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.
• One provision of the new ordinance gave pre-existing adult bookstore 90 days to come into compliance with the law. A timeframe Northwestern could not hope to meet.
• This use of a time frame to come into compliance with a new regulation is known as an amortization of nonconforming uses.
• The new ordinance said that adult bookstores could only be located in certain zoning districts, and Northwestern was not in such a district.
• Northwestern appealed the decision to the Zoning Board, but the appeal was denied.
• Northwestern sued on the basis 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 used the reasoning of Sullivan v. Zoning Board of Adjustment (83 Pa. Commw. 228, 478 A.2d 912 (1984)), which held that provisions for the amortization of nonconforming uses are constitutional exercises of police power as long as they are reasonable.
• The Zoning Board argued that passing an ordinance giving existing businesses a limited time frame to come into compliance was not that much different than passing an ordinance to limit future use.
• The Pennsylvania Supreme Court reversed the decision of the Zoning Board.
• The amortization and discontinuance of a lawful preexisting nonconforming use is per se confiscatory and violative of the Pennsylvania Constitution.
• 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, one Justice suggested 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 compliance.
• Basically, the general rule is that preexisting businesses/residences are grandfathered in when zoning laws change.
• 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 property.
• However, since the right to maintain a nonconforming use runs with the land, it survives a change in ownership.
• However, some jurisdictions do allow for amortization, 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 the ordinance.
• Compare this case to Village of Euclid v. Ambler Realty Co. In that case, Ambler hadn't built on the land and they get no compensation, but in this case, the Court goes out of its way to compensate Northwestern, perhaps because they had an existent 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 sympathy.