                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Benson Homes and Development, LLC :
                                  :
                  v.              :
                                  :
Easttown Township Zoning Hearing  :
Board and Easttown Township       :
                                  :               No. 984 C.D. 2018
Appeal of: Easttown Township      :               Submitted: March 14, 2019


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge (P.)
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: April 2, 2019

              Easttown Township (Township) appeals from the Chester County
Common Pleas Court’s (trial court) June 14, 2018 order reversing the Township
Zoning Hearing Board’s (ZHB) decision prohibiting the proposed subdivision of the
property located at 15 Leopard Road, Berwyn, Pennsylvania (Property) and affirming
the ZHB’s boundary line demarcation. The sole issue before this Court is whether
the ZHB properly prohibited the existing lot’s subdivision where it resulted in a new
nonconforming lot’s creation and/or improperly reduced an existing nonconforming
lot’s size.1 After review, we affirm.



       1
          The Township also argues on appeal that the trial court erred by basing its decision on
Spring Garden Civic Ass’n v. Board of Adjustment of the City of Philadelphia, 617 A.2d 61 (Pa.
Cmwlth. 1993), appeal dismissed, 649 A.2d 657 (Pa. 1994). See Township Br. at 4, 10, 21-24.
However, “[i]n a land use appeal where the trial court does not take additional evidence, such as
here, our review is limited to determining whether the ZHB abused its discretion or
committed an error of law.” Fowler v. City of Bethlehem Zoning Hearing Bd., 187 A.3d 287, 294
n.8 (Pa. Cmwlth. 2018) (emphasis added).
             Benson Homes and Development, LLC (Applicant) is the equitable
owner of the Property which is approximately 7.8 acres and is irregularly shaped,
situated at the intersection of Lancaster Avenue (U.S. Route 30) and Leopard Road
(with additional frontage along Potter Avenue and Walnut Street) in the Township
and identified as Chester County Tax Parcel No. 55-2L-11. The Property is located
in the Berwyn Village Districts (Village District). The Village District is divided into
three zoning districts - Village Business (VB), Village Transition (VT), and Village
Residential (VR). The Property, due to the establishment of the Village District, is
split-zoned, with the majority of the Property situated in the VR District and the
remainder in the VB District.
             At the time the Village District was established, the Property had already
been improved with a 133-unit apartment complex, known as Trinity House, which
lies entirely in the VR District portion of the Property. Trinity House is a non-
conforming use, as it does not comply with the VR District’s use regulations, found
in Section 455-23 of the Township Zoning Ordinance (Ordinance). Moreover, it does
not comply with the VR District’s minimum lot size area and bulk regulation set forth
in Section 455-24.A(2) of the Ordinance, which requires 5,000 square feet per
dwelling unit. However, pursuant to Section 455-24.A(1) of the Ordinance, there is
no minimum lot size regulation in the VB District.
             On June 1, 2016, Applicant filed an application with the Township to
subdivide the Property (Application), accompanied by a preliminary subdivision plan
dated May 31, 2016 (Plan). The Plan showed that the portion of the Property situated
in the VB District would be subdivided into a new lot (Lot 1), with the remainder,
including the Trinity House and all its associated improvements, forming a new lot
located entirely in the VR District (Lot 2).      As there is no minimum lot size
regulation in the VB District, Lot 1 would be in full conformity with the zoning
district’s requirements. However, Lot 2 would continue to be nonconforming in the
                                           2
VR District. On June 24, 2016, the Township’s Zoning Officer Eugene C. Briggs, Jr.
(Zoning Officer) issued an interoffice memorandum to the Township’s Planning
Commission containing a review of the Plan. The Zoning Officer determined, inter
alia, that the Plan properly depicted the boundary between the two zoning districts on
the Property pursuant to Section 455-10.C of the Ordinance. However, he concluded
that the Plan did not precisely divide the Property into proposed Lot 1 and Lot 2
along that zoning district boundary, placing a sliver of proposed Lot 1 in the VR
District.   The Zoning Officer recommended that the boundary line between the
zoning districts serve concurrently as the boundary line between the proposed
subdivided lots. Based upon this recommendation, Applicant prepared a revised
preliminary subdivision plan on June 28, 2016 (Revised Plan), incorporating this
amendment.
             The Zoning Officer issued a memorandum review of the Revised Plan
on July 26, 2016. Upon further consideration, the Zoning Officer concluded that the
boundary line between the VR and VB Districts as set forth in the Revised Plan was
erroneous. Attaching an inset of the Township’s zoning map, the Zoning Officer
determined the boundary line in the Revised Plan should be moved approximately 32
feet to the north. Moreover, in this second review, the Zoning Officer objected to the
subdivision’s legality.     He resolved that due to the Property’s existing
nonconformance within the VR District’s area and bulk requirements, Lot 2’s
nonconformity would increase because of the reduced total lot area. The Zoning
Officer found that the subdivision would violate Sections 455-13.A, 14.0 and 124.B
of the Ordinance and denied the Application therefor.
             Applicant filed an appeal to the ZHB from the Zoning Officer’s
determination on August 9, 2016. The ZHB held a hearing on November 2, 2016,
and denied the appeal on December 7, 2016. The ZHB issued a written decision on
December 14, 2016. Applicant appealed from the ZHB’s decision to the trial court.
                                          3
On June 14, 2018, the trial court reversed the portion of the ZHB’s decision
upholding the Zoning Officer’s determination that the proposed subdivision of the
Property was prohibited, and affirmed the portion of the ZHB’s decision regarding
the Zoning Officer’s zoning district boundary line demarcation.2 The Township
appealed to this Court.
             The Township argues that the ZHB properly prohibited the existing lot’s
subdivision where it resulted in a new nonconforming lot’s creation and/or
improperly reduced an existing nonconforming lot’s size.3              Specifically, the
Township argues: (1) the proposed subdivision creates a nonconforming lot under the
current Ordinance; (2) the Ordinance prohibits the reduction of a nonconforming lot’s
size; and (3) the VB District portion of the lot should be included when measuring the
existing lot size. Applicant rejoins: (1) the subdivision creates a new lot comprised
completely of vacant land within the VB District; (2) the proposed subdivision does
not increase the extent of the existing nonconformities nor create a new
nonconforming lot; and (3) the Ordinance expressly requires that the permitted
density in the VR District be calculated solely on the lot area within the VR District.
             Initially, Section 455-24 of the Ordinance provides:
             The following area and bulk regulations shall apply within
             all Village of Berwyn Districts:
             A. Minimum lot size (net lot area).
             (1) There is no minimum lot size in the VB and VT
             Districts.
             (2) Minimum lot size in the VR District is 5,000 square feet
             per dwelling unit.


