PA Northwestern Distributors, Inc. v. Zoning Hearing Board

Citation526 Pa. 186, 584 A.2d 1372, 1991 Pa. 8 A.L.R.5th 970

Brief Fact Summary. The Appellant, PA Northwestern Distributors (Appellant), opened an adult bookstore. Twenty four days later, the Township adopted an Ordinance that imposed restrictions on the location and operation of “adult commercial enterprises.” The ordinance contained a provision requiring pre-exiting business to come into compliance within a 90 day grace period.

Synopsis of Rule of Law. An ordinance requiring termination of lawful pre-existing uses was confiscatory per se and unconstitutional as the loss of use of property without just compensation.

Facts. An ordinance contained an amortization provision which required an enterprise with a pre-existing use that conflicted with the new restrictions to come into compliance within 90 days. An adult bookstore was located within an area not designated for adult commercial enterprise under the new ordinance. Essentially, the store had to vacate in 90 days. The township began the process to amend the initial ordinance just four days after the adult bookstore opened.

Issue. Does a pre-existing use constitute a vested property interest that cannot be taken away without just compensation?

Held. Requirement that pre-existing use cease within a specified period of time was per se an unconstitutional taking of a vested property interest without just compensation.
Concurrence. Chief Justice Nix (J. Nix) did not think that any provision for amortization of nonconforming use was per se confiscatory and unconstitutional. J. Nix would review consideration of a more reasonable amortization (more adequate time to conform), but thought the ordinance here at issue was not reasonable and therefore was confiscatory and unconstitutional.

Points of Law - for Law School Success

Petitioner's business had been established at its present location long before the passing of the zoning ordinance and was actively conducted at the time the ordinance went into effect; accordingly, as the property was then used for lawful purposes, the city was without power to compel a change in the nature of the use, or prevent the owner from making such necessary additions to the existing structure as were needed to provide for its natural expansion and the accommodation of increased trade, so long as such additions would not be detrimental to the public welfare, safety and health.

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Discussion. There is a slippery slope if any use declared to be nonconforming could be amortized out of existence without just compensation. The Court points out that any property owner could lose the use of his property, a vested property right, without just compensation.

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