United States: When Does A Parking Lot Stop Being A ‘Parking Lot'?

Individuals and companies involved in the use, purchase or sale of real estate with legal, nonconforming uses may confront thorny questions related to abandonment and/or change of the nonconforming use. For example, should a landlord be concerned when a tenant of a property with a legal, nonconforming use leaves and the landlord is unable to find a replacement for some time? Should a potential buyer of a property with a legal, nonconforming use purchase the property if the potential buyer's business is slightly different from the current user of the property?

While the answers to these and other questions are certainly fact-dependent, a recent opinion from the Commonwealth Court of Pennsylvania definitely provides insight and guidance.

In Itama Development Associates, LP v. Zoning Hearing Board of the Township of Rostraver (No. 985 C.D.2015, - A.3d -, 2016 WL 72822 (Pa. Cmmw. Ct. 2016)), the court addressed the zoning concepts of abandonment and expansion of a legal, nonconforming use of a property in Rostraver Township. Prior to the enactment of the township's zoning ordinance, the Belle Vernon Area School District had used a garage on the property for the storage, fueling, parking and maintenance of its buses and vehicles. An ordinance enacted in 1970 placed the property in the township's Retail Business District, but the school district continued to use the property for the same purposes, and such use was expressly permitted as a legal, nonconforming use under the ordinance.

In 2009, the school district purchased a new parcel of land for the fueling and maintenance of its vehicles. It discontinued its long-term storage of vehicles at the property, but continued to use the property for refueling and maintenance between the hours of 6 a.m. and 5 p.m. during the academic year, with infrequent weekend and evening activity. Eventually, in April 2013, Itama Development Associates, LP purchased the property and continued to allow the school district to use the property for refueling and maintenance. In July 2013, the school district ended its use of the property.

In April 2014, Itama found a potential new tenant that desired to use the property for its business of providing fresh water to gas well drillers and operators. Itama subsequently applied for an occupancy permit for a continuation of the legal, nonconforming use at the property. After the township's zoning officer initially refused to issue the permit, claiming the proposed use had been abandoned in 2009, the township's zoning board approved Itama's request for a permit to continue the use of the property as a vehicle garage. Similar to the school district's use of the property post-2009, Itama stated to the zoning board that the potential new tenant would use the property to refuel trucks and perform basic, vehicular maintenance. Though the deal between Itama and the potential new tenant fell through, Itama soon leased the property to another tenant that operated a commercial trucking business, serving the natural gas drilling industry.

Soon after, following complaints from nearby residents about noise and the hours of operations, the zoning officer issued zoning use violations to Itama and the tenant. Itama appealed the violations to the zoning board, arguing they were improper since the tenant was using the property in accordance with the permit Itama had obtained. After a hearing, the board determined the tenant was using the property for: the parking of vehicles, long- and short-term storage of roll-off boxes and other container vessels (sometimes containing residual waste from drilling activity), and the construction and use of a containment area to prevent waste from the containers from reaching the ground. Moreover, the tenant was using the property during late night and early morning hours.

First, the zoning board found that the school district had abandoned its use of the property for parking vehicles in 2009 when it discontinued its long-term storage of vehicles at the property, which was more than 12 months before the tenant began to park vehicles at the property. The zoning board noted that the ordinance stated a nonconforming use is considered abandoned when the use has been discontinued for a period of 12 months. Moreover, the zoning board also concluded the tenant's use of the property was an impermissible change in the legal, nonconforming use at the property, determining the tenant was engaged in activity at the property different from the school district.

On appeal, the Court of Common Pleas of Westmoreland County agreed with the zoning board that the school district abandoned its use of the property for parking vehicles in 2009. The trial court held that the only permissible use of the property was for the fueling and minor maintenance of vehicles, not for a parking lot or storage center, and therefore the tenant's dissimilar use of the property was impermissible. Itama appealed this decision to the Commonwealth Court of Pennsylvania.

Among the arguments Itama made, the two that resonated with the Commonwealth Court were the arguments against the abandonment and change of the legal, nonconforming use.

Contrary to the determinations of the zoning board and the trial court, the Commonwealth Court held there was clear evidence that the use of the property for the parking of vehicles had not stopped in 2009 but rather continued through July 2013. The Commonwealth Court noted the school district continued to use the property between 2009 and 2013 for the maintenance and fueling of its vehicles, a function which inherently included the parking of vehicles on the property. The Commonwealth Court seemed to take the view that the primary purpose of situating vehicles on the property did not need to be for parking, but rather that a use which included parking was sufficient. Because the tenant's use of the property for maintenance and fueling — which includes parking — began less than 12 months after the school district's use of the property for parking had stopped, the court held that the ordinance's definition of abandonment had not been met.

Rejecting the argument that the tenant's use of the property was fundamentally different from the school district's use, the Commonwealth Court invoked the doctrine of "natural expansion," which permits a property user to develop or expand upon an existing, legal, nonconforming use without the user's being considered to have impermissibly changed the use of the property. Whether a certain use of property is a natural expansion or change is fact specific, but the Commonwealth Court noted that an increase in intensity of use does not necessarily constitute a new or different use. After parsing the facts of the case, the Commonwealth Court concluded that the tenant's use of the property, while definitely an increase in intensity, was not a different use. The school district had parked vehicles at the property; the tenant was parking vehicles at the property. The school district had vehicles coming to and from the property; the tenant had vehicles coming to and from the property. Though the tenant was "incidentally" storing boxes and containers at the property, this incidental storage was not sufficiently different from the school district's use of the property as a vehicle garage to be deemed a different or prohibited expansion of the use of the property.

The key takeaway from this case is that increasing the intensity of use of a legal, nonconforming property is not necessarily prohibited. However, at some point, the increased use can "cross the line" and become a prohibited expansion, where the increased use fundamentally alters the use of the property. As one can see from the differing conclusions of the zoning board/trial court and the Commonwealth Court, however, the line between natural expansion and a change in use is not always clear.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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