      2
         No appeal was taken from the trial court’s affirmance of the ZHB’s boundary line
demarcation.
      3
        The ZHB filed a joinder brief, wherein, it joined in the Township’s brief.


                                           4
Reproduced Record (R.R.) at 11. Section 455-132 of the Ordinance provides the
following definitions:
             LOT
             A designated parcel, lot or area of land established by a plat
             or otherwise as permitted by law and to be used, developed
             or built upon as a unit.
             A. LOT AREA, GROSS
             The area of land contained within the limits of the legally
             described property lines bounding the lot.
             B. LOT AREA, NET
             The area of land contained within the limits of the legally
             described property lines bounding the lot, exclusive of any
             street or railroad rights-of-way, utility easements and flag
             lot access strips, easements for fuel or communications
             transmission, whether below or above ground, that do not
             exclusively serve the lot traversed, very steep slopes and
             50% of moderately steep slopes, above[-]ground
             storm[]water management basins greater than 18 inches in
             depth that do not exclusively serve the lot, below-ground
             storm[]water management basins, and areas within riparian
             buffer zones, along with the natural resources that they
             protect, provided that at least 50% of the required minimum
             lot area be contiguous land lying outside of these
             exclusions.
R.R. at 15. The law is well settled:
             A lawful nonconforming use is a use that predates the
             enactment of a prohibitory zoning restriction, and the right
             to continue a legal nonconforming use is entitled to the
             constitutional protection of due process. In Pennsylvania
             Northwest Distributors, Inc. v. Zoning Hearing Board of
             Moon Township, . . . 584 A.2d 1372, 1375 ([Pa.] 1991),
             [our Supreme C]ourt explained that the fundamental basis
             for the protection of uses and structures that were lawful
             when instituted is the ‘inherent and indefeasible’ right of
             this Commonwealth’s citizens to possess and protect
             property guaranteed by [Article I, Section 1 of the
             Pennsylvania Constitution].          Thus, ‘[a] lawful

                                           5
                nonconforming use establishes in the property owner a
                vested property right which cannot be abrogated or
                destroyed, unless it is a nuisance, it is abandoned, or it is
                extinguished by eminent domain.’                 [Northwest
                Distributors,] 584 A.2d at 1375.

