore, DoMiJo had the right to continue this non-conforming use, and its failure to re-register the use was insufficient for it to lose its rights.  The court further noted that there is no provision in the Ordinance advising that a property owner’s failure to re-register a non-conforming use would result in its losing the right to continue that use, and that such a provision would almost certainly not survive a constitutional challenge.
For additional information please contact Frank Kosir at

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