Thursday, December 13, 2012

Zoning Issues - Right to use single-family dwelling for multi-family residential purposes?

Frank Kosir, Jr., Esquire
Salahuddin v. Zoning Hearing Board of West Chester, et. al, 2012 Pa. Commw. LEXIS 317 (2012)
This matter addressed the issue of whether a previous non-conforming use of a single-family residential dwelling as a rooming house vested the property owner with the right to use that dwelling for multi-family residential purposes.  In April of 1996, Amna  Salahuddin (“Salahuddin”) took title to a 3,679 square feet parcel of real property (“Property”) situated in the Borough of West Chester (“Borough”), Chester County (“County”), Pennsylvania.  The Property was located in the NC-2 Neighborhood Conservation District under the Borough Zoning Ordinance (“Ordinance), and erected thereon is a single-family, three-story, semi-detached dwelling (Dwelling”).  Up until 1992, the previous owner of the Property had resided on the first floor of the Dwelling, and rented the second and third floors as a rooming house.  The Property was acquired by PNC Bank in a 1992 mortgage foreclosure, at which time the rooming house use ceased.  At the time that Salahuddin took title to the Property, she was aware that the rooming house had ceased, and that the Dwelling was classified as a single-family residence.

After taking title to the Property, Salahuddin used the first floor of the Dwelling as a single-family residence, and made no use of the second or third floors.  In January of 2011, she submitted a zoning application to the Zoning Hearing Board of West Chester (“Board”) seeking a variance to utilize the Dwelling as a multi-family residence and, in support of her position, asserted that the rooming house use constituted a non-conforming, pre-existing use that had not been abandoned, thereby entitling her to use the Dwelling for multi-family purposes.  The Board denied Salahuddin’s application, and the trial court affirmed.

On appeal, our Commonwealth Court affirmed.  In issuing its ruling, the court pointed out that, as the foreclosing mortgage holder, PNC Bank did not have legal authority to abandon the non-conforming, pre-existing rooming house use during the time that it held title to the Property.  Therefore, at the time that Salahuddin took title, the rooming house use remained a legal non-conforming, pre-existing use.  However, once Salahuddin took title to the Property, she made no effort to use the Dwelling as a rooming house and, after holding title for five years, sought to use it as a multi-family use which, under the language of the Ordinance, is a wholly separate and distinct use from that of a rooming house.  As such, the proposed multi-family residential use would not constitute the continuation of the non-conforming, pre-existing rooming house use and, as Salahuddin had failed to establish that the continued use of the Dwelling as a single family residence would inflict a hardship upon her, she was not entitled to the requested variance relief.

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