Brendan P. Burke, Esquire

Lawfully Non-Conforming Properties Vest Rights in their Owners.

When applying to local governing bodies for building, land development or other required approvals, property owners sometimes learn that their properties, or uses and structures located thereon, are classified as "non-conforming." Upon hearing that term for the first time, property owners may fear their property is "out of code," or is in some way in violation of the law. This is not the case.

A non-conforming use is any property, activity or structure which came into existence prior to a zoning restriction applicable to it which violates that restriction. The Pennsylvania Supreme Court has held that the owner of property to which a lawful non-conforming use is attached "enjoys a vested property right" which cannot be abrogated or destroyed unless it is a nuisance, is abandoned, or is extinguished by eminent domain.

The rationale for protecting non-conforming uses and structures finds its root in constitutional protections: a use or structure lawfully established that becomes non-compliant and "unlawful" as a result of later-passed ordinances might, in certain circumstances, constitute an unlawful taking by local government. Therefore, a property, use or structure that is lawful at the time of creation is protected from later, more restrictive ordinances.

The natural, logical corollary of protecting lawfully established uses and structures is that those that were unlawful under then-governing regulations do not receive the same protections. A use must have been lawful in order to become non-conforming; otherwise, the enactment of an ordinance regulating a use would have the effect of validating pre-existing illegality. Accordingly, it is incumbent upon the party asserting the existence of a non-conforming use to prove that the use lawfully pre-dated the ordinance involved.

Once established, the lawful non-conformity may continue unless and until it is extinguished by eminent domain, declared a nuisance, or abandoned. In most instances, it will be clear when this property right has been extinguished by eminent domain or by virtue of being declared a nuisance. Whether the lawful non-conformity has been "abandoned" is sometimes less clear. A party asserting an abandonment of the lawfully non-conforming use must meet its burden to establish evidence of the property owner's intent to abandon the use and then implementation of that intent, i.e., actual abandonment. The Pennsylvania Supreme Court has clarified that abandonment of a non-conforming use cannot be established by mere proof of the failure to use the property for a time or of a temporary use of the property not inconsistent with an intention to use it for the original purpose. A well-advised property owner is unlikely to give away rights he or she holds to property by knowingly abandoning them. Accordingly, it is best to consult with legal counsel prior to engaging in any activity that may result in an abandonment.

The body of case law regarding non-conforming property uses and structures in Pennsylvania is vast and sometimes quite complex. Due to the variable property rights involved, it is best to seek legal counsel regarding the ramifications and consequences of proposed activities or changes to structures and properties, particularly those that have been in existence for some years. The key to maintaining and, in certain circumstances, expanding the lawfully non-conforming use of your property is to recognize that the potentially foreboding term "non-conforming" can, in fact, be quite the opposite: Your lawfully non-conforing property, use or structure may provide you with certain valuable rights that you should strive to protect and maintain.

MacElree Harvey
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West Chester, PA 19381–0660
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