PA Northwestern Distributors, Inc. v. Zoning Hearing Board
526 Pa. 186, 584 A.2d 1372 (1991)
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Rule of Law:
A zoning ordinance that requires the amortization and discontinuance of a lawful, pre-existing nonconforming use is per se confiscatory and constitutes a taking of property without just compensation in violation of the Pennsylvania Constitution.
Facts:
- PA Northwestern Distributors, Inc. obtained all necessary permits to operate its business on leased premises in Moon Township.
- On May 4, 1985, PA Northwestern opened an adult book store.
- Four days later, on May 8, 1985, the Moon Township Board of Supervisors gave public notice of its intent to amend the zoning ordinance to regulate 'adult commercial enterprises.'
- On May 23, 1985, the Board of Supervisors adopted Ordinance No. 243, which imposed extensive location and operational restrictions on such enterprises.
- Section 805 of the ordinance mandated that any pre-existing, non-compliant business had a 90-day 'amortization' period to come into compliance with the new rules.
- PA Northwestern's book store was classified as an 'adult commercial enterprise' under the ordinance.
- The store's location did not and could not meet the new place restrictions, making compliance impossible.
Procedural Posture:
- The Zoning Officer of Moon Township notified PA Northwestern that it was in violation of Ordinance No. 243.
- PA Northwestern (appellant) appealed to the Zoning Hearing Board of the Township of Moon (appellee), challenging the validity of the amortization provision.
- The Zoning Hearing Board held a hearing and upheld the provision.
- PA Northwestern appealed the board's decision to the Court of Common Pleas of Allegheny County (trial court).
- The Court of Common Pleas dismissed the appeal without taking additional evidence.
- PA Northwestern (appellant) appealed to the Commonwealth Court of Pennsylvania (intermediate appellate court).
- The Commonwealth Court affirmed the trial court's order.
- The Supreme Court of Pennsylvania granted PA Northwestern's petition for allowance of appeal.
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Issue:
Does a zoning ordinance that requires the amortization and discontinuance of a lawful, pre-existing nonconforming use constitute a confiscatory taking of property without just compensation in violation of the Pennsylvania Constitution?
Opinions:
Majority - Larsen, J.
Yes. The amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative of the Pennsylvania Constitution. A lawful nonconforming use establishes a vested property right in the owner that cannot be abrogated or destroyed unless it is a nuisance, abandoned, or extinguished by eminent domain with just compensation. The effect of the amortization provision is to deprive the owner of the lawful use of their property, which amounts to a 'taking.' The court explicitly rejects the 'reasonableness' balancing test used in other jurisdictions, stating that if amortization were permitted, any lawful use, including a person's home, could be zoned out of existence without compensation, a result repugnant to the protections for vested property interests in the Commonwealth.
Concurring - Nix, C.J.
Yes. While the majority's result is correct in this case, its adoption of a per se rule against amortization is too restrictive. A reasonable amortization provision, which balances public gain against private loss by considering factors like the length of the period, the owner's investment, and the nature of the use, should be considered constitutional. However, the 90-day period in this ordinance is patently unreasonable and confiscatory because it is insufficient time for the owner to close the business, terminate contracts, find alternative income, or obtain a reasonable return on investment. Therefore, this specific provision is invalid.
Concurring-in-part-and-dissenting-in-part - McDermott, J.
Yes. The outcome is correct because a 90-day period is too short to eliminate a pre-existing use. However, the dissent disagrees with the majority's creation of a per se rule that pre-existing nonconforming uses are entirely beyond reasonable regulation for the health, safety, and morals of a community. A reasonable amortization period, consistent with a rational use of property, ought to be a constitutional possibility.
Analysis:
This decision establishes a strong, bright-line rule in Pennsylvania that is highly protective of vested property rights, setting it apart from the majority of jurisdictions that permit the 'amortization' of nonconforming uses if the phase-out period is deemed reasonable. By declaring amortization provisions per se unconstitutional, the court eliminated the need for a case-by-case balancing test, providing greater certainty to property owners. The ruling significantly limits a municipality's power to eliminate lawful but undesirable uses through zoning, forcing them to use eminent domain and provide just compensation if they wish to extinguish such uses.
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