We are often asked by clients as to the ability to convert a property used for one type of non-conforming use to a different type of non-conforming use. The answer to this type of question can be very fact intensive and vary from one municipality to the next depending upon the provisions in the municipality's Zoning Ordinance as to the right to convert non-conforming uses. Many Zoning Ordinances allow a property owner to convert from one non-conforming use to a less intensive non-conforming use by special exception or conditional use, subject to proving the satisfaction of certain requirements. This was the factual situation in the recent Commonwealth Court case of 4154 Roosevelt Street, LLC v. ZHB of the Township of Whitehall.
In Roosevelt, the applicant desired to convert a vacant and obsolete industrial building, formerly used as a manufacturing plant in the garment industry, to apartments. After a long and torturous case history, the Commonwealth Court reversed a decision of the Trial Court and determined that the applicant had presented sufficient testimony in the record to substantiate a change as to the use of an existing building from manufacturing to apartments. Specifically, the Court found that the proposed nonconforming use is less detrimental to the neighborhood, surroundings and public welfare than the previous use of the site and does not substantially increase traffic congestion on the nearby streets.
The case provides a good "road map" as to the type of testimony an applicant should present to the Zoning Hearing Board to convert one non-conforming use to a different non-conforming use.
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