Hunterstown Ruritan Club v. Straban Twp. Zoning Hearing Bd., 143 A.3d 538, 545
(Pa. Cmwlth. 2016) (citations omitted).
                The Township cites McCarry v. Haverford Township Zoning Hearing
Board, 113 A.3d 381 (Pa. Cmwlth. 2015), to support its position. However, McCarry
involved a zoning application for a dimensional variance to permit the applicant to
subdivide a lot which contained a nonconforming building in violation of the
applicable ordinance. Thus, the applicant had to show an unnecessary hardship,
which he failed to do. Here, Applicant is not seeking a variance,4 nor does he need
one, as he is merely seeking to subdivide the Property at the VB/VR District
boundary. Accordingly, McCarry is inapposite.
                The Township also relies upon Guido v. Township of Sandy, 880 A.2d
1220 (Pa. 2005), to substantiate its argument. In Guido, the issue before our Supreme
Court was whether the fact that the applicant leased the property with an option to
buy before the enactment of the ordinance prohibiting the sale, made the sale after the
ordinance a permissible nonconforming condition. The Guido Court held that it did
not. The date the applicant exercised the option controlled, not the date he obtained
the option. Here, the nonconforming condition existed before the Ordinance was
enacted. Thus, Guido is distinguishable from the case at bar.
                In the instant matter, it is undisputed that the Property contained 133
dwelling units on a 250,429-square-foot lot and the nonconforming condition existed
before the enactment of Section 455-24 of the Ordinance which requires a minimum
lot size of 5,000 square feet per dwelling unit in the VR District, i.e., a 665,000-

      4
          In the instant case, Applicant withdrew its variance request without prejudice.
                                                   6
square-foot lot.   The Revised Plan divides the Property at the VB/VR District
boundary.    Thus, Lot 1 is a vacant lot and Lot 2 contains the nonconforming
condition.   At issue before the ZHB was whether the nonconforming lot size
calculation includes the portion of the Property exclusively contained in the VR
District or the entire Property. Because the subdivision creates a new lot, it is not
permitted if the subdivision enlarges the nonconformity. See Section 455-13 of the
Ordinance (“no new lot shall be created unless in conformity with all of the
appropriate regulations”). Consequently, if only the VR District portion is used, the
subdivision is permitted.
             The ZHB determined that because the Ordinance defined lot as “[t]he
area of land contained within the limits of the legally described property lines
bounding the lot[,]” R.R. at 15, the entire Property was included in the calculation
and thus prohibited the subdivision.       The trial court, however, ruled that “the
proposed subdivision does not affect in any way the portion of the Property in the VR
District. Be it intact or subdivided, the total area of the Property that lies within the
VR District will not change regardless of whether the Property is subdivided.” Trial
Ct. Op. at 6-7. This Court agrees with the trial court.
             “[P]ermissive terms in zoning ordinances should be construed
expansively, so as to afford the landowner the broadest possible use and enjoyment of
his land.” Bakerstown Container Corp. v. Richland Twp., 500 A.2d 420, 421 (Pa.
1985); see also Caln Nether Co., L.P. v. Bd. of Supervisors of Thornbury Twp., 840
A.2d 484, 491 (Pa. Cmwlth. 2004) (“[O]rdinances are to be construed expansively,
affording the landowner the broadest possible use and enjoyment of its land.
Undefined terms are given their plain meaning, and any doubt is resolved in favor of
the landowner and the least restrictive use of the land.”) (citation omitted).
             The Property’s nonconforming condition was due to the establishment of
the Village District. More specifically, the portion of the Property in the VR District
                                            7
was not compliant with Section 455-24.A(2) of the Ordinance. As that portion of the
Property will not change as a result of the proposed subdivision, neither will the
extent of the nonconforming condition – the proposed subdivision will maintain the
exact ratio of lot area within the VR District per dwelling unit, and, thus, retain the
precise extent of the nonconformity. Accordingly, the trial court properly reversed
the ZHB’s decision prohibiting the proposed subdivision.
            For all of the above reasons, the trial court’s order is affirmed.



                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Benson Homes and Development, LLC :
                                  :
                  v.              :
                                  :
Easttown Township Zoning Hearing  :
Board and Easttown Township       :
                                  :         No. 984 C.D. 2018
Appeal of: Easttown Township      :


                                     ORDER

            AND NOW, this 2nd day of April, 2019, the Chester County Common
Pleas Court’s June 14, 2018 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
