PA Northwestern Distributors Inc. v. Zoning Hearing Board
584 A.2d 1372 (1991)
Northwestern filed all the
proper paperwork to open a business in Moon Township Pennsylvania, then
proceeded to open an adult bookstore.
Three weeks later, the Moon
Township Zoning Board amended their zoning laws to impose severe
restrictions on adult bookstores.
The new ordinance said that
adult bookstores could only be located in certain zoning districts, and
Northwestern was not in such a district.
That made Northwestern a preexisting,
nonconforming use of the property.
The new ordinance gave
pre-existing adult bookstores like Northwestern only 90 days to come into
compliance with the law (basically move to a new location).
Using a time frame to force
compliance with a new regulation is known as an amortization of
Northwestern appealed the
decision to the Zoning Board, but the appeal was denied. Northwestern
Northwestern argued that the
amortization aspect of the new
ordinance was a violation of due process and a taking of property without just compensation.
The Zoning Board argued
that, under Sullivan v. Zoning Board of Adjustment (83 Pa. Commw. 228, 478 A.2d 912 (1984)), amortization
of nonconforming uses is a constitutional use of police power
as long as the provisions are reasonable.
The Zoning Board argued that
giving existing businesses a limited time frame to come into compliance
was not that much different than passing an ordinance to limit future
The Pennsylvania Supreme Court
reversed the decision of the Zoning Board.
The Pennsylvania Supreme
Court found that changing the zoning law and then telling lawful preexisting
nonconforming businesses to move is
"per se confiscatory and violative of the Pennsylvania
The Court felt that if the
Zoning Board were allowed to get away with this, then there is nothing
stopping them from getting rid of any business (or resident) they didn't
like by simply amortizing them out of existence.
In a concurring opinion, it
was argued that that amortization provisions weren't per se
unconstitutional, but they had to be reasonable, and Moon Township's wasn't reasonable because
it failed to provide adequate time for Northwestern to come into
Basically, the general rule is
that preexisting businesses/residences are grandfathered in when zoning
There are several ways that
a preexisting business can lose their ability to remain, including;
destruction of the business (like a fire) and abandonment of the
However, since the right to
maintain a nonconforming use runs with the land, it survives a change in
Some States do allow
nonconforming businesses to be amortized away, but the timeframe must be reasonable.
One could argue that, using
the Contract Law doctrine of reliance,
that Northwestern had relied on the zoning laws allowing them to continue
business, and therefore had a claim against the Zoning Board for changing
Compare this case to Village
of Euclid v. Ambler Realty Co. (272
U.S. 365 (1926)). In that case, Ambler hadn't yet built on the land and
got no compensation when the zoning law changed, but in this case, the
Court goes out of its way to compensate Northwestern, perhaps because they
had an existing business.
The courts may want to
encourage people to invest in property, and not let them worry that if
they do invest they could lose their investment if the zoning laws
change. But if they are just sitting on an empty lot they get no